GITO’S FORECAST NOTES

in

REMEDIAL LAW
for

2023 BAR EXAMINATION

by:

JUDGE GENER M. GITO, LL.M. D.C.L.

I. JURISDICTION

1. It is the power and authority of the court to hear, try, and decide the
case (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September
23, 2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17,
2016). Jurisdiction of the court includes the authority to execute its
decision. It includes the power of the court to control the execution
of its decision (Echegaray vs. Secretary of Justice, 301 SCRA 96, 108).

2. A commercial case was filed in RTC which is not designated as a

Commercial Court. The said Court dismissed the case for lack of
jurisdiction. Is the dismissal correct? NO. The dismissal is not
correct. It should have been referred to the RTC designated by the SC
as a Commercial Court (Gonzales vs. GJH Land, G.R. No. 202664,
November 20, 2015).

3. How is jurisdiction over the subject matter conferred?

Jurisdiction over the subject matter is conferred by law which

may either be the Constitution or a statute (City of Dumaguete vs.
PPA, 659 SCRA 102, 119). Only statute can confer jurisdiction (BF
Homes, Inc., vs Meralco, 636 SCRA 495, 510).

NOTE:

If one wants to know the jurisdiction of the court, he must look into
the law on jurisdiction not the rules of court or any procedural rule. If
jurisdiction over the subject matter is conferred by law, then: 1)
It cannot be subject of agreement of the parties. 2) It cannot be
acquired, waived, enlarged, or diminished by any act or omission of
the parties. 3) It cannot be conferred by acquiescence by the court.

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4. When may jurisdiction be challenged?

1) In a motion to dismiss (Section 12, Rule 15). 2) It may be raised at

any stage of the proceeding, even for the first time on appeal (Calimlim
vs. Ramirez, 118 SCRA 399; Pangilinan vs. CA, 321 SCRA 51).

5. The general rule is that jurisdiction may be challenged even for

the first time on appeal, is there an exception?

Yes. The application of the doctrine of jurisdiction by estoppel. The

doctrine of estoppel by laches was initially emphasized in the doctrinal
case of Tijam vs. Sibonghanoy, 23 SCRA 29. Here, the SC barred a
belated objection to jurisdiction because the party questioned the
jurisdiction only when an adverse decision is rendered and
because the party raised only the issue after 15 years. The party
participated in all stages of the proceedings and sought affirmative
relief from the court.

NOTE:

Estoppel by laches may only be invoked to bar the defense of

lack of jurisdiction if the factual milieu is analogous to Tijam vs.
Sibonghanoy (Sps. Erorita vs. Sps. Dumlao, GR 195477, January 25,
2016). The contention that the defense of lack of jurisdiction may
be waived by estoppel through the active participation in the
trial is not the general rule, but an exception, best characterized
by the circumstances in Tijam vs. Sibonghanoy (Mangaliag vs.
Catubig-Pastoral, 474 SCRA 153, 162).

6. How is jurisdiction over the subject matter determined? It is

determined by the allegations in the complaint, as well as by the
character of the relief sought (Geronimo vs. Calderon, GR No. 201781,
December 10, 2014; Cabling vs. Dangcalan, GR No. 187696, June 15, 2016).
This is regardless of whether or not the plaintiff is entitled to
recover all or some of the claims or reliefs sought therein
(Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23,
2015; Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17,
2016). Thus, Caption of the case is not controlling (Sps. Erotica vs.
Sps. Dumlao, GR no. 195477, January 25, 2916). Defenses and
evidence do not determine jurisdiction (Balibago Faith Baptis Church,
Inc., Faith in Christ Jesus Baptist church, GR No. 191527, August 22, 2016).
The amount awarded does determine jurisdiction (Dionisio vs.
Sison Puerto, 60 SCRA 471, 477).

7. What if the defendant in an ejectment case raises the issue of

tenancy in his answer, should the court dismiss the case for lack
of jurisdiction? While the MTC does not lose its jurisdiction over an
ejectment case by defendant’s alleging the existence of tenancy
relationship, yet, if after the hearing, tenancy had in fact been shown,
the court should dismiss the case for lack of jurisdiction (De la Cruz,
vs. CA, 510 SCRA 103, 116).
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 8. What is jurisdiction over the parties? Jurisdiction over the parties
refers to the power of the court to make decisions that are binding on
persons (De Pedro vs. Romasan, supra). It is the legal power of the court
to render a personal judgment against the party to an action or
proceeding (Black’s Law Dictionary, 5th Ed., 767, citing Imperial vs. Hardy,
La 302 So.2d 5, 7, cited in Riano, Civil Procedure, 2016).

9. How is jurisdiction over the parties acquired? Plaintiff upon the

filing of the compliant. Defendant – upon valid service of summons
and voluntary appearance. To constitute voluntary appearance, it must
be the kind that amount to voluntary submission to the jurisdiction of
the court. Submission to the jurisdiction of the court takes the form
of appearance that seeks affirmative relief except when the relief
sought is for the purpose of objecting to the jurisdiction of the
court over the person of the defendant. Thus, if he participates in
the trial despite defective service of summons, it is tantamount to
voluntary appearance (De Pedro vs. Romasan Development, supra).

10. What is concurrent jurisdiction? When two or more court can

exercise original jurisdiction over the case. For example, certiorari
petition, the RTC, CA and SC have original and concurrent
jurisdiction. If this is the case, then, the PRINCIPLE OF
HIERARCHY OF COURTS WILL APPLY.

11. What is the doctrine of Primary Jurisdiction? It is the power and

authority vested by the Constitution or by statute upon an
administrative body to act upon a matter by virtue of its specific
competence. The doctrine of primary jurisdiction prevents the court
from arrogating unto itself the authority to resolve a controversy
which falls under the jurisdiction of a tribunal possessed with special
competence (Lim vs. Gamosa, G.R. No. 193964, December 2, 2015).

II. FILING FEE

1. It has been long settled that while a court acquires jurisdiction over
the case only upon payment of the docket fees, its non-payment at the
time of the filing of the complaint does not automatically cause the
dismissal of the case, provided the fees are paid within a reasonable
time. Even inadequate payment of filing will not divest the court of
its jurisdiction. This rule is applicable even if the claim for damages of
the plaintiffs is metered or progressing as case the case is pending
(Unicapital vs. Consing, G.R. Nos. 175277 & 175285, September
11, 2013).

III. INDIGENT LITIGANT

1. Who is an indigent litigant? An indigent is someone whose income,

and that of his immediate family, does not exceed double the monthly
minimum wage AND does not own real property with the fair market
value exceeding P300,000. If he is an indigent litigant, he is not
required to pay filing fee.
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IV. ACTION

1. What is action in personam? It is an action to enforce personal

rights and obligation against a person and is based on the jurisdiction
of a person. The purpose of action in personam is to impose through a
judgment some responsibility or liability directly upon the person of
the defendant.

2. What is an action in rem? It is an action against the thing (res) itself,

rather than against a person. It is not just binding on a particular
person, but it is binding against the whole world. NOTE: all cases
under Section 1, Rule 72 are examples of action in rem.

3. What is the meaning of a “thing”? The phrase, “against the thing,”

to describe in rem actions is a metaphor. It is not the “thing” that is
the party to an in rem action; only legal or natural persons may be
parties even in in rem actions. “Against the thing” means that
resolution of the case affects interests of others whether direct or
indirect. It also assumes that the interests – in the form of rights or
duties – attach to the thing which is the subject matter of litigation. In
actions in rem, our procedure assumes an active vinculum over those
with interests to the thing subject of litigation (De Pedro vs.
Romasan, G.R. No. 194751, Novembere 26, 2014).

4. What is an action quasi-in-rem? It is an action where an individual

is named as defendant and the purpose of the proceeding is to subject
defendant’s property to a burden or lien. EXAMPLE: An action for
foreclosure of real estate mortgage; quieting of title, partition.

5. What is the significance of knowing action in personam, action

in rem and quasi in rem? The distinction is important to determine
whether or not jurisdiction over the person of the defendant is
required and consequently the type of summons to be employed.
NOTE: To resolve whether there was valid service of summons on
respondents, the nature of the action filed against them must first be
determined. As the Court explained in Asiavest Limited vs. Court
of Appeals (G.R. No. 128803, September 25, 1998, 296 SCRA 539,
552), it will be helpful to determine first whether the action is in
personam, in rem, or quasi in rem because the rules on service of summons
under Rule 14 of the Rules of Court of the Philippines apply according
to the nature of the action (Gomez vs. CA, 425 SCRA 98, 103).

6. Is notice or summons required in an in rem and quasi in rem

actions? YES. Regardless of the nature of the action, proper service
of summons is imperative. A decision rendered without proper service
of summons suffers a defect in jurisdiction. (De Pedro vs. Romasan
Development Corp. GR No. 194751, November 26, 2014).

7. What is a cause of action? Act or omission by which a party violates

the right of another (Section 2, Rule 2).

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8. What are the elements of a cause of action? The following are the
elements of the a cause of action: (a) a right in favor of the plaintiff
by whatever means and under whatever law it arises or is created; (b)
an obligation on the part of the named defendant to respect or not to
violate such right; and (c) an act or omission on the part of the named
defendant violative of the right of the plaintiff or constituting a breach
of the obligation of defendant to the plaintiff for which the latter may
maintain an action for recovery (Mercene v. Government Service
Insurance System, G.R. No. 192971, January 10, 2018).

9. What is the test to determine whether a complaint state a cause

of action of not? If the court can render a valid judgment based on
the allegation in the complaint, the complaint states a cause of action.
As a general rule, evidence aliunde should not be considered. But
annexed documents to the complaint may be considered because they
are part of the complaint (Sea Land Service, Inc., vs. CA, 327 SCRA
135). NOTE: However, with the amendment introduced to the
1997 Rule on Civil Procedure, evidence should be considered in
determining whether the complaint states a cause of action.

10. What is splitting of cause of action? An act of a party of instituting

more than one suit for a single cause of action. A single cause of action
may give rise to several remedies. The availment of these remedies is
prohibited as it is tantamount to splitting of cause of action.

11. What is the remedy of the defendant if there is splitting of cause

of action?

To file a motion to dismiss, either on the ground of litis pendencia or

resjudicata.

12. What is joinder of causes of action? It is the assertion in one

pleading, in alternative or otherwise, as many causes of action as he
may have against an opposing party (Sec. 5, Rule 2).

13. What are the conditions for a proper joinder of causes of action?
A proper joinder of causes of action must comply with the following
conditions: 1) The party joining causes of action shall comply with the
rules on joinder of parties. 2) The joinder shall not include special civil
actions or actions governed by special rules; 3) Where the causes of
actions 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 actions falls within the jurisdiction of said court and
venue lies therein; 4) Where the claims in all causes of action are
principally for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction (Section 5, Rule 2).

14. When is joinder of parties allowed? All persons in whom or against

whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
severally or in the alternative, may, except as otherwise provided in
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 these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any questions of law or fact common to all such
plaintiffs or to all such defendants may arise in the action (Section 6,
Rule 3). Thus, the causes of action must arise out of the same
transaction or series of transaction and there must be common
question of fact and law between or among the parties joined.

V. PARTIES

1. Who is a real party-in-interest? A real party in interest is the party

who stand to be benefited and injured by the judgment of the suit, or
the party entitled to the avails of the suit. Unless otherwise authorized
by law or the rules of court, every action must be prosecuted or
defended in the name of the real party in interest. (Sec. 2, Rule 3).
The determination of who the real party in interest is requires the
examination of elements of a cause of action. A cause of action
involves the existence of a right and violation of such right. Thus, the
owner of the right violated is the real party in interest as plaintiff and
the one violating the right is the real party in interest as defendant.

2. What is the effect if the party is not a real a real party-in-interest?

The complaint may be dismissed for lack of cause of action if the
defendant is not the real-party-interest (Sec.1(g), Rule 16). If the
plaintiff is not the real party-in-interest, complaint may be dismissed
under (Section 1(d), Rule 16). NOTE: Under the amendment to
the Rules on Civil Procedure, failure to state a cause of action
cannot anymore be used as ground for motion to dismiss, rather
they it should not be alleged as an affirmative defense (Section
12, Rule 8).

3. Who is an indispensable party? An indispensable party is real party

in interest without whom no final determination can be had of an
action. Indispensable parties shall be joined as plaintiffs or defendants
(Sec. 7, Rule 3).

4. What is the effect of failure to implead an indispensable party?

Failure to join an indispensable party will not result in the outright
dismissal of the action. Instead, parties may be dropped or added by
the court on motion of any party or on its own initiative at any stage
of the action and on such terms as are just. (Sec. 11, Rule 3). It is
when the order of the court to implead an indispensable party goes
unheeded may the case be dismissed for failure to comply with the
order of the Court (Sec. 3, Rule 17; Plasabas vs. CA 582 SCRA
686). Any decision rendered by a court without first obtaining the
required jurisdiction over indispensable parties is null and void for
want of jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January
20, 2016), not only as to the absent parties but even as to those present
(People vs. Go, GR 201644, September 24, 2014).

5. Who is a necessary party? It is one who is not indispensable but

who ought to be joined as a party if complete relief is to be accorded
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 as to those already parties, or for a complete determination or
settlement of the claim subject of the action (Sec. 8, Rule 3).

6. What is the duty of a pleader if a necessary party is not joined?

Whenever in any pleading in which a claim is asserted, a necessary
party is not joined, the pleader shall set forth the name of the
necessary party, if his name is known, and shall state why such party
is omitted (Sec. 9, Rule 3).

7. May the Court order joinder of necessary party? If the reason

given for the non-joinder of necessary party is found by the court not
meritorious, it may order the pleader to join the omitted party if
jurisdiction over his person may be obtained (Sec. 9, Rule 3).

8. What is the effect of failure to comply with the order of the

Court? It shall be deemed a waiver of claim against such party. (Sec.
9, Rule 3).

9. What is the effect if the non-inclusion of the necessary party is

justified? 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.
(Sec. 9, Rule 3).

10. In the case of Aceron v. Ang, G.R. No. 186993, August 22, 2012, a case
for collection of a sum of money was filed by Atty. Aceron in behalf
of Theodore and Nancy Ang. Theodore and Nancy reside in
California, they are non-residents, while defendants reside in Bacolod.
The action was filed by Atty. Aceron in Quezon City where he resides.
A motion to dismiss was filed but it was denied by RTC. The question
is: is the representative-lawyer a real party in interest, making
the filing of the complaint in court to be in the place where he
resides? Answer: NO. The representative is just a representative and
NOT a real party in interest.

11. Is misjoinder of parties or non-joinder of parties a ground for

dismissal of an action? Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an action. Parties may be dropped
or added by order of the court, on motion of any party or upon its
own initiative at any stage of the action and on such terms as are just.
Any claim against a misjoined party may be severed or proceeded with
separately (Sec. 11, Rule 3).

12. What is a class suit? When the subject matter of controversy is one
of common or general interest to many persons so numerous that it
is impracticable to join them all as parties, a number of them which
the court finds to be sufficiently numerous and representative as to
fully protect the interest of all concerned may sue or defend for the
benefit of all. (Sec. 12, Rule 3).

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13. Requisites of class suits. 1) The subject matter of the controversy
is one of common or general interest to many persons. 2) The parties
are so numerous that it is impracticable to bring them all before the
court. 3) The object of the suit is to obtain relief for or against
numerous persons.

14. What is common or general interest? A class suit does not require
a commonality of interest in the questions involved in the suit. What
is required by the Rules is a common or general interest in the subject
matter of the litigation. The “subject matter” of the litigation meant
the physical, the things real or personal, the money, lands, chattels,
and the like, in relation to the suit which is prosecuted and not the
delict or wrong committed by the defendant (Mathay vs.
Consolidated Bank & Trust Co., 58, SCRA 559, 571).

15. What is the duty of the lawyer if case of a party dies? If the party
dies and the claim is not extinguished, his duty is to inform the court
of such fact within 30 days after such death and to give the name and
address of the legal representatives of the deceased party. (Sec. 16,
Rule 3).

16. May the heirs of the deceased party be allowed to substitute?

Yes. The heirs of the deceased may be allowed to be substituted for
the deceased without need for the appointment of executor or
administrator (Sec. 16, Rule 3).

17. What is the rule in an action for sum of money if one of the
defendant dies? When the action is for recovery of money, arising
from contract, express or implied and the defendant dies before entry
of final judgment in the court in which the action was pending at the
time of such death, it shall not be dismissed but it shall be allowed to
continue until final judgment. Favorable judgement shall be claimed
in the estate proceedings of the deceased defendant (Sec. 20, Rule 3).
NOTE: The favorable judgement cannot be in action for sum of
money arising from contract express or implied when the
defendant dies, subject of motion for execution. The judgment
shall be filed as a claim in the settlement of estate pursuant to
Section 5, Rule 86. HOWEVER: if the action for sum of money
based on injury to person or property, it need not be filed in the
settlement of estate because it may be executed against the executor
or administrator (Section 1, Rule 87).

18. What are actions that survive? The following actions survive: a)
action to recover real or personal property; b) action to enforce lien
thereon; c) action to recover damages for an injury to person; d)
action for quasi-delict (Section 1, Rule 87).

19. Respondents obtained several loans from Maybank. The loans were
secured a real estate mortgage over the properties respectively owned
by Sian Agricultural Corp., Sebastian, Dela Pena, Gonzales. All of the
mortgagees executed a SPA in favor of the respondent allowing the
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 latter to mortgage their respective properties to Maybank to secure the
loans of the respondent. The loans were not collected after 17 years
nor any action filed on the said loans. Respondent filed a Petition with
the RTC to cancel the annotations of mortgage on the respective
certificate of titles over the land of the mortgagees.

Is cancellation of mortgage, a real action or personal action? The

action to cancel the mortgage is a personal action, as compared to an
action to foreclose such mortgage, which is a real action that involves
real property (PNB-Republic Bank (Maybank) vs. Sian-Limsiaco
G.R. No. 196323, February 8, 2021, J. Hernando).

Is respondent, (attorney-in-fact) a real party in interest in filing

the petition to cancel the annotation of mortgage on the
respective certificate of titles over the lands of the mortgagees?

Yes. The suit was instituted in a representative capacity. It must be

note that the respondent was given an SPA by the owners of the
property allowing the respondent to mortgage their properties to
secure the loans obtained by the respondent. Implied in the authority
to mortgage is the authority to cancel the mortgage because it is an act
that would benefit the principal which is allowed under Article 1882
of the Civil Code (PNB-Republic Bank (Maybank) vs. Sian-
Limsiaco, G.R. No. 196323, February 8, 2021, J. Hernando).

Is it required that the mortgagees be named in the suit as the

case involved their real properties pursuant to Section 3, Rule 3?

No. Because the case instituted by the respondent does not involve
the properties of the principal. The mortgage contract itself does not
involve real property, but merely the right to foreclose upon such real
property should the necessary legal pre-conditions are met, such as a
breach in the principal contract to which the mortgage is merely an
accessory of (PNB-Republic Bank (Maybank) vs. Sian-Limsiaco
G.R. No. 196323, February 8, 2021, J. Hernando).

VI. VENUE

1. Venue is the place or the geographical area in which a court with

jurisdiction may hear and determine a case or the place where a case
is to be tried (Black’s Law Dictionary; City of Lapu-Lapu vs.
PEZA, GR No. 184203, November 26, 2014). Venue in civil cases
is procedural and not substantive. Thus, it may be waived or subject
to agreement of the parties.

2. What is the basic consideration in determining venue of the

action? The venue of the action would be determined is the
determination of whether an action is real or personal. SECTION 1.
Venue of Real Actions. — Actions affecting title to or possession of
real property, or interest therein, shall be commenced and tried in the
proper court which has jurisdiction over the area wherein the real
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 property involved, or a portion thereof, is situated (Rule 4).
SECTION 2. Venue of Personal Actions. — All other actions may
be commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where
he may be found, at the election of the plaintiff (Rule 4).

3. What is the meaning of “residence” in personal action?

It means the place of abode, whether permanent of temporary, of the

plaintiff or the defendant, as distinguished from “domicile” which
denotes a fixed permanent residence to which, when absent, one has
the intention of returning (Dangwa Transportation Company vs.
Sarmiento, GR No. L-22795, January 31, 1977). Residence of a
domestic corporation is the place within the Philippines, where its
principal office is located (Section 14[3], Corporation Code; Cohen
vs. Benguet Commercial Co., 34 Phil. 526).

4. Stipulations as to venue. The parties may agree on a specific venue

which could be in a place where neither of them resides (Universal
Robina Corporation vs. Lim, 535 SCRA 95, 99). In real actions, like
unlawful detainer, the parties may stipulate on a venue other than the
place where the real property is situated (Union Bank of Philippines
vs. Maunlad Homes, Inc., 678 SCRA 539, 550).

5. Requisites of stipulations on exclusive venue: 1) It must be in

writing; 2) It must be made before filing of an action; 3) The
agreement must be exclusive.

6. NOTE: to make it exclusive there must words with restrictive

meaning - Examples of words with restrictive meanings are: “only”,
“solely”, “exclusive in this court”, “in no other courts, save..”,
“particularly”, “no where else but/except” or words of equal import
(Pacific Consultants International Asia, Inc., vs. Schonfeld, 516
SCRA 209,229).

7. PLEASE TAKE NOTE: A restrictive stipulation on venue is not

binding when the validity of the contract is assailed (Briones vs. CA,
GR No. 204444, January 14, 2015).

8. The case of Paglaum involves multiple contracts (real estate mortgage

1, 2 and 3, then a restructuring agreement). There are different venues
stipulated. In the first contract, it is Manila excluding all other venues.
In the 2nd contract, Cebu excluding all other venues. The party
defaulted in its obligation so the loan was restructured. A new one was
executed and then there is now a venue stipulation. Which venue
stipulation will apply in the event of litigation? It will be the most
recent one. Because it supersedes the other contracts (Paglaum
Management Development Corp., vs. Union Bank, G.R. No.
179018, April 17, 2018).

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 9. What if a promissory note has no venue stipulation, but there is a
mother loan agreement. The amount appearing on the promissory
note was not paid when due so an action for collection for sum of
money was instituted. What venue will have to be followed? The
Supreme Court said that if the mother contract was directly connected
and intertwined with the promissory note, then the promissory note
will be bound by the venue stipulation.

VII. PLEADINGS

1. When is Reply necessary? It is necessary when the defense of the

defendant is based on an actionable document and the actionable
document is attached to the Answer (Sections 2 and 10, Rule 6).

2. May grounds for Motion to Dismiss under Section 1, Rule 16 of

the 1997 Rules on Civil Procedure be alleged as affirmatives
defenses? Yes. The last paragraph of Section 5, Rule 6 provides:
Affirmative defenses may also include grounds for the dismissal of a
complaint, specifically, that the court has no jurisdiction over the
subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior
judgment.

3. Is Motion to Dismiss under Rule 16 of the old Rule still allowed?

The general rule is that it is not allowed. There are only four grounds
by which a Motion to Dismiss may be filed, that is based on the
following grounds: 1) lack of jurisdiction over the subject matter;
2) litis pendencia; 3) res judicata; and, 4) prescription (Section
12, Rule 15).

4. What may be raised as affirmative defenses? The grounds

mentioned in the second paragraph of Section 5(b), Rule 6 and
Section 12, Rule 8? In Section 5(b), the following may be alleged as
affirmative defenses: fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession and avoidance.
Affirmative defenses may also include grounds for the dismissal of a
complaint, specifically, that the court has no jurisdiction over the
subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior
judgment. Section 12, Rule 8 provides for the following grounds:
a. That the court has no jurisdiction over the person of the defending party; b.
That venue is improperly laid; c. That the plaintiff has no legal capacity to sue;
d. That the pleading asserting the claim states no cause of action; and e. That a
condition precedent for filing the claim has not been complied with.

5. What should the court do if affirmative defenses are raised? The

Court should resolve them within a period of thirty (30) days from the
filing of the Answer. The Court may conduct summary hearing for
fifteen (15) days if the grounds relied upon are those provided in
Section 5(b), Rule 6 and should resolve the same within thirty (30)
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 days from the termination of the summary hearing (Section 12, Rule
8).

6. If the Court denies the affirmative defenses, may defendant file

a Motion for Reconsideration, Petition for Certiorari,
Prohibition or Mandamus? NO. The new Rules provide that
“affirmative defenses, if denied, shall not be the subject of a motion
for reconsideration or petition for certiorari, prohibition or mandamus,
but may be among the matters to be raised on appeal after a judgment
on the merits” (Section 12(e), Rule 8).
7. If the Court grants the affirmative defenses, may the plaintiff file
a motion for reconsideration or certiorari? YES. Motion for
reconsideration or certiorari is prohibited only when the Court denies
the affirmative defenses. But when the grants the affirmative defenses,
it will lead to the dismissal of the case which may either be dismissal
with prejudice or dismissal without prejudice. The remedy if dismissal
with prejudice is appeal (Section 13, Rule 12). Hence, motion for
reconsideration may be filed prior to appeal under Rule 37. On the
other hand, if dismissal is without prejudice, the remedy is certiorari
under Section 1, Rule 41. And motion for reconsideration is a
condition for the filing of certiorari.

8. Compulsory counterclaim. A compulsory counterclaim is one

which, being cognizable by the regular courts of justice, arises out or
relates to the transaction or occurrence constituting the subject matter
of the opposing party’s claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction. Such counterclaim must be within the jurisdiction of the
court both as to the amount and the nature thereof, except that in the
original action before the RTC, the counterclaim may be considered
compulsory regardless of the amount (Section 7, Rule 6).

9. Elements of compulsory counterclaim. 1) It arises out of or is

necessarily connected with the transaction or occurrence which is the
subject matter of the opposing’s party’s claim. 2) It does not require
for its adjudication the presence of third parties over whom the court
cannot acquire jurisdiction. 3) It is cognizable by the regular courts of
justice and such courts have jurisdiction to entertain the counterclaim
both as to the amount and nature.

10. What is the effect of failure to plead counterclaim? A

counterclaim not set up shall be barred (Sec. 7, Rule 6). However, a
counterclaim which either matured or was acquired by a party after
serving his pleading may, with the permission of the court, be
presented as counterclaim by supplemental pleading before judgment
(Sec. 9, Rule 11).

11. If the amount of the counterclaim exceeds the jurisdiction of the

court, what is the effect? The counterclaim cannot be treated as

12
 compulsory, but permissive since the amount exceeds the jurisdiction
of the Court.

12. What if the amount claimed as counterclaim is not within the

jurisdiction of the RTC, can the latter court dismiss said
counterclaim? No. When the original action is filed with the RTC,
the counterclaim may be deemed compulsory regardless of the
amount (Sec. 7, Rule 6).

13. Can a party file a Motion to Dismiss with counterclaim? No. If

the dismissal of the main action results in the dismissal of the
counterclaim already filed, it stands to reason that the filing of a
motion to dismiss the complaint is an implied waiver of the
compulsory counterclaim because the grant of the motion ultimately
results in the dismissal of the counterclaim (Financial Building
Corp. vs. Forbes Park Association, 338 SCRA 346, 354).

14. What is a crossclaim. A crossclaim is any claim by one party against

a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim
therein. Such crossclaim may cover all or part of the original claim
(Section 8, Rule 6).

15. What is the effect if a crossclaim is not set-up? It shall be barred

(Sec. 2, Rule 9). NOTE: the crossclaim that is considered barred is
the crossclaim already existing at the time the answer is filed, not the
crossclaim that may mature or may be acquired after service of the
answer. As to the latter Section 9, Rule 11 declares that it may, by leave
of court, be presented by supplemental pleading before judgment.

16. What are the grounds to deny third-party claim? The third
(fourth, etc.)-party complaint shall be denied admission, and the court
shall require the defendant to institute a separate action, where: (a)
the third (fourth, etc.)-party defendant cannot be located within thirty
(30) calendar days from the grant of such leave; (b) matters extraneous
to the issue in the principal case are raised; or (c) the effect would be
to introduce a new and separate controversy into the action (Section
11, Rule 6).

17. What are the content requirements of a pleading? The following

must be stated in a pleading: a) name of the witnesses; b) summary of
their respective testimonies; c) judicial affidavits of the witnesses must
be attached to the pleading; and d) object and documentary evidence
(Section 6, Rule 7).

18. What is the effect if the judicial affidavit of the witnesses is not
attached to the pleading? They may not be allowed to testify
(Section 6, Rule 7).

19. Amendment of the Pleading. A party may amend his pleading once
as a matter of right at any time before a responsive pleading is served
13
 or, in the case of a reply, at any time within ten (10) days after it is
served (Section 2, Rule 10). Except as provided in the next preceding
Section, substantial amendments may be made only upon leave of
court. But such leave shall be refused if it appears to the court
that the motion was made with intent to delay or confer
jurisdiction on the court, or the pleading stated no cause of
action from the beginning which could be amended (Section 3,
Rule 10). PLEASE TAKE NOTE: There are now grounds to deny
the motion for leave to admit amended pleading. The grounds are
provided in Section 3, Rule 10.

20. May a pleading be amended as a matter of right after a motion

to dismiss is filed? Yes, because a motion to dismiss is not a
responsive pleading (Paeste vs. Jaurigue, 94 SCRA Phil. 179, 181).
NOTE: Even if the motion is granted by the Court, the plaintiff may
still amend his complaint as a matter of right before the dismissal
becomes final as long as no answer has yet been served (Bautista vs.
Maya-Maya Cottages, 476 SCRA 416).

21. Amendment to conform to evidence. When issues not raised by the

pleadings are tried with the express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings. No amendment of such pleadings deemed amended is
necessary to cause them to conform to the evidence (Section 5, Rule
10).

22. Debtor executed 3 PN’s in favour of the Creditor. One of the PN’s
became due and demandable. Thus, debtor not paying the PN,
creditor filed a collection suit against the debtor. While the case is
pending, the other PNs became due and demandable also. The
Creditor included the last two PN as evidences in the case pending. It
was introduced without the objection of the Debtor? Can the Court
render judgment on the last two PNs? NO. Section 5 thereof
applies to situations wherein evidence not within the issues raised in
the pleadings is presented by the parties during the trial, and to
conform to such evidence the pleadings are subsequently amended on
motion of a party. Thus, a complaint which fails to state a cause of
action may be cured by evidence presented during the trial. However,
the curing effect under Section 5 is applicable only if a cause of action
in fact exists at the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts (Swagman Hotels
and Travel vs. CA, 455 SCRA 175).

23. May amendment be made to correct the jurisdictional defect

before a responsive pleading is served? YES. Since no responsive
pleading was served at the time of the amendment, the plaintiff can
amend his pleading a matter of course. It should emphasized that a
Motion to dismiss is not a responsive pleading (Gumabay vs.
Baralin, 77 SCRA 258; Soledad vs. Mamangun, 8 SCRA 110).

14
 24. May amendment be made to correct the jurisdictional defect
after an Answer was filed? NO. The amendment would require
leave of court, a matter which requires the exercise of discretion. The
exercise of this discretion requires the performance of a positive act
by the court. If it grants the amendment, it would be acting on a
complaint over which it has no jurisdiction (Section 3, Rule 10;
Campos Rueda Corp., vs. Bautista, 6 SCRA 240).

25. What is an actionable document? It is a document upon which a

party rely his or her defense.

26. How should one plead an actionable document? Whenever an

action or defense is based upon a written instrument or document, the
substance of such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be a part of the
pleading (Section 7, Rule 8).

27. What should the adverse party do if an actionable document is

alleged in the pleading? He should specifically deny under oath the
due execution and authenticity and due execution of the actionable
document, otherwise, its due execution and genuineness is deemed
admitted (Section 8, Rule 8).

28. What are the defenses which are incompatible with the
admission of the due execution and genuineness of the
actionable document? The following defenses are cut off: a)
Forgery of document; b) Lack of authority to execute the document;
c) The party charged signed the document in some other capacity than
that alleged in the pleading; d) The document was never delivered; e)
Document was not in the words and figures as set out in the pleading
(See: Hibberd vs. Rohde and Mcmillian, 32 Phil. 476; Imperial
Textile Mills vs. CA, 183 SCRA 584).

VIII. FILING, SERVICE & SUMMONS

1. What are the modes of filing? The following are the modes of filing:
a) Submitting personally the original thereof, plainly indicated as such,
to the court; b) Sending them by registered mail; c) Sending them by
accredited courier; or d) Transmitting them by electronic mail or other
electronic means as may be authorized by the Court in places where
the court is electronically equipped (Section 2, Rule 13).

2. What are the modes of service? The following are the modes of
service: a) personal service; b) mail; c) accredited courier; d)
electronic mail, facsimile transmission, other electronic means as may
be authorized by the Court; or e) as provided for in international
conventions to which the Philippines is a party (Section 5, Rule 13).

3. When is there presumptive service? There shall be presumptive

notice to a party of a court setting if such notice appears on the
15
 records to have been mailed at least twenty (20) calendar days prior to
the scheduled date of hearing and if the addressee is from within the
judicial region, or at least thirty (30) calendar days if the addressee is
from outside the judicial region (Section 10, Rule 13).

4. Summons is a writ by which the defendant is notified of the action

brought against him. It has two-fold purpose: 1) to acquire jurisdiction
over the person of the defendant; 2) to notify the defendant that an
action has been commenced against him.

5. When is a defendant deemed to have made a voluntary

appearance? A. By filing an answer (Guy vs. Gacott, GR No.
206147, January 13, 2016). B. By asking an affirmative relief from the
Court (Reicon Realty Builders Corp vs. Diamond Dragon, GR
No. 204796, February 4, 2015).

6. When is asking for affirmative relief not deemed a voluntary

appearance? The act of making a conditional appearance or special
appearance in court to object to the jurisdiction of the court over his
person, is not deemed a voluntary appearance or voluntary submission
to the jurisdiction of the court. BUT NOTE: SECTION 23., Rule
14, Voluntary Appearance. — The defendant's voluntary appearance
in the action shall be equivalent to service of summons. The inclusion
in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall be deemed a voluntary
appearance.

7. When may substituted service be effected? For justifiable causes,

the defendant cannot be served personally after at least three (3)
attempts on two (2) separate dates (Sec. 6, Rule 14).

8. MODES OF SUBSTITUTED SERVICE: a) By leaving copies of

the summons at the defendant's residence to a person at least eighteen
(18) years of age and of sufficient discretion residing therein; b) By
leaving copies of the summons at the defendant's office or regular
place of business with some competent person in charge thereof. A
competent person includes, but not limited to, one who customarily
receives correspondences for the defendant; c) By leaving copies of
the summons, if refused entry upon making his or her authority and
purpose known, with any of the officers of the homeowners'
association or condominium corporation, or its chief security officer
in charge of the community or the building where the defendant may
be found; and d) By sending an electronic mail to the defendant's
electronic mail address, if allowed by the court (Section 6, Rule 14).

9. Nature of Substituted service. Substituted service is a method

extraordinary in character, hence, may be used only as prescribed and
in the circumstances authorized by statute (Chu vs. Mach Asia
Trading Corp, 694 SCRA 302, 309-310). Hence, return which
merely states the alleged whereabouts of the defendants, without
indicating that such information was verified and without specifying
16
 the efforts exerted to serve the summons, is not enough for
compliance. So is mere general statement that such efforts were made
(Jose vs. Boyon, 414 SCRA 216).

10. What is the meaning of “reasonable time” under the rules? 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 (OCA vs. Cabrera-Faller,
A.M. Nos. RTJ-11-2301-2303, January 16, 2018).

11. How is service of summons effected upon a domestic private

entity? When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing partner,
general manager, corporate secretary, treasurer, or in-house counsel
of the corporation wherever they may be found, or in their absence
or unavailability, on their secretaries. If such service cannot be made
upon any of the foregoing persons, it shall be made upon the person
who customarily receives the correspondence for the defendant at its
principal office. In case the domestic juridical entity is under
receivership or liquidation, service of summons shall be made on the
receiver or liquidator, as the case may be. Should there be a refusal on
the part of the persons above-mentioned to receive summons despite
at least three (3) attempts on two (2) separate dates, service may be
made electronically, if allowed by the court, as provided under Section
6 of this rule (Section 12, Rule 14).

12. Service in person on defendant. Whenever practicable, the

summons shall be served by handling a copy thereof to the defendant
in person, or, if he refuses to receive and sign for it, by tendering it to
him (Sec. 6, Rule 14). Service of summons in the person of the
defendant is generally preferred over substituted service (Nation
Petroleum Gas, Inc., vs. RCBC, G.R. No. 188370, August 17,
2015). It is only when summons cannot be served personally within a
reasonable period of time that substituted service may be resorted to
(Chu vs. Mach Asia Trading Corp., 694 SCRA 302, 308).

13. NOTE: The court reiterated the rule that the impossibility of prompt,
personal service should be shown by stating in the proof of service that
efforts were made to find the defendant personally and that said efforts
failed; hence resort to substituted service. Since no such explanation
was made, there was a failure to faithfully, strictly, and fully comply
with the requirements of substituted service (Miranda vs. Court of
Appeals, 326 SCRA 278).

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 14. When is summons by publication allowed? A) In action in rem and
quasi in rem. B) the identity and whereabouts of the defendant are
unknown (Section 16, Rule 14). C) When the defendant is a resident but
temporarily absent of the Philippines (Section 18, Rule 14). D) Action
against non-resident and is not found in the Philippines (Section 17, Rule
14).

15. If the defendant is a resident of the Philippine but temporarily

absent therefrom, may substituted service be made instead of
extra-territorial service? YES. The SC ruled that in the case of
resident temporarily out of the Philippines, extraterritorial service is
not mandatory since Section 16 of Rule 14 uses the word “may” and
thus, substituted service of summons may be resorted to (Palma vs.
Galvez, March 10, 2010).

IX. MOTIONS AND DISMISSAL

1. What is the procedure for non-litigious motion? The Court shall

resolve the non-litigious motion within five (5) days from filing
(Section 4, Rule 15).

2. What is the procedure for litigious motion? The movant shall serve
copy of the litigious motion to the opposite party. The opposite party
shall file his or her comment or opposition within five (5) days from
receipt thereof. The Court shall resolve the motion within fifteen (15)
days from receipt of the comment or opposition or the expiration of
the period to file the same (Section 5, Rule 15).

3. Is it necessary to indicate the notice of hearing in the motion?

There is no need because it is up to the Court to set the Motion for
hearing (Section 6, Rule 15).

4. What are prohibited motions? The following are prohibited

motions: a) motion to dismiss, except if the grounds are: lack of
jurisdiction over the subject matter; litis pendencia, res judicata, and,
prescription; b) motion to hear affirmative defenses; c) motion for
reconsideration on court’s action on affirmative defenses; d) motion
to suspend proceedings without TRO or injunction; e) motion for
extension of time to file pleading, except answer; and motion for
postponement intended for delay (Section 12, Rule 15).

5. What are the grounds that if granted would make the dismissal
with prejudice? The following grounds if granted would make the
dismissal with prejudice: 1) res judicata; 2) prescription; 3)
extinguishment of obligation; and 4) statute of frauds (Section 13,
Rule 15).

6. A case was dismissed on the ground of lack of jurisdiction over

the subject matter. Then an action was subsequently instituted
by the same plaintiffs in the first case involving the same subject
matter. Such action was also dismissed but on the ground that
18
 it was filed in a wrong court. The plaintiff again instituted an
action in the now right court. While the action was pending but
before an answer was filed, the plaintiff decided to withdraw the
case. Is the plaintiff barred by the two-dismissal rule? – NO. Rule
17, Sec. 1 provides that if the case is once dismissed by the plaintiff
before an answer is filed, he could re-file it because the dismissal is
without prejudice. A second dismissal of that nature will bar the third
filing. For the two-dismissal rule to apply, the dismissal should have
been prompted by the plaintiff in both instances and before an
answer. In this case, the first case was a dismissal on ground of lack
of jurisdiction over subject matter while the second case was
dismissed on ground it was filed in the wrong court. Therefore, the
plaintiff can be filed for a third time.

7. What are the grounds by which the court may dismiss the case
due to the fault of the plaintiff? The court may dismiss the action
on the following grounds: 1) Failure of the plaintiff to present
evidence in chief; 2) Failure to prosecute his action for an
unreasonable period of time; 3) Failure of the plaintiff to comply with
the Rules of Court; 4) Failure of the plaintiff to comply with the order
of the court. NOTE: the dismissal on these grounds is with prejudice
unless otherwise ordered by the Court.

8. What is the effect of dismissal of the complaint with defendant’s

counterclaim? The dismissal of the complaint does not automatically
carry with it the dismissal of the counterclaim. Under the Rules, If
counterclaim has been pleaded prior to service upon the defendant of
plaintiff’s motion to dismiss, the dismissal shall be limited to the
complaint only. The defendant may prosecute his claim in the same
action or in a separate action. The dismissal shall be without prejudice
to the right of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from notice of the
motion he manifests his preference to have his counterclaim resolved
in the same action (Sec. 2, Rule 17).

9. Is there provisional dismissal in civil cases?

There is none. The concept of a provisional dismissal in our

jurisdiction contemplates the temporary dismissal of a criminal action
that may be revived within the period set by the Rules of Court upon
compliance with certain requisites. There is nothing in the Rules of
Civil Procedure, as amended, which provides for a provisional
dismissal of a civil case (PNB vs. Daradar, G.R. No. 180203, June
28, 2021, J. Hernando).

X. PRE-TRIAL AND MODES OF DISCOVERY

1. Who are required to appear during pre-trial, court annexed

mediation and judicial dispute resolution? The parties and their
counsel (Section 4, Rule 18).

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2. What is the effect of failure of appearance from either of the
party or lawyer? When duly notified, the failure of the plaintiff and
counsel to appear without valid cause when so required, pursuant to
the next preceding Section, shall cause the dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the
court. A similar failure on the part of the defendant and counsel shall
be caused to allow the plaintiff to present his or her evidence ex-
parte within ten (10) calendar days from termination of pre-trial, and
the court to render judgment on the basis of the evidence offered
(Section 5, Rule 18). NOTE: the same effect if case of failure to file
pre-trial brief (Section 6, Rule 18).

3. Deposition. It is the taking of testimony of any person, whether he

be a party or not, but at the instance of a party to the action. This
testimony is taken out of court.

4. Is it necessary to ask permission from the court for the taking of

deposition if there is a pending action? Yes. Under the Rules, the
applicant must file an ex-parte motion (Section 1, Rule 23).

5. How is deposition taken? 1) Deposition upon oral examination; 2)

Deposition upon written interrogatories.

6. Deposition upon written interrogatories. Rule 23, SECTION 25.

Deposition Upon Written Interrogatories; Service of Notice and
of Interrogatories. — A party desiring to take the deposition of any
person upon written interrogatories shall serve them upon every other
party with a notice stating the name and address of the person who is
to answer them and the name or descriptive title and address of the
officer before whom the deposition is to be taken. Within ten (10)
days thereafter, a party so served may serve cross-interrogatories upon
the party proposing to take the deposition. Within five (5) days
thereafter the latter may serve re-direct interrogatories upon a party
who has served cross-interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve re-cross-
interrogatories upon the party proposing to take the deposition.

7. Supposing the party sought to be examined refused to appear?

The attendance of witnesses may be compelled by the use of subpoena
under Rule 21.

8. Where do you apply the sub-poena? SECTION 5. Subpoena for

depositions. — Proof of service of a notice to take a deposition, as
provided in Sections 15 and 25 of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the persons named in
said notice by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person without an order of the court.
In short, the court of the place where the deposition shall be taken.

20
9. What may be asked during the taking of deposition? Rule 23,
SECTION 2. Scope of examination. — Unless otherwise ordered
by the court as provided by Section 16 or 18 of this Rule, the deponent
may be examined regarding any matter, not privileged, which is
relevant to the subject of the pending action, whether relating to the
claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts.

10. Deposition before action or pending appeal. Rule 24. SECTION

1. Depositions Before Action; Petition. — A person who desires to
perpetuate his own testimony or that of another person regarding any
matter that may be cognizable in any court of the Philippines, may
file a verified petition in the court of the place of the residence
of any expected adverse party.

11. Written interrogatories. RULE 25. SECTION 1. Interrogatories to

Parties; Service Thereof. — Under the same conditions specified in
Section 1 of Rule 23, any party desiring to elicit material and relevant
facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if the
party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf.
N.B. Written interrogatories are directed to adverse party, not to
strangers.

12. Interrogatories under Rule 23 & Rule 25: Rule 23 – 1) There is

deposition officer; 2) Questions are prepared beforehand; 3) Party or
not may be taken. Rule 25 – 1) No deposition officer; 2) Directed to
parties; 3) Not applicable to stranger.

13. Effect of failure to serve written interrogatories. Unless thereafter

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 (Section 6, Rule 25).

14. Admission by the adverse Party. RULE 26, SECTION 1. Request

for Admission. — 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 described in and exhibited with the request or of the truth
of any material and relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with the request unless
copies have already been furnished.

15. Failure to act on the request for admission, the effect is implied
admission. RULE 26, SECTION 2. Implied Admission. — Each
of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, which shall
21
 not be less than fifteen (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 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.

16. Applicability of the admission. RULE 26, SECTION 3. Effect

of Admission. – 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.

17. Effect of failure to file and serve request. RULE 26, SECTION
5. Effect of Failure to File and Serve Request for Admission. —
Unless otherwise 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 permitted to present evidence on such facts.

18. Po vs. CA, 164 SCRA 668. A party should not be compelled to admit
matters of fact already admitted by his pleading and concerning which
there is no issue, nor should he be required to make a second denial
of those already denied in his answer to the complaint. A request for
admission is not intended to merely reproduce or reiterate the
allegations of the requesting party's pleading but should set forth
relevant evidentiary matters of fact, or documents described in and
exhibited with the request, whose purpose is to establish said party's
cause of action or defense. Unless it serves that purpose, it is, as
correctly observed by the Court of Appeals, 'pointless, useless' and 'a
mere redundancy.'

19. Production or Inspection of Documents or Things. RULE 27,

SECTION 1. Motion for Production or Inspection; Order. —
Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter
involved in the action and which are in his possession, custody or
control; or (b) order any party to permit entry upon designated land
or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. The order shall
specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and
conditions as are just.

22
20. When may the physical and mental examination be ordered. In
an action in which the mental or physical condition of a party is in
controversy, the court in which the action is pending may in its
discretion order him to submit to a physical or mental examination by
a physician (Section 1, Rule 28).

21. The order for examination may be made only on motion for
good cause shown and upon notice to the party to be examined
and to all other parties, and shall specify the time, place,
manner, conditions and scope of the examination and the
person or persons by whom it is to be made (Section 2, Rule 28).

22. If requested by the party examined, the party causing the examination
to be made shall deliver to him a copy of a detailed written report of
the examining physician setting out his findings and conclusions.
After such request and delivery, the party causing the examination to
be made shall be entitled upon request to receive from the party
examined a like report of any examination, previously or thereafter
made, of the same mental or physical condition. If the party examined
refuses to deliver such report, the court on motion and notice may
make an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may exclude
his testimony if offered at the trial (Section 3, Rule 28).

23. By requesting and obtaining a report of the examination so ordered

or by taking the deposition of the examiner, the party examined 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 examined or may thereafter examine him in respect of the same
mental or physical examination (Section 4, Rule 28).

24. Refusal to comply with modes of discovery. Refusal to answer –

the requesting party may apply for subpoena to Court where the
deposition is being taken.

25. Other consequences. If the a party refuses to answer as ordered or

to produce a document or entry upon the land under Rule 27, or
refuses despite order to submit himself to physical and mental
examination, the Court, upon motion, issue: 1) An order that the
matters regarding which the questions were asked, or the character or
description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts
shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order; 2) An
order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or
from introducing evidence of physical or mental condition; 3) An
order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
23
 against the disobedient party; 4) In lieu of any of the foregoing orders
or in addition thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders except an order to
submit to a physical or mental examination (Section 3, Rule 29).

26. May Rule 23 be made to apply in criminal cases?

Yes. Depositions, however, are recognized under Rule 23 of the Rules

on Civil Procedure. Although the rule on deposition by written
interrogatories is inscribed under the said Rule, the Court holds that
it may be applied suppletorily in criminal proceedings so long as there
is compelling reason. A strict application of the procedural rules will
defeat the very purpose for the grant of reprieve by the Indonesian
authorities to Mary Jane. Mary Jane's testimony, being the victim, is
vital in the prosecution of the pending criminal cases that were filed
against the accused. Verily, in light of the unusual circumstances
surrounding the instant case, the Court sees no reason not to apply
suppletorily the provisions of Rule 23 of the Rules on Civil Procedure
in the interest of substantial justice and fairness. Hence, the taking of
testimony of Mary Jane through a deposition by written
interrogatories is in order (People vs. Sergio
G.R. No. 240053, October 9, 2019).

XI. DEMURRER TO EVIDENCE

1. When is the proper time to file Demurrer to Evidence? After the

plaintiff has completed the presentation of his evidence, the defendant
may move for dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief.

2. What is the effect if the motion is denied? How about if the

motion is granted but reversed on appeal? If his motion is denied,
he shall have the right to present evidence. If the motion is granted
but on appeal the order of dismissal is reversed, he shall be deemed
to have waived the right to present evidence.

Motion to Dismiss Demurrer

1. MTD is made before 1. It is made after the
answer. plaintiff rests its case.

2. There are several grounds. 2. There is only one ground.

3. If denied, defendant may file 3. If denied, the defendant

answer. will present evidence.

24
 4. Leave of court is not 4. It may be with or without
required. leave of court.

5. If granted, the order is 5. If granted, the order is not

appealable. appealable.

6. If denied, the defendant 6. If denied, the accused

may present evidence. may present evidence if he
filed it with leave of court.

7. It cannot be granted motu 7. The Court may dismiss

propio. the case motu propio (Sec.
23, Rule 119).

XII. JUDGMENT ON THE PLEADING & SUMMARY

JUDGMENT

1. When is it available? RULE 34, SECTION 1. Judgment on the

Pleadings. — Where an answer 1) fails to tender an issue, or
otherwise 2) admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment on
such pleading. However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the material facts
alleged in the complaint shall always be proved.

2. When do we say that an answer fails to tender an issue? Answer:

If it does not comply with the requirements of specific denial under
Sections 8 and 10 of Rule 8.

3. Section 8, Rule 8. How to Contest Such Documents. — When an

action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath, specifically
denies them, and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does
not appear to be a party to the instrument or when compliance with
an order for an inspection of the original instrument is refused.

4. Section 10, Rule 8. Specific Denial. — A defendant must specify

each material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant desires
to deny only a part of an averment, he shall specify so much of it as is
true and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the complaint, he
shall so state, and this shall have the effect of a denial.

25
5. What are the different manners of denying an allegation? 1) By
specifically denying the allegation and setting forth the substance
upon which one relies his denial. 2) By specifically denying some part
of the allegation and denying the rest. 3) By specifically denying the
allegation for lack of knowledge sufficient to form a belief as to the
truth or falsity of the allegation.

6. What is the effect of defective denial? RULE 8, SECTION 11.

Allegations Not Specifically Denied Deemed Admitted. Material
averment in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to recover usurious
interest are deemed admitted if not denied under oath.

7. Who may file a motion for summary judgment? RULE 25,

SECTION 1. Summary Judgment for Claimant. — A party
seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions
or admissions for a summary judgment in his favor upon all or any
part thereof. SECTION 2. Summary Judgment for Defending
Party. — A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits depositions or admissions for a summary
judgment in his favor as to all or any part thereof. PLEASE TAKE
NOTE: The Court may motu proprio declare that it would
render judgment on the pleadings or summary judgment
(Section 10, Rule 18).

8. When is this remedy available? When there is no genuine issue.

Although the defendant denies the material allegation in the claim, but
the denial is sham.

Judgment on the Pleadings Summary Judgment

There is absence of factual Answers tenders an issue, but
issue because the answer the issue is not genuine.
tenders no issue.
Only the claiming party can The motion may be filed by
file the motion. the claiming party or
defending party.

It is based on pleadings It is based on pleadings,

alone. affidavits, depositions and
admissions.

Only three (3) day notice is Ten (10) day notice is

required. required.

26
 9. May the ruling of the Court on motion for judgment on the
pleading or summary judgment be subject of petition for
certiorari?

No. Any action of the court on a motion for judgment on the

pleadings or summary judgment shall not be subject of an appeal or
petition for certiorari, prohibition or mandamus (Section 2, Rule 34;
Section 3, Rule 35).

NOTE:

The judgment on the pleadings or summary judgment is subject to

appeal because it is a final order.

XIII. POST JUDGMENT REMEDIES

1. What is “Neypes Rule”? If the motion for reconsideration or new

trial is denied, the movant has a “fresh period” of fifteen (15) days
from receipt of the notice of the order denying or dismissing the
motion for reconsideration within which to file the notice of appeal.
The “fresh period” rule applies not only in Rule 41 (RTC-CA), but
also in Rule 40 (MTC-RTC), Rule 42 (Petrev, RTC-CA), Rule 43
(Petrev, QJA-CA), and Rule 45 (RTC, CA-SC). This was adopted
to standardize the appeal period. (Neypes vs. Court of Appeals, 469
SCRA 633).

2. What may be appealed? Judgment and Final Order.

3. Are all final orders appealable? NO. For instance, dismissal of an

action without prejudice is a final order but is not appealable.

4. What judgments or orders cannot be appealed? (a) An order

denying a motion for new trial or reconsideration; (b) An order
denying a petition for relief or any similar motion seeking relief from
judgment; (c) An interlocutory order; (d) An order disallowing or
dismissing an appeal; (e) An 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; (f) An
order of execution; (g) A 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; and (h) An order
dismissing an action without prejudice (Section 1, Rule 41). NOTE:
if the above order cannot be appealed, the remedy is CERTIORARI
UNDER RULE 65.

5. Petition for Relief from Judgment. A) What is the subject matter

of the Petition? – Judgment, Final order; Other proceedings; Order
denying the appeal (Sec.2, Rule 38). B) What are the grounds? -
Fraud, Accident, Mistake, Excusable Negligence (FAME). C) Where

27
 to file? - Court which rendered the judgment, final order, order
denying appeal or court which conducted the proceedings.

6. What is the period to file Petition for Relief from Judgment? A

petition provided for in either of the preceding sections of this Rule
must be verified, filed within sixty (60) days after the petitioner learns
of the judgment, final order, or other proceeding to be set aside, and
not more than six (6) months after such judgment or final order was
entered, or such proceeding was taken (Section 3, Rule 38).

7. Annulment of Judgment. What is the coverage? This Rule shall

govern the annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts for
which the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no fault of
the petitioner (Sec. 1, Rule 47).

8. What are the grounds? Extrinsic Fraud and Lack of Jurisdiction.

Fraud is regarded as extrinsic where it prevents a party from having a
trial or from presenting his entire case to the court or where it operates
upon matters pertaining not to the judgment itself but the manner in
which it is procured. The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme of the prevailing party
litigant prevented a party from having his day in court (Alaban vs.
CA, 470 SCRA 697).

9. What is the period to file? If based on extrinsic fraud, the action

must be filed within four (4) years from its discovery; and if based on
lack of jurisdiction, before it is barred by laches or estoppel.

10. Does RTC have jurisdiction to entertain petition for annulment

of judgment of MTC? YES. An action to annul a judgment or final
order of a Municipal Trial Court shall be filed in the Regional Trial
Court having jurisdiction over the former. It shall be treated as an
ordinary civil action and Sections 2, 3, 4, 7, 8 and 9 of this Rule shall
be applicable thereto (Section. 4, Rule 47).

11. Where and how do you appeal the decision of the CA,
Sandiganbayan, or CTA, en banc?

To the Supreme Court. The mode of appeal is Rule 45.

12. How do we question the Resolution of the OMB finding

probable cause against the respondents? And where do we file
the same?

By filing a Petition for Certiorari before the Supreme Court. The

proper mode to assail the OMB's finding of probable cause in criminal
cases is by filing a petition for certiorari before this Court - which
petitioners failed to do. Indeed, in Carpio-Morales, the Court struck
28
 down as unconstitutional the second paragraph of Section 14 of RA
6770. However, it is settled that the doctrine laid down in Carpio-
Morales has no application in criminal cases before the OMB (Patdu,
et.al., vs. Carpio-Morales, G.R. No. 230171, September 27, 2021).

XIV. PROVISIONAL REMEDIES

1. Attachment. It is a provisional remedy issued by the court where the

action is pending levying the property or properties of the defendant
to serve as security for whatever judgment the said court might render
in favor of the plaintiff. It is provisional because it constitutes
temporary measure availed of during the pendency of action and they
are ancillary because it is dependent upon the main action.

2. Will the writ of preliminary attachment be dissolved if the

parties had already entered into compromise agreement? NO.
The parties to the compromise agreement should not be deprived of
the protection provided by an attachment lien. If the rule were
otherwise, it is easier for the debtor whose property was attached to
have the lien released by entering into a compromise agreement
without the intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).

3. What is the nature of attachment? Attachment is in the nature of a

proceeding quasi in rem (Banco-Espanol vs. Palanca, 37 Phil. 921, 928)
although sometimes referred to as action in rem (Valdevieso vs.
Damalerio, 421 SCRA 664, 671). This classification becomes relevant
only when the defendant does not appear in the action as when the
defendant is a non-resident who, at the same time, is outside of the
Philippines.

4. What is the purpose of preliminary attachment? Preliminary

attachment is designed to seize the property of the debtor before final
judgment and put the same in custodia legis even while the action is
pending for the satisfaction of a later judgment and to acquire
jurisdiction over the property in those instances where personal or
substituted services of summons on the defendant cannot be effected.
(Philippine Commercial International Bank vs. Alejandro, 533 SCRA
738).

5. Is it necessary for the court to have acquired jurisdiction over

the person of the defendant when the writ is implemented? Yes,
because under the rules: “No levy on attachment pursuant to the writ issued
under Section 2 hereof shall be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the complaint, the
application for attachment, the applicant's affidavit and bond, and the order and
writ of attachment, on the defendant within the Philippines.” (Sec. 5, Rule 57)
Thus, there must be prior or contemporaneous service of summons.

6. Are there exceptions to prior or contemporaneous service of

summons? Yes, under the rules: “The requirement of prior or
29
 contemporaneous service of summons shall not apply where the
summons could not be served 1. personally or by substituted service
despite diligent efforts, or 2. the defendant is a resident of the
Philippines temporarily absent therefrom, or 3. the defendant is a
non-resident of the Philippines, or 4. the action is one in rem or quasi
in rem”(Sec. 5, Rule 57).

7. May a property under custodia legis be attached? Yes. Under the

Rules: If the property sought to be attached in custodia legis, a copy of
the writ of attachment shall be filed with the proper court or quasi-
judicial agency, and notice of the attachment served upon the
custodian of such property (Sec. 7, Rule 57).

8. Supposing sheriff attached the property of the third party, what

are the remedies of the latter if any? He may avail the remedy of
terceria (Sec. 14, Rule 57). The third party-claimant may also invoke
the court’s authority in the same case and move for a summary hearing
on his claim. If his claim is meritorious, the court shall lift the
attachment (Ching vs. CA, 423 SCRA 356). The third party may file a
separate civil action to nullify the levy (Ching, id.).

9. What are grounds which may be invoked in the motion to

discharge attachment? 1) Attachment was improperly or irregularly
issued; 2) Bond is insufficient; 3) Attachment is excessive with respect
to the excess; 4) Property is exempt from execution.

10. May a party whose property was attached recover damages from
the attaching party though the former lost the case? Yes. This is
implied from Section 20, Rule 57 which provides that: “An application
for damages on account of improper, irregular or excessive
attachment must be filed before the trial or before appeal is perfected
or before the judgment becomes executory, with due notice to the
attaching party and his surety or sureties.” (Carlos vs. Sandoval, 471
ACRA 266, 289-290).

11. Injunction. Preliminary injunction is an order granted at any stage of

an action, prior to the judgment or final order, requiring a party, court,
agency or person to perform or refrain from performing an act or acts.
(Sec. 1, Rule 58). Preliminary mandatory injunction – order to require
the doing of an act. Preliminary prohibitory injunction – order to
refrain from doing an act.

12. What are the grounds for the issuance of a preliminary

injunction? Section 3, Rule 58 can be capsulized as follows: (1) there
exists a clear and unmistakable right to be protected; (2) this right is
directly threatened by an act sought to be enjoined; (3) the invasion of
the right is material and substantial; and (4) there is an urgent and
paramount necessity for the writ to prevent serious and irreparable
damage (Spouses Dulnuan vs. MBTC, July 8, 2015).

30
13. Is the rule on contemporaneous service of summons applicable
to application for preliminary injunction? YES. When an
application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be raffled only after
notice to and in the presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons, together
with a copy of the complaint or initiatory pleading and the applicant's
affidavit and bond, upon the adverse party in the Philippines (Sec. 4
(c), Rule 58).

14. Are there exceptions? YES. Where the summons could not be
served personally or by substituted service despite diligent efforts, or
the adverse party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply (Sec. 4 (c),
Rule 58).

15. What is temporary restraining order? It is an order issued to

preserve the status quo until the hearing of the application for a writ
of preliminary injunction because preliminary injunction cannot be
issued ex-parte (Bacolod Water District vs. Labayen, 446 SCRA
110). By its nature, it could be considered as a provisional remedy
within a provisional remedy because it is issued to preserved the status
quo for a limited period until the court decides to issue a writ of
preliminary injunction.

16. May TRO be issued ex-parte? YES. If it shall appear from facts
shown by affidavits or by the verified application that great or
irreparable injury would result to the applicant before preliminary
injunction can be heard, the court to which the application for
preliminary injunction was made, may issue ex parte a temporary
restraining order to be effective only for a period of twenty (20) days
from service on the party or person sought to be enjoined x x x.
(Section 5, Rule 58).

17. May TRO be issued by the EJ? If the matter is of extreme urgency
and the applicant will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge of a
single-sala court may issue ex-parte a temporary restraining order
effective for only seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next preceding section
as to service of summons and the documents to be served therewith
(Sec. 5, Rule 58).

18. What should the judge where the case is raffled do after the EJ
issued the 72-hour TRO? Within the aforesaid seventy-two (72)
hours, the judge before whom the case is raffled shall conduct a
summary hearing to determine whether the temporary restraining
order shall be extended until the application for preliminary injunction
31
 can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the
original seventy-two hours provided herein (Sec. 5, Rule 57).

19. Is 20-day TRO extendible? NO. The Rules provide: “In no case
shall the total period of effectivity of the temporary restraining order
exceed twenty (20) days, including the original seventy-two hours
provided herein.” (Sect. 5, Rule 58).

XV. SPECIAL CIVIL ACTION

1. What is interpleader? It is a special civil action filed by a person

against whom two conflicting claims are made upon the same subject
matter and over which he claims no interest, or if he claims interest,
the same is not disputed by the parties. This action is brought against
the conflicting claimants to compel them to interplead and litigate
their claims among themselves.

2. When is interpleader proper? Whenever conflicting claims upon the

same subject matter are or may be made against a person who claims
no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, he may bring an
action against the conflicting claimants to compel them to interplead
and litigate their several claims among themselves (Sec. 1, Rule 62).

3. What is the jurisdiction of interpleader? It depends on the

subject matter of the conflicting claims: 1) If the subject matter of
the action is personal property – determine the value of the property.
2) If the conflicting claims involve right to receive particular sum –
determine the amount of the sum claimed. 3) If the subject matter is
real property – determine the assessed value of the property. 4) If the
subject matter is incapable of pecuniary estimation – RTC.

4. Declaratory Relief. Declaratory relief is defined as an action by any

person interested in a deed, will, contract or other written instrument,
executive order or resolution, to determine any question of
construction or validity arising from the instrument, executive order
or regulation, or statute; and for a declaration of his rights and duties
thereunder. The only issue that may be raised in such a petition
is the question of construction or validity of provisions in an
instrument or statute (Province of Camarines Sur vs. CA, 600
SCRA 569).

5. PLEASE TAKE NOTE: Declaratory relief must be filed before any

breach or violation. If the law or contract has been violated prior to
the filing of declaratory relief, the latter recourse should be dismissed
(Malana vs. Tappa, 600 SCRA 189). BUT: If the breached occurred
during the pendency of declaratory relief, the latter will be converted
to ordinary civil action (Sec. 6, Rule 63).

32
6. What are the subject matter in a petition for declaratory relief?
Deed; Will; Contract or other written instrument; Statute; Executive
order or regulation; Ordinance; Any other governmental regulation.
NOTE: These are exclusive.

7. Which court has jurisdiction? The RTC has jurisdiction as

declaratory relief raises issue which is incapable of pecuniary
estimation (Sec. 19[1], BP 129; Sec.1, Rule 63). SC has no original
jurisdiction over declaratory relief (Clark Investors and Locators Assn. vs.
Secretary, July 6, 2015). If the action is for quieting of title to real
property, the jurisdiction depends upon the assessed value of the real
property (Heirs of Valeriano S. Concha vs. SPS Lumucso, 540 SCRA 1,
16). Action for reformation of contract should be treated as action in
capable of pecuniary estimation, hence RTC. An action for
consolidation of ownership is an action incapable of pecuniary
estimation (Cruz vs. Leis, 327 SCRA 570).

8. Certiorari. It is also called “prerogative writ” because it is not

demandable as a matter of right. Its purpose is the correction of errors
of jurisdiction which includes commission of grave abuse of
discretion amounting to lack or excess of jurisdiction. It is an original
and independent action and not a mode of appeal. Certiorari cannot
be substitute for appeal or lost appeal.

9. Rule 45 vs. Rule 65. 1) Certiorari under Rule 45 is a mode of appeal

while certiorari under Rule 65 is a special civil action. 2) Certiorari
under Rule 45 is just a continuation of the appellate process of the
original case, but under Rule 65, it is an original action. 3) Certiorari
under Rule 45 seeks to review the judgment while certiorari under
Rule 65 seeks to annul the proceedings or judgment. 4) Certiorari
under Rule 45 raises questions of law while under Rule 65, it raises
question of jurisdiction. 5) Certiorari under Rule 45 is to be filed
within 15 days from receipt of judgment or final order while the
period to file certiorari under Rule 65 is either 30 or 60 day. 5)
Certiorari under Rule 45 does not require filing of MR, while in
certiorari under Rule 65, the filing of MR is required. 6) The parties in
certiorari under Rule 45 are the same parties to the action while the
parties in Rule 65 are the tribunal, board or officer exercising quasi-
judicial function. 7) Certiorari under Rule 45 may only be filed before
SC, while certiorari under Rule 65 may be filed with the RTC.

10. Essential requisites for a petition for 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
amounting to lack or excess of jurisdiction. 3. There is neither appeal
nor plain, speedy or adequate remedy in the ordinary course of law for
the purpose annulling or modifying the proceeding.

11. Expanded scope of Certiorari. “Petition for certiorari and

prohibition are appropriate remedies to raise constitutional issues and
33
 to review and/or prohibit or nullify the acts of legislative and
executive officials” (Araullo vs. Aquino, III, July 1, 2014). The basis
of this pronouncement is the second paragraph of Section 1, Article
VIII of the Constitution. NOTE: Certiorari may be used to assail the
validity or constitutionality of the statute.

12. Does the filing of petition stay the proceedings? NO. The petition
shall not interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been issued
against the public respondent from further proceeding in the case
(Sec. 7, Rule 65).

13. What is the period to file the petition? The petition may be filed
not later than sixty (60) days from notice of the judgment, order or
resolution sought to be assailed in the Supreme Court or, if it relates
to the acts or omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may also
be filed in the Court of Appeals whether or not the same is in aid of
its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these Rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
(Sec. 4, Rule 65).

14. May the period be extended? Yes, when: Most persuasive and
weighty reasons. To relieve a litigant from injustice. Good faith of the
defaulting party. Compelling circumstances. Merits of the case. Cause
not entirely attributable to the defaulting party. No showing that it is
frivolous. In the name of substantial justice and fair play. Importance
of issues involved (Labao vs. Flores, 634 SCRA 723).

15. Prohibition. It is an extra-ordinary writ commanding the tribunal,

corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, to desist from further
proceedings when such are conducted without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, there being no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law (Sec. 2,
Rule 65).

16. Requisites. (a) it must be directed against a tribunal, corporation,

board or person exercising functions, judicial or ministerial; (b) the
tribunal, corporation, board or person has acted without or in excess
of its jurisdiction, or with grave abuse of discretion; and (c) there is
no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law (Belmonte vs. Deputy Ombudsman,
January 13, 2016).

17. Mandamus. When any tribunal, corporation, board, officer or person

unlawfully neglects the performance of an act which the law
34
 specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right
or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition for mandamus to
command the respondent to do the act required to be done to protect
the rights of the petitioner (Sec. 3, Rule 65).

18. Subjects of Mandamus. A. Neglect to perform an act which the

specifically enjoins as a duty. B. Unlawful exclusion of another from
the use and enjoyment of a right or office to which such other is
entitled.

19. Mandamus will lie to compel the doing of a ministerial act. The
act is ministerial if the act should be performed under a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to the exercise of judgment upon the
propriety or impropriety of the act done (Cudia vs. Superintendent
of PMA, February 24, 2015).

20. Quo warrato. It is a proceeding generally defined as an action against

a person who usurp, intrudes into, or unlawfully holds or exercise a
public office (Tecson vs. COMELEC, 424 SCRA 277, 326) or even
a public franchise (Sec. 1, Rule 66).

21. Quo warranto that may be brought by the government: (a)

Against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office, position or franchise; (b) Against a public
officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or (c) Against an
association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act (Sec.
1, Rule 66).

22. May it be filed by an individual? A person claiming to be entitled

to a public office or position usurped or unlawfully held or exercised
by another may bring an action therefor in his own name (Sec. 5,
Rule 66).

23. What is the jurisdiction and venue of petition? An action under

the preceding six sections can be brought only in the Supreme Court,
the Court of Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the respondent or any of
the respondents resides, but when the Solicitor General commences
the action, it may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme Court (Sec. 7,
Rule 66).

24. What is the period for the filing of petition? Nothing contained in
this Rule shall be construed to authorize an action against a public
officer or employee for his ouster from office unless the same be
35
 commenced within one (1) year after the cause of such ouster, or
the right of the petitioner to hold such office or position, arose;
nor to authorize an action for damages in accordance with the
provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question (Sec. 11,
Rule 66).

25. Expropriation. Can the government divert the use of property

taken different from the purpose for which the
petition was filed? No. A condemnor should commit the use of the
property pursuant to the purpose stated in the petition for
expropriation, failing which it should file another petition for new
purpose. If not, then it behooves the condemnor to return the said
property to its owner, if the latter so desires (Vda. De Ounao vs.
Republic, 642 SCRA 385, 409).

26. May the defendant be declared in default in presenting evidence

on just compensation? NO. At the trial of the issue of just
compensation, whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share in the
distribution of the award. (Sec. 3, Rule 67).

27. Which court has jurisdiction? It is the RTC has jurisdiction because
petition for expropriation is an action incapable of pecuniary
estimation regardless of the value of the subject property (Barangay
San Roque vs. Hiers of Pastor, 334 SCRA 127, 134).

28. Foreclosure of Real Estate Mortgage. In an action for the

foreclosure of a mortgage or other encumbrance upon real estate, the
complaint shall set forth the date and due execution of the mortgage;
its assignments, if any; the names and residences of the mortgagor and
the mortgagee; a description of the mortgaged property; a statement
of the date of the note or other documentary evidence of the
obligation secured by the mortgage, the amount claimed to be unpaid
thereon; and the names and residences of all persons having or
claiming an interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants in the
action (Section 1, Rule 68).

29. Please take note: If a indebtedness subject to mortgage, the creditor

has the following alternative remedies: 1) To file an action for
collection of sum of money. 2) To foreclose the mortgage. The
remedies are mutually exclusive; such that the availment of one,
excludes the other. Therefore, if one files a collection suit and then
thereafter files a petition for foreclosure of mortgage, the same
constitute a splitting of cause of action (Bank of America, NT & SA
vs. Amreican Realty Corp, 321 SCRA 659, 667-669; Marilag vs.
martinez, July 22, 2015).

36
30. Jurisdiction of judicial foreclosure. Judicial foreclosure is a real
action. Thus, jurisdiction depends on the assessed value of real
property. Thus, if the value of real property is 400K and below, MTC;
above 400K, RTC (RA 11576).

31. What should the judgment in judicial foreclosure contain?

Ascertainment of the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other charges as approved
by the court, and costs; The sum so found due; Order the amount
found due to be paid to the court or to the judgment obligee within
a period of not less than ninety (90) days nor more than one hundred
twenty (120) days from the entry of judgment, and admonition that in
default of such payment the property shall be sold at public auction
to satisfy the judgment (Section 2, Rule 68).

32. What is equity of redemption? It is the period within which the

mortgagor may start exercising his equity of redemption, which is the
right to extinguish the mortgage and retain ownership of the property
by paying the debt. The payment may be made even after the
foreclosure sale provided it is made before the sale is confirmed by
court (GSIS vs. CFI, 175 SCRA 19, 25).

33. What is the effect if the mortgagor failed to pay the sum due
within the period given? The court, upon motion, shall order the
property to be sold in the manner and under the provisions of Rule
39 and other regulations governing sales of real estate under execution
(Sec. 3, Rule 57). There should be motion, but the motion is ex-parte
(Govt. of PI vs. De Las Lajigas, 55 Phil 668, 672).

34. What should the mortgagee do, after the sale of the mortgage
property is made? He should file a motion for confirmation of sale
(Sec. 3. Rule 68). Here the motion requires notice and hearing
(Tiglao vs. Botones, 90 Phil. 275, 278). The confirmation of sale
shall operate to divest the rights in the property of all the parties to
action and vest the rights in the purchaser, subject to the rights of
redemption under the law (Sec. 3, Rule 68). Order of confirmation is
appealable.

35. What is the effect of finality of the confirmation of the sale?

Upon the finality of the order of confirmation or upon the expiration
of the period of redemption when allowed by law, the purchaser at
the auction sale or last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is actually holding the
same adversely to the judgment obligor. The said purchaser or last
redemptioner may secure a writ of possession, upon motion, from the
court which ordered the foreclosure (Sec. 3, Rule 68). The motion is
ex-parte (Carlos vs. CA, 537 SCRA 247, 253).

36. Is the mortgagee entitled to deficiency? YES. If upon the sale of

any real property, there be a balance due to the plaintiff after applying
the proceeds of the sale, the court, upon motion, shall render
37
 judgment against the defendant for any such balance for which he may
be personally liable to the plaintiff, upon which execution may issue
immediately if the balance is all due at the time of the rendition of the
judgment; otherwise, 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).

37. Is there still a need to file a separate case to recover the

deficiency? No need. A motion for the recovery of deficiency can
be filed in the same court where judicial foreclosure was filed (Sec. 6,
Rule 68).

38. Forcible entry and unlawful Detainer. What are the two causes
of actions under Rule 70? 1) Forcible entry – an action to recover
possession of a property from the defendant whose occupation
thereof is illegal from the beginning since he acquired possession by
force, intimidation, threat, strategy, or stealth. 2) Unlawful detainer
– an action for recovery of possession from the defendant whose
possession of the property was lawful from the beginning but became
illegal when he continued his possession despite the termination of his
right thereunder (Sarmieta vs. Manalite Homeowners
Association, 632 SCRA 538, 546).

39. What should be alleged in forcible entry? Plaintiff had prior physical
possession. And, that defendant deprived plaintiff of his possession by
means of force, intimidation, threat, strategy or stealth (FITSS).

40. PLEASE TAKE NOTE: Prior physical possession is the primary

consideration in a forcible entry case. A party who can prove prior
physical possession can recover such possession even against the
owner himself (Antazo vs. Doblada, 611 SCRA 586).

41. What is the meaning of prior physical possession in forcible

entry cases? While prior physical possession is an indispensable
requirement in forcible entry cases, emphasis should be made
however that possession can be acquired not only by material
occupation, but also by the fact that a thing is subject to the action of
one's will or by the proper acts and legal formalities established for
acquiring such right. Possession can be acquired by juridical acts.
These are acts to which the law gives the force of acts of possession.
Juridical acts were sufficient to establish the plaintiff's prior
possession of the subject property (Mangaser vs. Ugay, December
3, 2014).

As a rule, "possession" in forcible entry cases refers to prior physical

possession or possession de facto, not possession de Jure or that
arising from ownership. Title is not an issue. As an exception, Section
16, Rule 70 of the Rules of Court provides that the issue of ownership
shall be resolved in deciding the issue of possession if the question of
possession is intertwined with the issue of ownership. Thus, based on
38
 the foregoing, the issue of ownership of the property in forcible entry
cases may be provisionally determined - to determine the issue of
possession and only if the question of possession cannot be resolved
without deciding the issue of ownership. In addition, We have likewise
consistently held that "possession can be acquired not only by material
occupation, but also by the fact that a thing is subject to the action of
one's will or by the proper acts and legal formalities established for
acquiring such right (Palajos vs. Abad, G.R. No. 226272,
March 7, 2022, J. Hernando).

42. What should be alleged in the complaint for unlawful detainer?

Possession of the property by the defendant was by contract with or
by tolerance of the plaintiff. 1) Such possession became illegal upon
notice by the plaintiff to the defendant of the termination of the
latter’s possession. 2) Defendant remained in possession of the
property and deprived the plaintiff enjoyment thereof. 3) Within one
(I) year from the last demand on the defendant to vacate the property,
the plaintiff instituted the complaint for ejectment (Romullo vs.
Samahang Magkakapitbahay ng Bayanihan Compound
Homeowners Association, 632 SCRA 411, 419-420).

43. What is the effect if there is failure to alleged facts necessary for
forcible entry and unlawful detainer? The jurisdictional facts must
appear on the face of the complaint. When the complaint fails to aver
facts constitutive of forcible entry or unlawful detainer, as where it
does not state how entry was effected or how and when dispossession
started, the remedy should either be an accion publiciana or accion
reinvindicatoria (Jose vs. Alfuerto, November 26, 2012; Suarez vs.
Emboy, March 12, 2014).

44. PLEASE TAKE NOTE: When the entry is by stealth, the one-year
period to file action should reckoned from the discovery of entry
(Nunez vs. SLTEAS Phoenix Solutions, Inc., 618 SCRA 134,
142). When possession is by tolerance, it becomes illegal upon
demand to vacate by the owner and the possessor by tolerance refuses
to comply with such demand (Piedad vs. Gurieza, June 18, 2014).
The rule on tolerance does not apply in a case where there was forcible
entry at the start (Munoz vs. CA, 214 SCRA 216, 224). Hence, in this
case, unlawful detainer is not the proper remedy (Jose vs. Alfuerto,
November 26, 2012).

45. Unlawful detainer in lease contract cases. Unless otherwise

stipulated, such action by the lessor shall be commenced only after
demand to pay or comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving written notice of such
demand upon the person found on the premises, or by posting such
notice on the premises if no person be found thereon, and the lessee
fails to comply therewith after fifteen (15) days in the case of land or
five (5) days in the case of buildings (Sec. 2, Rule 70).

39
 46. Demand is to “pay unpaid rental or to vacate”. Will this make
out a case of unlawful detainer? No. It should be demand to pay
and vacate. A demand in the alternative to pay the increased rental or
otherwise vacate the land is not a demand that will give rise to an
unlawful detainer case (Penas vs. CA, 233 SCRA 744, 747).

47. Is there default in ejectment cases? NO. Should the defendant

fail to answer the complaint within the period above provided, the
court, motu proprio or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and limited
to what is prayed for therein (Sec. 7, Rule 70).

48. What should the court do in case tenancy relationship is alleged

in the answer? Where tenancy is raised as a defense, the court must
conduct a hearing on the matter to determine the veracity of the
allegations of tenancy (Onquit vs. Binamira-Parcia, 297 SCRA
354).

49. How to stay the execution of judgment? Appeal is perfected and

the defendant files a sufficient supersedeas bond, approved by the
Municipal Trial Court and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to the time of the judgment
appealed from. (Sec. 19, Rule 70). In the absence of a contract, he
shall deposit with the Regional Trial Court the reasonable value of the
use and occupation of the premises for the preceding month or period
at the rate determined by the judgment of the lower court on or before
the tenth day of each succeeding month or period (Sec. 19, Rule 70).

XVI. EXECUTION

1. What is the lifetime of the writ of execution? The writ shall

continue in effect during the period within which the judgment may
be enforced. Hence the writ may be enforced within the five-year
period from entry of judgment because within that period, the writ
may be enforced by motion (Sec. 6, Rule 39).

2. How may final and executory judgment or order be executed? 1)

By Motion, within five (5) years from the date of its entry. 2) By,
Action, after the lapse of such time, and before it is barred by the
statute of limitations.

3. What is revival of judgment? judgment which has become dormant

after the passage of five years without it being executed upon motion
of the prevailing party. It is not intended to re-open any issue affecting
the merits of the case judgment debtor’s case nor the propriety or
correctness of the first judgment. It is a new and an independent
action separate and distinct from the previous action sought to be
revived. The cause of action is the judgment itself (Saligumba vs.
Palanog, 573 SCRA 8, 15-16).

40
4. What are the defenses that may be invoked in an action to
revive? Jurisdictional defenses. Prescription. Payment. Other
defenses arising after the finality of judgment NOTE: It may even be
subject to counterclaims arising out of the transactions not connected
with the former controversy (Basilonia vs. Villaruz, August 10,
2015).

5. PLEASE TAKE NOTE: The revived judgment may also be

enforced by motion within five (5) years from the date of its entry and
thereafter by action before it is barred by the statute of limitations
(Section 6, Rule 39; PNB vs. Bondoc, 14 SCRA 770, 770-772).

6. Which court has jurisdiction over an action for revival of

judgment? Heirs of Miranda, Sr., vs. Miranda, GR 179638, July
8, 2013 – An action for revival of judgment may be filed either in the
same court where the judgment was rendered or in the place where
the plaintiff or defendant resides or in any other place designated by
the statutes. VENUE: Infante vs. Aran Builders, 531 SCRA 123 –
the proper venue depends on the determination of whether the
present action for revival judgment is real or personal action.

7. May the running of the five-year period be interrupted? The

Court in certain instances, allowed execution of the judgment by mere
motion despite the lapse of the five-year time. In many instances, the
delays in the execution of judgment were through causes clearly
attributable to the judgment debtor as when he employs legal
maneuvers to block the enforcement of the judgment. Delays
attributable to the defendant have the effect of suspending the
running of the prescriptive period for the enforcement of the
judgment (Camacho vs. CA, 287 SCRA 611; Republic vs. CA, 260
SCRA 344, 349-350).

8. What is the procedure if the property of third party is levied?

Basic principle: the execution may issue only upon a person who is
a party to the action or proceeding, and not against one who did not
have his day in court (Philippine Coconut Federation, Inc., vs.
Republic, October 16, 2016). Thus, the property not owned by the
judgment debtor or by one not a party to the case should not be levied.

9. What is the procedure if the property of third party is levied?

Under the Rules, a person not a party to the action, claiming a
property levied upon may execute an affidavit of his title or right of
possession over the property. The affidavit shall be served upon the
officer making a levy and a copy thereof must also be served upon the
judgment oblige (Section 16, Rule 39). This remedy of the claiming
party is called TERCERIA.

10. After receipt of the affidavit of claim, what should the sheriff do?
The officer shall not be bound to keep the property, unless such
judgment obligee, on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a sum not less than
41
 the value of the property levied on. The officer shall not be liable for
damages for the taking or keeping of the property, to any third-party
claimant if such bond is filed (Section 16, Rule 39).

11. Suppose damage was incurred by the third party on account of

officer’s taking and keeping of his property, when should the
action against the bond be filed? The action should be filed within
one hundred twenty (120) days from the date of the filing of the bond.
Under Section 16, Rule 39, it is provided that No claim for damages
for the taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.

12. May a final and executory judgment be modified by a

compromise agreement?

Rights, however, may be waived or modified through a compromise

agreement even after a final judgment has been rendered and already
settled the rights of the contracting parties. Compromise agreements
are known important tools in dispute resolution. To be binding, the
compromise must be shown to have been voluntarily, freely and
intelligently executed by the parties, who had full knowledge of the
judgment. As with the law on contracts, the compromise must not be
contrary to law, morals, good customs and public policy (Leones vs.
Hon. Corpuz, G.R. No. 204106, November 17, 2021, J.
Hernando).

13. Linden filed a case for collection of sum of money against Meridien.
The judgment was rendered in favor of Linden where Meridien was
required to pay the former Php3M+. The judgment became final and
executory. Writ of execution was thereafter issued. The Sheriff,
however, returned the writ unserved as the officers of Meridien
cannot be found and/or would not accept the writ of execution.
Consequently, Linden moved for the examination of judgement
debtor. It is moving to require the officers of Meridien to appear in
court to be examined on the latter’s properties and income.

May the officers of Meridien be examined?

Yes. The officers will be examined not on their properties but the
properties of Meridien. Thus, the doctrine separate juridical
personality of Meridien and its officers finds no application in the case
at bar (Linden Suites vs. Meridien Far East Properties
G.R. No. 211969, October 4, 2021, J. Hernando).

XVII. JURISDICTION IN CRIMINAL CASES

1. Requisites for the exercise of criminal jurisdiction. 1) Jurisdiction

over the subject matter. 2) Jurisdiction over the territory. 3)
Jurisdiction over the person of the accused.

42
2. Jurisdiction over the subject matter. It is conferred by law. Thus,
it cannot be subject to waiver, acquiescence, agreement or consent of
the parties (Conjuangco, Jr., vs. Republic, 686 SCRA 472). Conferment of
jurisdiction cannot be presumed. Thus, in order to ascertain whether
a court has jurisdiction or not, the provision of law shall be inquired
(Soller vs. Sandiganbayan, 357 SCRA 677, 683). Jurisdiction over the
subject matter is determined by the allegation in the information. It is
not determined by the evidence presented during trial (Lacson vs. ES,
301 SCRA 298). It is determined by the penalty imposable not the
penalty imposed (People vs. Buissan, 105 SCRA 547). It is determined
by the law at the commencement of the criminal action not the law in
effect at the time of the commission of the offence (People vs. Lagon,
185 SCRA 442; Asistio vs. People, April 20, 2015). Except those case
falling under the jurisdiction of the Sandiganbayan because it is
determined at the time of the commission of the offense.

3. Is jurisdiction by estoppel applicable in criminal cases? YES. It

was only after appellants had filed their brief that appellee, in its brief,
raised the issue of the belated appeal and, inferentially, the lack of
appellate jurisdiction of this Court in this case. However, the principle
of estoppel by laches to bar attacks on jurisdiction has been adopted
and repeatedly applied by this Court, notably in Tijam, et al. vs.
Sibonghanoy, et., al., and in several cases which followed thereafter,
including criminal cases (People vs. Regalario, G.R. No. 101451,
March 23, 1993).

4. How may jurisdiction over the person of the accused acquired?

It may be acquired by the arrest of the accused by virtue of a warrant
of arrest and voluntary appearance.

5. What are considered voluntary appearance? The following are

considered voluntary appearance: A) Asking affirmative relief from
the court. B) Filing motion to quash or any other motion from the
Court, except when the ground is lack of jurisdiction over the person
of the accused (Miranda vs. Tuliao, March 31, 2006). C) Appearance of
counsel during arraignment (Jimenez vs. Nazareno, GR No. L-37933,
April 15, 1988). D) Entry of appearance of counsel for the accused
(Layosa vs. Rodriguez, GR No. L-46080, November 10, 1978). E) Act of
posting bail without qualification (People vs. Go, GR No. 168539, March
25, 2014).

6. A criminal complaint was filed against the accused before the

prosecutor’s office. The investigating prosecutor, after finding
probable cause, filed the information in court. The accused filed a
Motion to Dismiss the complaint for lack of probable cause. The
Court denied the Motion on the ground that the court has not yet
acquired jurisdiction over the person of the accused because he was
not yet arrested. Is the court correct? The Court is not correct?
When the accused filed the Motion to Dismiss, he submitted himself
to the jurisdiction of the court. Thus, the court can validly rule on his
motion. The court should have determined the difference between the
43
 “custody of the law” and “jurisdiction over the person” (David vs.
Agbay, March 18, 2015).

7. Crimes within the jurisdiction of Sandiganbayan. 1) Violations of

Republic Act No. 3019, as amended, other known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one
or more of the accused are officials occupying the following positions
in the government, whether in a permanent, acting, or interim
capacity, at the time of the commission of the offense. 2) Other
offenses of felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in
subsection of this section in relation to their office. 3) Criminal cases
filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986 (Section 4, RA 8249).

8. Who are officials covered by the jurisdiction of Sandiganbayan?

Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of
the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), this includes: (a) Provincial governors, vice-
governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other city department heads; (b)
City mayor, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads; (c)
Officials of the diplomatic service occupying the position of consul
and higher; (d) Philippine army and air force colonels, naval captains,
and all officers of higher rank; (e) Officers of the Philippine National
Police while occupying the position of provincial director and those
holding the rank of senior superintended or higher; (f) City and
provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-
owned or-controlled corporations, state universities or educational
institutions or foundations. (h) Members of Congress and officials
thereof classified as Grade '27' and up under the Compensation and
Position Classification Act of 1989. (j) Members of the judiciary
without prejudice to the provisions of the Constitution; Chairmen and
members of Constitutional Commission, without prejudice to the
provisions of the Constitution; and (k) All other national and local
officials classified as Grade '27' and higher under the Compensation
and Position Classification Act of 1989.

9. REMEMBER: the jurisdiction of the Sandiganbayan will be

determined by what crime is committed and who committed the
crime.

10. PLEASE TAKE NOTE: In cases where none of the accused are
occupying positions corresponding to Salary Grade '27' or higher, as
prescribed in the said Republic Act No. 6758, or military and PNP
officer mentioned above, exclusive original jurisdiction thereof shall
44
 be vested in the proper regional court, metropolitan trial court,
municipal trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.

11. NOTE FURTHER: Provided, That the Regional Trial Court shall
have exclusive original jurisdiction where the information: (a) does
not allege any damage to the government or any bribery; or (b) alleges
damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding One million
pesos P1,000,000.00. (RA 10660, amending PD 1606 and RA 8249).

12. APPELLATE JURISDICTION OF SANDIGANBAYAN. The

Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate
jurisdiction as herein provided. (RA 10660, amending PD 1606 and
RA 8249). NOTE FURTHER: The Sandiganbayan shall have
exclusive original jurisdiction over petitions for the issuance of
the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court (RA 10660, amending PD 1606 and
RA 8249).

13. Violation of RA 9165 is within the jurisdiction of the RTC

regardless of who committed it or the manner of its commission.
In this case, RA 9165 specifies the RTC as the court with the
jurisdiction to "exclusively try and hear cases involving violations of
[RA 9165]." This is an exception, couched in the special law on
dangerous drugs, to the general rule under Section 4 (b) of PD 1606,
as amended by RA 10660. It is a canon of statutory construction that
a special law prevails over a general law and the latter is to be
considered as an exception to the general (De Lima vs. Guerrero,
G.R. No. 229781, October 10, 2017).

14. Where should the criminal action be instituted? Where the

offense was committed or, where any of its essential ingredients
occurred.

15. What is the effect if the prosecution was not able to prove that
the crime was committed in place where the action was filed? In
a case, the prosecution failed to show that the offense of estafa under
Section 1(b), Art. 315 was committed within the jurisdiction of the
RTC of Makati. Other than the lone allegation in the information,
there is nothing in the prosecution evidence which even mentions that
any of the elements of the offense were committed in Makati. There
being no showing that the offense was committed within Makati, RTC
45
 of that City has no jurisdiction over the offense (Trenas vs. People,
664 SCRA 355).

16. What are the exemptions to the rule on venue in criminal cases?
1) Where the offense was committed under the circumstances
enumerated in Art. 2, of the RPC. 2) Where the SC ordered the change
of venue. 3) Where an offense is committed in train, aircraft, or other
public or private vehicle in the course of its trip, the criminal action
need not be instituted in the actual place where the offense was
committed. It may be instituted and tried in the court of any
municipality or territory where such train, aircraft, or vehicle passed
during its trip. The action may also be instituted and tried in the place
of departure and arrival (Sec. 15(b), Rule 110). 4) If the crime is
committed on board a vessel, it may be instituted in the port of entry,
or territory where the vessel passed during the voyage (Sec. 15(c), Rule
110. 5) Where the offense is cognizable by Sandiganbayan; 6) RA
8042, as amended.

17. May Philippine courts exercise jurisdiction over an offense

constituting psychological violence under Republic Act (R.A.)
No. 9262 committed through marital infidelity when the alleged
illicit relationship occurred or is occurring outside the country?
Yes. What R.A. No. 9262 criminalizes is not the marital infidelity per
se but the psychological violence causing mental or emotional
suffering on the wife. Otherwise stated, it is the violence inflicted
under the said circumstances that the law seeks to outlaw. Marital
infidelity as cited in the law is only one of the various acts by which
psychological violence may be committed. Moreover, depending on
the circumstances of the spouses and for a myriad of reasons, the illicit
relationship may or may not even be causing mental or emotional
anguish on the wife. Thus, the mental or emotional suffering of the
victim is an essential and distinct element in the commission of the
offense (AAA vs. BBB, G.R. No. 212448, January 11, 2018).

18. What is the venue in BP 22? The venue in BP 22 is where the checks
drawn, issued, delivered, dishonored (Yaong vs. People, 704 SCRA 195),
and, deposited (Brodeth vs. People, November 29, 2017).

XVIII. PROSECUTION OF OFFENSES

1. How is criminal action instituted? It depends on whether the

offense requires preliminary investigation: If PI is required, then
criminal action is instituted by filing a complaint or information with
the proper officer for the purpose of preliminary investigation. If it is
not required, by filing a complaint or information directly with the
MTC or MCTC or by filing a complaint with the office of the
prosecutor in if it is in MM or other chartered cities.

2. What is the significance of the institution of criminal action on

the prescriptive period of crime? Institution of the criminal action
46
 shall interrupt the period of prescription of the offense charged unless
otherwise provided in special laws. PLEASE TAKE NOTE: The
ruling in Zaldivia vs. Reyes, 211 SCRA 277, is not anymore
controlling that with respect to special laws, prescription is interrupted
by the filing of information in Court (RA 3326). Now, what is
controlling is People vs. Pangilinan, 672 SCRA 105, June 13, 2012,
wherein the SC ruled that there is no more distinction between cases
under the RPC and those covered by special laws.

3. When is the running of prescriptive period of violation of

ordinances interrupted? Zaldivia vs. Reyes is still controlling in so far
as ordinances are concerned. Upon the filing of the Information in
Court. Jurisprudence exists showing that when the Complaint is filed
with the Office of the Prosecutor who then files the Information in
court, this already has the effect of tolling the prescription period. The
recent People v. Pangilinan categorically stated that Zaldivia v. Reyes is not
controlling as far as special laws are concerned. Pangilinan referred to
other cases that upheld this principle as well. However, the doctrine
of Pangilinan pertains to violations of special laws but not to
ordinances (Jadewell vs. Lidua, G.R. No. 169588, October 7,
2013).

4. The husband executed a complaint for adultery against his wife

and the latter’s paramour. The husband went to the US and
resided there. The fiscal filed an information of adultery. Both
accused filed a motion to quash on the ground that private
crimes can only be prosecuted at the instance of the offended
party. Since the offended spouse is already in the US, the
accused contends that he lost already interest in the case. Should
the case be dismissed? NO. In a long line of decisions, this Court
has maintained strict adherence to the requirement by Article 344 of
the Revised Penal Code. It must be borne in mind, however that this
legal requirement was imposed “out of consideration for the aggrieved
party who might prefer to suffer the outrage in silence rather than go
through the scandal of a public trial.” Thus, the law leaves it to the
option of the aggrieved spouse to seek judicial redress for the affront
committed by the erring Spouse. If the offended already manifested
his desire to file charges against both accused. Then the requirement
was already complied with (People vs. Ilarde, 125 SCRA 11).

5. Is the trial court divested of its jurisdiction over the person of

the accused and over the offense charged if the Information filed
by the investigating prosecutor does not bear the imprimatur of
the Chief because of the absence on its face of both the word
“approved” and the signature of the authorized officer such as
the provincial, city or chief state prosecutor? NO. It is sufficient
for the validity of the Information or Complaint, as the case may be,
that the Resolution of the investigating prosecutor recommending for
the filing of the same in court bears the imprimatur of the provincial,
city or chief state prosecutor whose approval is required by Sec. 1 of
R.A. No. 5180 and is adopted under Sec. 4, Rule 112 of the Rules of
47
 Court. (Villa-Gomez vs. People, G.R. No. 216824, November 10,
2020). NOTE: Quisay vs. People was already abandoned by Villa-
Gomez vs. People.

6. The averments of the informations to the effect is that the two

accused "with intent to kill, qualified with treachery, evident
premeditation and abuse of superior strength did x x x assault,
attack and employ personal violence upon” the victims “by then
and there shooting them with a gun, hitting them” on various
parts of their bodies “which were the direct and immediate
cause of their deaths. Is this allegation sufficient? NO. The
allegation does not sufficiently set forth the facts and circumstances
describing how treachery attended each of the killings. The State must
specify in the information the details of the crime and any
circumstance that aggravates his liability for the crime. The
requirement of sufficient factual averments is meant to inform the
accused of the nature and cause of the charge against him in order to
enable him to prepare his defense (People vs. Valdez, 679 Phil. 279
(2012); People v. Dasmariñas, G.R. No. 203986, October 4, 2017;
People v. Delector, G.R. No. 200026, October 4, 2017). This was
reaffirmed in the case of People vs. Solar, GR No. 225595, August
6, 2019.

7. Solar Guidelines in alleging aggravating and qualifying

circumstance: 1) Any Information which alleges that a qualifying or
aggravating circumstance is present, must state the ultimate facts
relative to such circumstance. Otherwise, the Information may be
subject to a motion to quash under Section 3 (e) (i.e., that it does not
conform substantially to the prescribed form), Rule 117 of the Revised
Rules of Criminal Procedure, or a motion for a bill of particulars under
the parameters set by said Rules. 2) Failure of the accused to avail any
of the said remedies constitutes a waiver of his right to question the
defective statement of the aggravating or qualifying circumstance in
the Information, and consequently, the same may be appreciated
against him if proven during trial. 3) Alternatively, prosecutors may
sufficiently aver the ultimate facts relative to a qualifying or
aggravating circumstance by referencing the pertinent portions of the
resolution finding probable cause against the accused, which
resolution should be attached to the Information in accordance with
the second guideline below. 4) Prosecutors must ensure compliance
with Section 8 (a), Rule 112 of the Revised Rules on Criminal
Procedure that mandates the attachment to the Information of the
resolution finding probable cause against the accused. Trial courts
must ensure that the accused is furnished a copy of this Resolution
prior to the arraignment (People vs. Solar, GR No. 225595, August
6, 2019).

8. When is objection to the form of the complaint or information

be made? Objections relating to the form of the complaint or
information cannot be made for the first time on appeal. The accused
should move before arraignment either for bill of particulars or
48
 quashal of the information. If he fails to pursue either remedy, he is
deemed to have waived his objection to any formal defect in the
information (People vs. Teodoro, 607 SCRA 307).

9. Is it necessary to allege in the information the qualifying and

aggravating circumstance? What is the effect the information
failed to allege the same? Every information must state the
qualifying and the aggravating circumstances attending the
commission of the crime. Failure to state an aggravating circumstance,
even if duly proven at trial, will not be appreciated as such (People
vs. Felciano, May 5, 2014).

10. When is amendment made without leave of court? A complaint

or information may be amended without leave of court, at any time
before the accused enters his plea. After the plea and during trial, a
formal amendment by only be made with leave of court and when it
is done without causing prejudice to the rights of the accused (Sec.
14, Rule 110).

11. When is leave of court required even if amendment is made

before plea? First, amendment which downgrades the nature of the
offense charged. Second, amendment which excludes any accused
from the complaint or information.

12. Rule on Amendments: a) It is a matter of right, as to form and

substance before arraignment. b) If it downgrades the nature of the
offense or excludes any accused from the information, it has to be by
leave of court and with notice to offended party. c) Only formal
amendment may be made after arraignment and there has to be with
leave of court.

13. Examples of Formal Amendments: 1) New allegations which relate

only to the range of the penalty that the court might impose in the
event of conviction. 2) An amendment which does not charge another
offense different or distinct from that charged in the original one; 3)
Additional allegations which do not alter the prosecution's theory of
the case so as to cause surprise to the accused and affect the form of
defense he has or will assume; 4) An amendment which does not
adversely affect any substantial right of the accused. An amendment
that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and merely
states with additional precision something which is already contained
in the original information, and which adds nothing essential for
conviction for the crime charged (Ricarze vs. CA, G.R. No.160451,
Feb. 9, 2007).

14. An information for Murder was filed against Samonte for killing
Espinosa. Samonte has been interposing self-defense as a
defense. After the arraignment of Samonte, the Prosecution filed
a Motion for Leave to Admit Amended Information for Murder
against Samonte and Corpus. The Amended information
49
 alleged conspiracy between Samonte and Corpus. The latter
being the one who paid Samonte to kill Espinosa. Samonte
objected the admission of the Amended Information on the
ground that the Amended Information prejudice his right as the
Amended Information rendered his defense not anymore
available. Is Samonte correct? SAMONTE IS CORRECT. While
conspiracy is merely a formal amendment, Samonte will be prejudiced
if the amendment will be allowed after his plea. Applying the test, his
defense and corresponding evidence will not be compatible with the
allegation of conspiracy in the new information. Therefore, such
formal amendment after plea is not allowed. (Corpus, Jr. v. Pamular,
G.R. No. 186403, September 5, 2018; People v. Casey, 190 Phil.
748-767 (1981).

15. When is formal amendment prejudicial to the accused? Whether

the defense under the original information will not anymore available
after the amendment is made and if any evidence that an accused
might offer is not anymore applicable after amendment, the
amendment will prejudice the rights of the accused. (Corpus, Jr. v.
Pamular, G.R. No. 186403, September 5, 2018; eople v. Casey,
190 Phil. 748-767 (1981).

XIX. PROSECUTION OF CIVIL ACTION, PI & ARREST

1. GENERAL RULE: When a criminal action is instituted, the civil

action for the recovery of the civil liability arising from the offense
charged shall be deemed impliedly instituted (Section 1, Rule 111).

2. Consequences when the civil liability is instituted with the

criminal action. After the criminal action is commenced, the separate
civil action arising therefrom cannot be instituted until final judgment
has been entered in the criminal action. If the criminal action is filed
after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the
merits (Sec. 2, Rule 111).

3. During the pendency of the criminal action, the running of the period
of prescription of the civil action which cannot be instituted separately
or whose proceeding has been suspended shall be tolled. The
extinction of the penal action does not carry with it extinction of the
civil action (Section 2, Rule 111).

4. However, the civil action based on delict shall be deemed extinguished

if there is a finding in a final judgment in the criminal action that the
act or omission from which the civil liability may arise did not exist
(Sec. 2, Rule 111).

5. When civil action may proceed independently? In the cases

provided in Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action
50
 and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same
act or omission charged in the criminal action (Sec. 3, Rule 111).

6. Consequences of independent civil action. The right to civil action

shall proceed independently of the criminal action. The quantum of
evidence required is preponderance of evidence. THERE IS NO
NEED FOR RESERVATION BECAUSE THE CIVIL
ACTION IS NOT BASED ON CRIME.

7. Rule on BP 22 cases: The criminal action for violation of Batas

Pambansa Blg. 22 shall be deemed to include the corresponding civil
action. No reservation to file such civil action separately shall be
allowed. However, a separate proceeding for the recovery of civil
liability in cases of violation of BP 22 is allowed when civil case if filed
ahead of the criminal case (Lo Bun Tiong vs. Balboa, 542 SCRA
504; Section 2, Rule 111).

8. Rules on the effect of death of accused before final judgment: 1)

Death of the accused pending appeal of his conviction extinguishes
his criminal liability as well as the civil liability based solely thereon. 2)
The claim for civil liability survives notwithstanding the death of the
accused, if the same may also be predicated on some source of
obligation other than delict. 3) Where civil liability survives, an action
for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to section 1, rule 111. This separate
civil action may be enforced against the executor/administrator or
estate of the accused depending on the source of obligation (People
vs. Bayotas G.R. 102007, September 2, 1994).

9. Prejudicial question. A prejudicial question is understood in law to

be that which arises in a case the resolution of which is a logical
antecedent of the issue involved in the criminal case, and the
cognizance of which pertains to another tribunal. It is determinative
of the criminal case, but the jurisdiction to try and resolved it is lodged
in another tribunal (Dominguez Agronomic vs. Liclican, 2015).

10. Elements. The elements of a prejudicial question are: (a) the

previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and (b)
the resolution of such issue determines whether or not the criminal
action may proceed.

11. NOTE: There is prejudicial question when the civil case is previously
filed. If the criminal case is filed first, there is no pre-judicial question
(Pimentel vs. Pimentel, 630 SCRA 436).

12. Omictin vs. CA, 512 SCRA 70. The petitioner, as the supposed
operations manager of the corporation filed an estafa case against the
private respondent, in behalf of the corporation. Before the filing of
the estafa case, private respondent filed before the SEC a case
51
 questioning the legality of petitioner’s appointment as corporate
officer. Private respondent filed a motion to suspend on the ground
of pre-judicial question. THERE IS PRE-JUDICIAL
QUESTION. Under the circumstances, since the alleged offended
party is a corporation, the validity of the demand for the delivery of
the subject vehicles rests upon the authority of the person making
such a demand on the company’s behalf. Thus, if it is found out that
the petitioner’s appointment is invalid, he has no right to demand for
and in behalf of the corporation and the demand to return is likewise
invalid. Hence, a prejudicial question.

13. An administrative case previously filed can also be used as pre-judicial

question to a criminal case. An administrative case is deemed a civil
case. (San Miguel Properties vs. Perez, 2013).

14. Is it mandatory that the civil case must first be filed before the
same constitute a prejudicial question? Not necessarily. The strict
sequence of institution of the two actions as provided for by Section
7, Rule 111 of the 2000 Revised Rules of Criminal Procedure is more
directory than mandatory, and must give way to the chief litmus test
of whether the two actions involve prejudicial issues and facts that are
similar or otherwise intimately related so that a resolution in one
concludes the resolution in the other (People vs. Camenforte, G.R.
No. 220916, June 24, 2021).

15. Is nullity of the previous and subsequent marriage a defense in

bigamy case?

Yes. The parties are not required to obtain a judicial declaration

of absolute nullity of a void ab initio first and subsequent
marriages in order to raise it as a defense in a bigamy case. The
same rule now applies to all marriages celebrated under the Civil
Code and the Family Code. Article 40 of the Family Code did
not amend Article 349 of the RPC, and thus, did not deny the
accused the right to collaterally attack the validity of a void ab
initio marriage in the criminal prosecution for bigamy (People
vs. Pulido, G.R. No. 220149, July 27, 2021).

NOTE:

In view of the decision of the Court in People vs. Pulido, it is

submitted that the pendency of a petition for declaration of nullity of
the first and second marriage should suspend the bigamy case because
the guilt or innocence of the accused will be determined by the
resolution of the court in petition for declaration of nullity of the first
or subsequent marriage. Or, the accused in a bigamy case may
challenge collaterally the validity of first and subsequently marriage.

16. Preliminary Investigation. Rule 43, cannot be availed of to

question the finding of probable cause of the Sec of DOJ on
petition for review. Probable cause for the purpose of filing an
52
 information in court consists in such facts and circumstances as would
engender a well-founded belief that a crime has been committed and
the accused may probably be guilty thereof. The determination of
probable cause lies solely within the sound discretion of the
investigating public prosecutor after the conduct of a preliminary
investigation. It is a sound judicial policy to refrain from interfering
with the determination of what constitutes sufficient and convincing
evidence to establish probable cause for the prosecution of the
accused.

17. May hearsay evidence be admitted during preliminary

investigation? YES. The evidence necessary to establish probable
cause is based only on the likelihood, or probability of guilt. In fact,
probable cause can be established with hearsay evidence. According
to the case of Estrada, hearsay evidence is admissible in determining
probable cause in the preliminary investigation because such
investigation is merely preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate
rights and obligations of the parties (Estrada vs. Office the
Ombudsman. Jan. 21, 2015).

18. What is an inquest “proceedings”? When a person is lawfully

arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be
filed by a prosecutor without need of such investigation
provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit
of the offended party or arresting officer or person (Section 6, Rule
112).

19. Can a person validly arrested without a warrant ask for

preliminary investigation? YES. Before the complaint or
information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver
of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception. After the filing of the
complaint or information in court without a preliminary investigation,
the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule (Section, 6, Rule
112).

20. Duty of the Judge upon filing of the complaint or information.

1) Issue warrant of arrest upon finding of probable cause. 2) Dismiss
the case if the evidence on record do not establish probable cause. 3)
Order the prosecutor to submit evidence if he entertains doubt as the

53
 existence of probable cause (People vs. Desmond, G.R. No.
178947, June 26, 2013).

21. What is the remedy if the case is dismissed by the Court based
on lack of probable cause? The proper remedy is appeal. The order
dismissing the case for lack of probable cause is a “final order since it
disposes of the case, terminates the proceedings, and leaves the court
with further nothing to do with respect to the case (Cajipe vs.
People, April 23, 2014).

22. Arrest without warrant. 1) When, in his presence, the person to be

arrested has committed, is actually committing, or is attempting to
commit an offense; 2) When an offense has just been committed and
he has probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it; and
3) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another (Section 5, Rule
113).

23. Duty of Inquest Prosecutor. 1) Determine whether the arrested

person was arrested lawfully in accordance with Sec. 5(a) and
(b), Rule 113; 2) If arrest is illegal, he shall not proceed with the
inquest and recommend the release of the arrested person which
recommendation should be approved by the head; 3) If the
arrest is found legal, he shall proceed with the inquest, and if he
finds probable cause, an information will be filed; 4) He may ask
the arrested person if he wants to avail his right of PI, but in the
presence of his counsel, the arrested person will be asked to sign
a waiver of the provision of Article 125.

24. Can the accused appeal the resolution of the inquest

prosecutor’s finding of probable cause to the SOJ? NO. The
Supreme Court in Leviste vs. Alameda, G.R. No. 182677, August
3, 2010, held that the remedy of appeal to the SOJ is not immediately
available in cases subject of inquest. The private party should first avail
of a preliminary investigation or reinvestigation, if any, before
elevating the matter to the SOJ.

25. When is preliminary investigation required? Except as provided

in section 7 of this Rule, a preliminary investigation is required to be
conducted before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least four (4) years,
two (2) months and one (1) day without regard to the fine (Sec. 1,
Rule 112).

26. Objection by the accused to an arrest without a warrant must be made

before he enters his plea, otherwise, the objection is deemed waived
(People vs. Vallejo, Nov. 19, 2003).

54
 27. The waiver to question the illegality of arrest does not carry with it the
waiver of the inadmissibility of the evidence obtained during illegal
arrest (People vs. Aruta, April 13, 1998).

28. Posting of bail does not constitute waiver of irregularity of arrest (Sec.
26., Rule 114).

29. Honasan II vs. DOJ Panel, April 13, 2004. The power of the
Ombudsman to investigate offenses involving public officers or
employees is not exclusive but is concurrent with other similarly
authorized agencies of the government such as the provincial, city and
state prosecutors has long been settled in several decisions of the
Court. In other words, respondent DOJ Panel is not precluded from
conducting any investigation of cases against public officers involving
violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, then respondent Ombudsman may,
in the exercise of its primary jurisdiction take over at any stage.

XX. BAIL

1. When is bail a matter of right? All persons in custody shall be

admitted to bail as a matter of right, with sufficient sureties, or released
on recognizance as prescribed by law or this Rule (a) before or after
conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and
(b) before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment.

2. When bail hearing is discretionary. A hearing of the application for

bail is to be conducted when a person is in custody for the commission
of an offense punishable by death, reclusion perpetua, or life
imprisonment. In the hearing, the prosecution has the burden of
showing that the evidence of guilt is strong. Bail hearing is
mandatory.

3. Where should application for bail be filed after conviction of the

RTC? RTC even if notice of appeal is filed so long as the records are
still with the RTC. If the decision of the RTC convicting the accused
changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed and resolved by the
APPELLATE COURT.

4. Is the condition that the accused be arraigned first before he can

post bail valid? In Lavides vs. CA, 324 SCRA 321, the Supreme
Court held that the grant of bail should not be conditioned upon prior
arraignment of the accused. In cases where bail is authorized, bail
shouuld be granted before arraignment; otherwise, the accused will be
precluded from filing a motion to quash which is to be done before
arraignment. HOWEVER: Arraignment should first be conducted
before accused may be allowed to post bail (Guidelines for
Continuous Trial).
55
 5. Guidelines in resolving applications for bail in case the accused
is charged with non-bailable offense: A. In all cases, whether bail
is a matter of right or of discretion, notify the prosecutor of the
hearing of the application for bail or require him to submit his
recommendation (Section 18, Rule 114 of the Rules of Court as
amended), B. Where bail is a matter of discretion, 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; (Sections 7 and 8, supra). C. Decide whether the guilt of
the accused is strong based on the summary of evidence of the
prosecution; D) If the guilt of the accused is not strong, discharge the
accused upon the approval of the bailbond (Section 19, supra).
Otherwise petition should be denied (Enrile vs. Sandiganbayan,
G.R. No. 213847, August 18, 2015; Cortes vs. Catral, September
10, 1997).

XXI. RIGHTS OF THE ACCUSED

1. What is equipoise rule? It is a situation where the court is faced with

conflicting versions of the prosecution and defense and where the
evidence, facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt. The court has to acquit
pursuant to presumption of innocence under the constitution (People
vs. Erguiza, 571 SCRA 634). BUT: When the accused admits the
killing but pleads self-defense, the burden shifts to the accused to
prove his innocence by clear and convincing evidence. Self-defense,
when invoked, implies the admission of by the accused that he
committed the criminal act (People De los Santos, GR 207818, July
23, 2014).

2. What is custodial investigation? Any questioning initiated by law

enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in some significant way.
It starts when the police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a particular suspect
taken into custody by the police who starts the interrogation and
propounds questions to the person to elicit incriminating statements.

3. Rule on police line-up re right to counsel: A police line-up is not

part of the custodial investigation since the accused at that stage is not
yet being investigated. In line-up, the right to counsel does not yet
attach (People vs. Tolentino, 423 SCRA 448). However, when the
accused has already been pointed, the investigation ceases to be a
general inquiry. Thus, the person pointed to has now the right to
counsel for he is already under custodial investigation (Mesina vs.
People, GR 162489, June 17, 2015).

56
 4. Right to counsel applies during preliminary investigation. The
right to counsel applies in certain pre-trial proceedings that can be
deemed critical stages in the criminal process like in preliminary
investigation. This investigation can be no different from the in-
custody-interrogations by the police, for the suspect who takes part in
a preliminary investigation will be subjected to no less than state’s
processes, oftentimes intimidating and relentless, of pursuing those
who might be liable for criminal prosecution (People vs. Sunga, 339
SCRA 624).

5. Right to confrontation. The right to confrontation is part of due

process not only in criminal proceedings but also in civil proceedings
as well as in proceedings in administrative tribunals with quasi-judicial
powers. It has a two-fold purpose: 1) primarily, to afford the accused
an opportunity to test the testimony of the witness by cross-
examination; and 2) secondarily, to allow the judge to observe the
deportment of the witness (People vs. Sergio, G.R. No. 240053,
October 9, 2019).

6. In People vs Sergio, the Court allowed the taking of deposition

through written interrogatories of Mary Jane in Indonesia in the
criminal case for human trafficking filed against the accused. The
Judge was present during the taking of deposition. The accused
objected because according to them, it violated their right to
confrontation. RULING: The SC in People vs Sergio, ruled that
accused were not deprived of their right to cross-examination. They
are allowed to do so through written interrogatories. The second
purpose of the right to confrontation was also complied with as the
Judge was present during the taking of deposition through written
interrogatories (People vs. Sergio, G.R. No. 240053, October 9,
2019, J. Hernando).

XXIII. ARRIGNMENT

1. When the presence of the private offended party needed? The

private offended party shall be required to appear at the arraignment
for purposes of plea bargaining, determination of civil liability, and
other matters requiring his presence. In case of failure of the offended
party to appear despite due notice, the court may allow the accused to
enter a plea of guilty to a lesser offense which is necessarily included
in the offense charged with the conformity of the trial prosecutor
alone (Sec. 1(f), Rule 116).

2. When should plea of guilty to a lesser offense be made? Plea of

guilty is allowed at arraignment. Section 2, Rule 115 provides: “at
arraignment, the accused, with the consent of the offended party and
the prosecutor, may be allowed by the trial court to plead guilty to a
lesser offense which is necessarily included in the offense charged.
After arraignment but before trial, the accused may still be
allowed to plead guilty to said lesser offense after withdrawing

57
 his plea of not guilty. No amendment of the complaint or
information is necessary.”

2. May it be made after the prosecution rested its case? Yes. It has
been held that it may also be considered during trial proper or even
after the prosecution has finished presenting it evidence and rested its
case. It is immaterial that the plea bargaining was not made during the
pre-trial stage or that it was made only after the prosecution already
presented several witnesses (Daan vs. Sandiganbayan, 550 SCRA
233).

3. What are the requisites of plea of guilty to a lesser offense? 1) the

lesser offense is necessarily included in the offense charged; 2) the
plea must be with the consent of both the offended party and the
prosecutor (Section 2, Rule 116).

4. What are the obligations of the Court when the accused pleaded
guilty to a capital offense? A) The Judge shall conduct searching
inquiry into the voluntariness and comprehension of the plea. B)
Require the prosecution to prove his guilt and the precise degree of
his culpability. C) Allow the accused to present evidence in his behalf
(Section 3, Rule 116).

5. Guidelines concerning pleas of guilty to capital offenses: A) AT

THE TRIAL STAGE. 1) When the accused makes a plea of guilty
to a capital offense, the trial court must strictly abide by the provisions
of Sec. 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure.
In particular, it must afford the prosecution an opportunity to present
evidence as to the guilt of the accused and the precise degree of his
culpability. Failure to comply with these mandates constitute grave
abuse of discretion. 2) In case the plea of guilty to a capital offense is
supported by proof beyond reasonable doubt, the trial court shall
enter a judgment of conviction. 3) In case the prosecution presents
evidence but fails to prove the accused's guilt beyond reasonable
doubt, the trial court shall enter a judgment of acquittal in favor of the
accused. 4) In case the prosecution fails to present any evidence
despite opportunity to do so, the trial court shall enter a judgment of
acquittal in favor of the accused. In the above instance, the trial court
shall require the prosecution to explain in writing within ten (10) days
from receipt its failure to present evidence. Any instance of collusion
between the prosecution and the accused shall be dealt with to the full
extent of the law (People vs. Pagal, G.R. No. 241257, September
29, 2020).

AT THE APPEAL STAGE. 1) When the accused is convicted of a

capital offense on the basis of his plea of guilty, whether improvident
or not, and proof beyond reasonable doubt was established, the
judgment of conviction shall be sustained. 2) When the accused is
convicted of a capital offense solely on the basis of his plea of guilty,
whether improvident or not, without proof beyond reasonable doubt
because the prosecution was not given an opportunity to present its
58
 evidence, or was given the opportunity to present evidence but the
improvident plea of guilt resulted to an undue prejudice to either the
prosecution or the accused, the judgment of conviction shall be set
aside and the case remanded for re-arraignment and for reception of
evidence pursuant to Sec. 3, Rule 116 of the 2000 Revised Rules of
Criminal Procedure. 3) When the accused is convicted of a capital
offense solely on the basis of a plea of guilty, whether improvident or
not, without proof beyond reasonable doubt because the prosecution
failed to prove the accused's guilt despite opportunity to do so, the
judgment of conviction shall be set aside and the accused acquitted
(People vs. Pagal, G.R. No. 241257, September 29, 2020).

6. When is bill of particulars available? When the Information,

though sufficiently charges an offense, is insufficient to give the
accused sufficient details of the alleged offenses. It seeks
particularization in the information to enable the accused to properly
be informed of the charge against him and enable to prepare his
defense. The particularity must be such that persons of ordinary
intelligence may immediately know what the Information means
(Romualdez v. Sandiganbayan, 479 Phil. 265).

7. Modes of discovery in criminal cases. SECTION 10. Production

or Inspection of Material Evidence in Possession of
Prosecution. — Upon motion of the accused showing good cause
and with notice to the parties, the court, in order to prevent surprise,
suppression, or alteration, may order the prosecution to produce and
permit the inspection and copying or photographing of any written
statement given by the complainant and other witnesses in any
investigation of the offense conducted by the prosecution or other
investigating officers, as well as any designated documents, papers,
books, accounts, letters, photographs, objects, or tangible things not
otherwise privileged, which constitute or contain evidence material to
any matter involved in the case and which are in the possession or
under the control of the prosecution, police, or other law investigating
agencies.

8. What are the grounds to suspend the arraignment? (a) 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. In such case, the court
shall order his mental examination and, if necessary, his confinement
for such purpose; (b) There exists a prejudicial question; and (c) A
petition for review of the resolution of the prosecutor is pending at
either the Department of Justice, or the Office of the President;
provided, that the period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office.
(Section 11, Rule 116).

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XXIV. MOTION TO QUASH

1. What are the grounds for motion to quash? a) That the facts
charged do not constitute an offense, (NOT WAIVABLE); b) That
the court trying the case has no jurisdiction over the offense charged,
(NOT WAIVABLE); c) That the court trying the case has no
jurisdiction over the person of the accused, (WAIVABLE); d) That
the officer who filed the information had no authority to do so,
(WAIVABLE); e) That it does not conform substantially to the
prescribed form, (WAIVABLE); f) That more than one offense is
charged except when a single punishment for various offenses is
prescribed by law (WAIVABLE); g) That the criminal action or
liability has been extinguished, (NOT WAIVABLE); h) That it
contains averments which, if true, would constitute a legal excuse or
justification, (NOT WAIVABLE); and, i) 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, (NOT WAIVABLE). (Section 3, Rule 117).

2. Motion to quash is subject to the omnibus motion rule. The

failure of the accused to assert any ground of a motion to quash before
he pleads to the complaint or information, either because he did not
file a motion to quash or failed to allege the same in said motion, shall
be deemed a waiver of any objections.

3. What are the exceptions? Facts do not constitute an offense? 1)

Lack of jurisdiction over the subject matter; 2) Extinction of criminal
liability; 3) Double jeopardy.

4. Will the quashal of information bar to another prosecution? An

order sustaining the motion to quash is not a bar to another
prosecution for the same offense. This means that another complaint
or information may be filed.

5. What are the exemptions? Extinction of criminal liability and

double jeopardy.

6. Requisites of Double Jeopardy. A) A valid complaint or

Information; B) Competent court; C) Valid plea entered by him; D)
Acquittal or conviction of the accused, or the dismissal or termination
of the case against him without his express consent. NOTE: There
are dismissals that would be tantamount to acquittal despite the
consent of the accused: 1) dismissal due to demurrer; 2)
dismissal due to violation of the constitutional right of the
accused to speedy trial.

7. If the defect in the information is curable by amendment, should

the motion to quash be granted? NO. In People v. Andrade, the
Court said: If the defect in the information is curable by
amendment, the motion to quash shall be denied and the
prosecution shall be ordered to file an amended information.
60
 Generally, the fact that the allegations in the information do not
constitute an offense, or that the information does not conform
substantially to the prescribed form, are defects curable by
amendment. Corollary to this rule, the court should give the
prosecution an opportunity to amend the information (Lazaro vs.
People, G.R. No. 230018, June 23, 2021).

XXV. PROVISIONAL DISMISSAL

1. SECTION 8. Provisional Dismissal. — A case shall not be

provisionally dismissed except with the express consent of the
accused and with notice to the offended party. The provisional
dismissal of offenses punishable by imprisonment not exceeding six
(6) years or a fine of any amount, or both, shall become permanent
one (1) year after issuance of the order without the case having been
revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become
permanent two (2) years after issuance of the order without the case
having been revived.

3. Under the Section 14 of A.M. No. 12-11-2-SC (Guidelines for

Decongesting Holding Jails by Enforcing the Rights of Accused
Persons to Bail and Speedy Trial), the one or two-year period for
reviving as criminal case that has been provisionally dismissed shall be
reckoned from the issuance of the order of dismissal.

4. A motion to withdraw information was filed by the prosecution.

The accused did not object. After more than two years, the
prosecution filed the same information. Can it still be revived?
YES. A motion to withdraw information is not time-barred and
does not fall within the ambit of Sec. 8, Rule 117 of the Revised Rules
on Criminal Procedure (Torres vs. Aguinaldo, 461 SCRA 599).

5. How to discharge a co-accused to become a state witness: The

prosecution shall file a motion; The motion shall be filed before the
prosecution rests its case (Section 17, Rule 119).

6. What should be the action of the Court? The court shall require
the prosecution to present evidence and the sworn statement of each
proposed witness. The Court shall conduct a hearing in support of the
discharge (Section 17, Rule 119).

7. Requisites before the accused may be discharge as a state

witness: 1) Two or more accused are jointly charged with the
commission of an offense. 2) The motion to discharge is filed by the
prosecution before it rests its case. 3) The prosecution is required to
present evidence and the sworn statement of each proposed witness
at the hearing of the discharge.

8. Requisites before the accused may be discharge as a state

witness: The trial court is satisfied that:
61
 (a) There is absolute necessity for the testimony of the
accused whose discharge is requested;
(b) There is no other direct evidence available for the proper
prosecution of the offense committed, except the
testimony of said accused;
(c) The testimony of said accused can be substantially
corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any
offense involving moral turpitude.

9. What is the effect of the discharge of the co-accused? RULE 119,

SECTION 18. Discharge of Accused Operates as Acquittal. —
The order indicated in the preceding section shall amount to an
acquittal of the discharged accused and shall be a bar to future
prosecution for the same offense, unless the accused fails or refuses
to testify against his co-accused in accordance with his sworn
statement constituting the basis for his discharge.

10. May the Court motu-propio dismiss the case for lack or
insufficiency of evidence? YES. After the prosecution rests its case,
the court may dismiss the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard (Section 23, Rule 119).

11. Effect of Demurrer. The granting of demurrer to evidence is

tantamount to acquittal. Although the grant of a demurrer to evidence
amounts to an acquittal and that the order of dismissal is not subject
to appeal, it may be reviewed thru certiorari (People vs.
Sandiganbayan, August 5, 2015). The order denying the motion for
leave of court to file demurrer to evidence or the demurrer itself shall
not be reviewable by appeal or by certiorari before judgment (Section
23, Rule 119).

XXVI. TRIAL & JUDGMENT

1. Conditional Examination of Defense witness. - If the court is

satisfied that the examination of a witness for the accused is necessary,
an order shall be made directing that the witness be examined at a
specific date, time and place and that a copy of the order be served on
the prosecutor at least three (3) days before the scheduled
examination. The examination shall be taken before a judge, or, if not
practicable, a member of the Bar in good standing so designated by
the judge in the order, or if the order be made by a court of superior
jurisdiction, before an inferior court to be designated therein. The
examination shall proceed notwithstanding the absence of the
prosecutor provided he was duly notified of the hearing. A written
record of the testimony shall be taken (Section 13, Rule 119).

62
2. Conditional examination of prosecution witness. - When it
satisfactorily appears that a witness for the prosecution is too sick or
infirm to appear at the trial as directed by the court or has to leave the
Philippines with no definite date of returning, he may forthwith be
conditionally examined before the court where the case is pending.
Such examination, in the presence of the accused, or in his absence
after reasonable notice to attend the examination has been served on
him, shall be conducted in the same manner as an examination at the
trial. Failure or refusal of the accused to attend the examination after
notice shall be considered a waiver. The statement taken may be
admitted in behalf of or against the accused (Section 15, Rule 119).

3. May taking of deposition under Rule 23 of the Rules on Civil

Procedure be applied in criminal cases? YES under extra-ordinary
situation (People vs. Sergio, G.R. No. 240053, October 9, 2019, J.
Hernando).

4. SECTION 1. Judgment; Definition and Form. — Judgment is the

adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition on him of the proper penalty and
civil liability, if any. It must be written in the official language,
personally and directly prepared by the judge and signed by him and
shall contain clearly and distinctly a statement of the facts and the law
upon which it is based.

5. Can civil liability be awarded despite acquittal? Yes. In case the

judgment is of acquittal, it shall state whether the evidence of the
prosecution absolutely failed to prove the guilt of the accused or
merely failed to prove his guilt beyond reasonable doubt. In either
case, the judgment shall determine if the act or omission from which
the civil liability might arise did not exist (Section 2, Rule 120).

6. Variance between the allegation and proof. When there is variance

between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved (Section 4,
Rule 120).

7. When is an offense included or includes in another? An offense

charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those
constituting the latter (Section 5, Rule 120).

8. How is a judgment promulgated? RULE 120, SECTION 6.

Promulgation of Judgment. — The judgment is promulgated by
reading it in the presence of the accused and any judge of the court in
63
 which it was rendered. However, if the conviction is for a light
offense, the judgment may be pronounced in the presence of his
counsel or representative. When the judge is absent or outside the
province or city, the judgment may be promulgated by the clerk of
court.

9. How is judgment promulgated in case the accused fails to

appear? In case the accused fails to appear at the scheduled date of
promulgation of judgment despite notice, the promulgation shall be
made by recording the judgment in the criminal docket and serving
him a copy thereof at his last known address or thru his counsel
(Section 6. Rule 120).

10. If the judgment is for conviction and the failure of the accused to
appear was without justifiable cause, he shall lose the remedies
available in these rules against the judgment and the court shall order
his arrest. Within fifteen (15) days from promulgation of judgment,
however, the accused may surrender and file a motion for leave of
court to avail of these remedies. He shall state the reasons for his
absence at the scheduled promulgation and if he proves that his
absence was for a justifiable cause, he shall be allowed to avail of said
remedies within fifteen (15) days from notice (Section 6. Rule 120).

XXVII. POST JUDGMENT REMEDY

Appeal From Appeal to Mode of Appeal

First level Courts RTC Notice of Appeal (Rule
40)
RTC (Original CA Notice of Appeal (Rule
Jurisdiction) 41)
RTC (Appellate CA Petition for Review (R.
Jurisdiction) 42)
RTC imposes RP, LI, or CA Notice of Appeal (Rule
lesser penalty 41)
RTC imposes Death CA Automatic Review
CA imposes penalty SC Petition for Review
other than death, RP, LI under Rule 45
CA imposes death SC CA renders judgment,
but refrains from
making an entry of
judgment and certifies
the case and elevates to
SC for Review
CA imposes RP or Life SC Notice of Appeal (Rule
imprisonment 41)

XXVIII. SEARCHES AND SEIZURE

1. Is search warrant a criminal action? It is not. A search warrant is

not a criminal action nor does it represent a commencement of a
criminal action. It is not a proceeding against a person but is solely for
the discovery and to get possession of personal property. Since it is
64
 not a criminal action, it can be prosecuted without the direct control
and participation of the public prosecutor.

2. Where should application for search warrant be filed? Any court

within whose territorial jurisdiction a crime was committed. For
compelling reasons stated in the application, any court within the
judicial region where the crime was committed if the place of the
commission of the crime is known, or any court within the judicial
region where the warrant shall be enforced. However, if the criminal
action has already been filed, the application shall only be made in the
court where the criminal action is pending. (Section 2, Rule 126).

3. In cases involving heinous crimes, illegal gambling, dangerous drugs

and illegal possession of firearms. EJ and Vice-EJS of RTCs Manila
and Quezon City in application filed by PNP, NBI, PAOC-TF,
REACT-TF (A.M. No. 99-20-09-SC, January 25, 2000).

HOWEVER: THIS HAS ALREADY BEEN AMENDED BY

THE RULES ON BODY WORN CAMERA.

NOTE:

SECTION 2. Search Warrants in Special Criminal Cases by Executive Judges

of Regional Trial Courts. - Except for the jurisdiction of the Special
Commercial Courts to issue search warrants involving intellectual
property rights violations, the Executive Judges and, whenever
they are on official leave of absence or are not physically present
in the station, the Vice-Executive Judges of the Regional Trial
Courts shall have authority to act on applications for search warrants
to be implemented within their judicial regions, filed by the National
Bureau of Investigation, the Philippine National Police, the Anti-
Crime Task Force, the Philippine Drug Enforcement Agency, and the
Bureau of Customs, for search warrants involving heinous crimes,
illegal gambling, illegal possession of firearms and
ammunitions, -as well as violations of the Comprehensive
Dangerous Drugs Act of 2002, the Anti-Money Loundering Act
of 2001, the Customs Modernization and Tariff Act, and other
relevant laws that may later be enacted by Congress and included in
these Rules by the Supreme Court.

The applications shall be personally endorsed by the heads of such

agencies and shall particularly describe the places to be searched
and/or the properties or. things to be seized as prescribed in the Rules
of Court. They shall also state the compelling reasons for filing the
application with these courts. The Executive Judges and Vice-
Executive Judges concerned shall issue the warrants, if justified, which
may be served in places outside the territorial jurisdiction, but within
the judicial. regions pf these courts.

The Executive Judges and the authorized Judges shall keep a special
docket book listing the names of Judges to whom the applications are
65
 assigned, the details of the applications, and the results of the searches
and seizures made pursuant" to the warrants issued.

This shall be an exception to Section 2, Rule 126 of the Revised

Rules of Criminal Procedure (Rule 3, Rules on the Use of Body-
Worn Cameras in the Execution of Warrants, A.M. No. 21 -06-
08-SC).

4. Requisites for the issuance of a search warrant? A search warrant

shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the
Philippines (Section 4, Rule 126).

5. Dissection of Section 4. 1) It must be based upon probable cause.

2) Probable cause must be determined by the judge himself and not
by the applicant or any other person. 3) In the determination of
probable cause, the judge must examine, under oath, the complainant
and such witnesses he may produce. 4) The warrant issued must
particularly describe the place to be searched and the person or things
to be seized.

6. How shall examination by the Judge should be conducted? The

judge must, before issuing the warrant, personally examine in the form
of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally
known to them and attach to the record their sworn statements,
together with the affidavits submitted. (Section 5, Rule 126).

7. Where to file the motion to quash or to suppress evidence? A

motion to quash a search warrant and/or to suppress evidence
obtained thereby may be filed in and acted upon only by the court
where the action has been instituted. If no criminal action has been
instituted, the motion may be filed in and resolved by the court that
issued the search warrant. However, if such court failed to resolve the
motion and a criminal case is subsequently filed in another court, the
motion shall be resolved by the latter court. (Section 14, Rule 126).

8. Parameters of search incident to a lawful arrest. Valeroso vs. CA,

598 SCRA 41 – the cabinet is situated in the area different from where
the accused was arrested or temporarily detained. The cabinet is not
an area within the immediate reach and control of the accused.
Espano vs. CA, 288 SCRA 558 – Accused was arrested outside his
house. The subsequent search of his house after his arrest is invalid.

9. Passing through a check point, petitioner was flagged down.

The police asked for the registration of his motorcycle. He could
not produce the registration of his motorcycle. Finding this
suspicious, the police inspected the compartment of his
66
 motorcycle and found small block of marijuana. For which
reason, the accused was arrested. Is the search valid?

Yes, the search is valid. The subsequent arrest is likewise valid. In Uy

vs. People, the SC considered the fact of petitioner’s not being able to
produce the registration of his motorcycle as enough reason for the
police officer to conduct an extensive search. Ordinarily, search of
vehicle is limited to routine or visual search. However, the situation,
in the case at bar, creates probable cause which would justify a
reasonable belief on the part of the law enforcers that either the
petitioner is a law offender, or that the contents of the vehicle are, or
have been, instruments of some offense (Rolando Uy vs. People
G.R. No. 217097, February 23, 2022, J. Hernando).

NOTE:

Inspections at checkpoints are not violative of an individual's

right against unreasonable searches if limited to the
following: (a) the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds; (b)
simply looks into a vehicle; (c) flashes a light therein without
opening the car's doors; (d) where the occupants are not
subjected to a physical or body search; (e) where the
inspection of the vehicles is limited to a visual search or
visual inspection; and (e) where the routine check is
conducted in a fixed area (Rolando Uy vs. People
G.R. No. 217097, February 23, 2022, J. Hernando).

XXIX. EVIDENCE

1. Rule 128, Sec. 1. Evidence is the means, sanctioned by these rules,

of ascertaining in a judicial proceeding the truth respecting a matter
of fact.

2. Scope and Applicability. The rules of evidence shall be the same in

all courts and in all trials and hearings, except as otherwise provided
by law or these rules. (Sec. 2, Rule 128). The rule does not apply to
election cases, land registration and cadastral cases,
naturalization and insolvency proceedings, except by analogy or in
a suppletory character and whenever practicable and convenient (Sec.
4, Rule 1).

3. Is the rule on electronic evidence applicable to criminal cases?

Yes. The SC in People vs. Enojas, March 10, 2014 ruled: As to the
admissibility of the text messages, the RTC admitted them in
conformity with the Court's earlier Resolution applying the Rules on
Electronic Evidence to criminal actions (A.M. No. 01-7-01-SC, Re:
Expansion of the Coverage of the Rules on Electronic Evidence,
September 24, 2002, which now covers criminal cases).
67
4. Ong Chia vs. Republic, 328 SCRA 749 - The RTC granted the
petitioner’s petition for naturalization. The CA reversed the decision
on the ground that the RTC admitted evidence which were not
formally offered in evidence in violation of Sec. 34, Rule 132 of the
Rules of Court. According to SC, the rule on formal offer of evidence
is not applicable to petition for naturalization unless applied by
analogy or in a suppletory character and whenever practicable and
convenient.

5. Factum probandum vs. factum probans. Factum probandum is the

fact or proposition to be established, while factum probans is the fact or
material evidencing the fact or proposition to be established. The
factum probandum is the fact to be proved; it is the fact which is in issue
in a case and to which the evidence is directed. On the other hand,
factum probans is the probative or evidentiary fact tending to prove the
fact in issue.

6. Is admissibility of evidence the same as weight of evidence? No.

the admissibility of evidence should not be equated with the weight of
the evidence. The admissibility of evidence depends on its relevance
and competence while the weight of evidence pertains to its tendency
to convince and persuade. A particular item of evidence may be
admissible, but its evidentiary weight depends on judicial evaluation
with the guidelines provided by the rules on evidence (Tating vs.
Marcella, 519 SCRA 79).

7. Fundamental requisites for the admissibility of evidence -

Evidence is admissible when it is relevant to the issue and is not
excluded by the Constitution, the law of these rules (Section 3, Rule
128).

8. Does the Constitution provide for a rule of evidence? Section 3,

in relation to Section 2 of Article III of the Constitution and Section
12(3) in relation to Section 17 of Article III. Thus, the new Rule
deemed it to include the Constitution in Section 3, because it also
provides for rules for excluding evidence in the court of justice.

9. What is circumstantial evidence? It is that evidence which

indirectly proves a fact in issue through an inference which the fact
finder draws from the evidence established.

10. Can there be conviction by circumstantial evidence? Yes,

provided the following requisites are present: first, there is more than
one circumstance; second, the facts from which the inferences are
derived are proved; and third, the combination of all the
circumstances is such as to produce conviction beyond reasonable
doubt (People vs. Cadenas, G.R. No. 233199, November 5, 2018).

68
11. What is burden proof? Burden of proof is the duty of a party to
present evidence on the facts in issue necessary to establish his or her
claim or defense by the amount of evidence required by law. Burden
of proof never shifts (Section 1, Rule 131). For instance, it is always
the burden of the prosecution in criminal case to prove the accused
beyond reasonable doubt. In civil case, he or she who asserts an
affirmative fact has the burden of proof to establish his or her
allegations (Lavadia vs. Heirs of Luna, G.R. No. 171914, July 23,
2014).

12. What is burden of evidence? Burden of evidence is the duty of a

party to present evidence sufficient to establish or rebut a fact in issue
to establish a prima facie case. Burden of evidence may shift from one
party to the other in the course of the proceedings, depending on the
exigencies of the case (Section 1, Rule 131). If the accused admits the
killing, the burden of evidence is shifted to the accused to prove his
defenses (Flores vs. People, February 27, 2013).

13. If the administrative case filed against the petitioner is

dismissed, should the criminal case arising from the same facts
be dismissed likewise? YES. If the criminal case will be prosecuted
based on the same facts and evidence as that in the administrative
case, and the court trying the latter already squarely ruled on the
absence of facts and/or circumstances sufficient to negate the basis
of the criminal indictment, then to still burden the accused to present
controverting evidence despite the failure of the prosecution to
present sufficient and competent evidence, will be a futile and useless
exercise (Pahkiat, et.al. vs. Ombudsman, G.R. No. 223972,
November 3, 2020).

14. What is the effect of 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 introduced evidence to prove
the fact for a presumption is prima facie proof of the fact presumed
(Diesel Construction vs. UPSI Property, 549 SCRA 12).

15. What is the effect of disputable presumption? The effect of a

presumption upon a burden of proof is to create the need of
presenting evidence to overcome the prima facie case created by the
presumption. If no contrary proof is offered, the presumption will
prevail (Diaz vs. People, GR No. 2018113, December 2, 2013).

16. What is the hierarchy of proof? The following are the hierarchy of
proofs: 1) substantial evidence, 2) preponderance of evidence, 3) clear
and convincing evidence, and 4) proof beyond reasonable doubt.

17. What are the situations where the quantum of proof of clear and
convincing evidence is required? 1. To prove justifying
circumstance (People vs. Abina, GR No. 220146, April 18, 2018).
2. To prove bad faith and fraud (Aliling v. Feliciano, G.R. No. 185829,
April 25, 2012, 671 SCRA 186, 217). 3. To pierce the veil of
69
 corporate fiction (Manila Hotel vs. NLRC, G.R. No. 120077, October 10,
2000). 4. For the successful invocation of the defense of alibi (People
vs. Bation, GR No. 123160, March 24, 1999). 5. To prove jurisdictional
requirements in the reconstitution of a destroyed or lost title (De La
Paz vs. Republic, GR No. 195726, November 20, 2017). 6. In proving
consented search (Villanueva vs. People, November 17, 2014). 7. In
granting bail in extradition proceedings (Government of Hongkong vs.
Munoz, GR No. 207342, August 17, 2016).

18. Mandatory judicial notice - A court shall take judicial notice,

without the introduction of evidence, of the existence and territorial
extent of states, their political history , forms of government and
symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and
history of the Philippines, official acts of the legislative, executive and
judicial departments of the National Government of the Philippines,
the laws of nature, the measure of time, and the geographical divisions
(Section 1, Rule 129).

19. Can the Court take mandatory judicial notice of ordinance

passed by a local government unit? NO. While courts are required
to take judicial notice of the laws enacted by Congress, the rule with
respect to local ordinances is different. Ordinances are not included
in the enumeration of matters covered by mandatory judicial notice
under Section 1, Rule 129 of the Rules of Court (Social Justice
Society vs. Atienza, G.R. No. 156052, Feb. 13 2008).

20. Judicial Notice, Discretionary. A court may take judicial notice of

matters which are of 1) public knowledge, or 2) are capable of
unquestionable demonstration, or 3) ought to be known to
judges because of their judicial functions. (Sec. 2, Rule 129).

21. There are two (2) civil cases pending between the same parties. One
is being heard by Branch 92. The other one is being heard by Branch
93. Can Branch 92 take judicial notice of the case pending in
Branch 93? ANSWER: A court will take judicial notice of its own
acts and records in the same case (Republic vs. CA, 277 SCRA 633).

22. Suppose the two cases are pending in the same branch, which
is Branch 92, can the Judge take judicial notice of the other case
between the same parties? ANSWER: Courts are not authorized
to take judicial notice of the contents of the records of other cases,
even such cases have been tried or pending in the same court (LBP
vs. Yatco Agricultural Enerprises, Jan. 15, 2014).

23. How can the judge take judicial notice of the case pending in
the same Court? When in the absence of any objection and with the
knowledge of the opposing party, the contents of said other case are
clearly referred to by title and number in a pending action and adopted
and read into the records of the other case; When they are requested

70
 to form part of the record of the other case (Tabuena vs. CA, 196
SCRA 650).

24. Judicial admission. Sec. 4, Rules 129. An admission, oral or written,

made by the party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that the
imputed admission was not, in fact, made.

25. Admission during pre-trial in criminal case does not result to judicial
admission if it does not comply with Section 2, Rule 118. Section 2,
Rule 118, Pre-trial agreement. - All agreements or admissions made or
entered during the pre-trial conference shall be reduced in writing and
signed by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters referred to
in Section 1 of this Rule shall be approved by the court.

26. How about the stipulations of facts during trial? It is not required
that it be signed the lawyer and the accused. The stipulation of acts is
already contained in the TSN. The lawyer is presumed to have prima
facie authority to make relevant admission by pleadings, by oral or
written stipulation which unless withdrawn are conclusive. (People
vs. Hernandez, 206 SCRA 25; Silot vs. Dela Rosa, 543 SCRA 533).

27. How about admission in an amended pleading? Section 8, Rule

10, provides that when a pleading is amended, the amended pleading
supersedes the pleading that it amends and the admission in the
superseded pleading may be received in evidence against the pleader.
But the admission will be treated as extra-judicial admission (Torres
vs. CA, 131 SCRA 24; Ching vs. CA, 331 SCRA 16).

28. How about admission in a dismissed pleading? It is merely extra-

judicial judicial admission (Servicewide Specialist Inc., vs. CA, 257
SCRA 643).

29. How about admission of a proposed state witness? If the motion

to discharge an accused as a state witness is denied, his sworn
statement, submitted to support the motion, shall be inadmissible in
evidence (Sec. 17, Rule 119).

30. What is the effect of judicial admission? Judicial admissions are

legally binding on the party making the admission. It is an established
principle that judicial admission cannot be contradicted by the
admitter who is the party himself and binds the person who makes
the same, absent any showing that this was made through palpable
mistake, no amount of rationalization can offset it (PCIC vs. Central
Colleges of the Phil. 666 SCRA 540).

31. What is object evidence? Objects as evidence are those addressed

to the senses of the court. When an object is relevant to the fact in

71
 issue, it may be exhibited to, examined, or viewed by the court
(Section 1, Rule 130).

32. May right against self-incrimination be invoked against object

evidence? NO. The right may only be invoked against testimonial
compulsion. The kernel of the right is not against all compulsion, but
against testimonial compulsion. The right against self-incrimination is
simply against the legal process of extracting from the lips of the
accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object
evidence (Augustin vs. CA, G.R. No. 162571, June 15, 2005).

33. Links in the Chain of Custody. First, the seizure and marking of
the confiscated drugs recovered from the accused; Second, the
turnover of the illegal drug seized by the apprehending officer to the
investigating officer; Third, the turnover by the investigating officer
of the illegal drug to the forensic chemist for laboratory examination;
Fourth, the turnover and submission of the marked illegal drug by the
forensic chemist to the court (People vs. Kamad, 610 SCRA 295).

34. Documentary evidence - Section 2, Rule 130. Documents as

evidence consist of writings, recordings, photographs or any material
containing letters, words, sounds, numbers, figures, symbols, or their
equivalent, or other modes of written expression offered as proof of
their contents. Photographs include still pictures, drawings, stored
images, x-ray films, motion pictures or videos. NOTE: even
recordings, sounds, and photographs are classified as documentary if
they are offered as proofs of their contents. REMEMBER THIS:
what makes evidence documentary if the purpose for which it is
offered. If the purpose of the offer is to prove its contents, then
it is documentary evidence.

35. Original Document Rule. When the subject of inquiry is the

contents of a document, writing, recording, photograph or other
record, no evidence is admissible other than the original document
itself, (Section 3, Rule 130). PLEASE REMEMBER: Original
document rule is applicable only in documentary evidence. It does not
apply to object evidence.

36. What is an original document? An “original” of a document is the

document itself or any counterpart intended to have the same effect
by a person executing or issuing it. An “original” of a photograph
includes the negative or any print therefrom. If data is stored in a
computer or similar device, any printout or other output readable by
sight or other means, shown to reflect the data accurately, is an
“original” (Section 4(a), Rule 130).

37. What is a duplicate? A “duplicate” is a counterpart produced by the

same impression as the original, or from the same matrix, or by means
of photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by chemical reproduction,
72
 or by other equivalent techniques which accurately reproduce the
original (Section 4(b), Rule 130).

38. What is the evidentiary value of a duplicate? A duplicate is

admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original, or (2) in the
circumstances, it is unjust or inequitable to admit the duplicate in lieu
of the original (Section 4(c), Rule 130).

39. Exceptions to original document rule. (a) When the original is lost
or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror; (b)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, or the original cannot
be obtained by local judicial processes or procedures; (c) 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; (d) When the original is a public record in the custody of a
public officer or is recorded in a public office; and (e) When the
original is not closely related to a controlling issue.

40. Parol evidence. - 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, as between the parties and their successors in interest,
no evidence of such terms other than the contents of the written
agreement (Sec. 10, Rule 130).

41. Instances where a party may modify, explain or add to the terms
of written agreement. (a) An intrinsic ambiguity, mistake or
imperfection in the written agreement; (b) The failure of the written
agreement to express the true intent and agreement of the parties
thereto; (c) The validity of the written agreement; or (d) The
existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement. PLEASE
TAKE NOTE: Before a party may be allowed to introduce parol
evidence, he or she must put the foregoing issues in a verified
pleading (Section 10, Rule 130).

42. Who is qualified to become a witness? All persons who can

perceive, and perceiving, can make known their perception to others,
may be witnesses. Religious or political belief, interest in the outcome
of the case, or conviction of a crime, unless otherwise provided by
law, shall not be a ground for disqualification (Section 21, Rule 130).

43. What may be testified to? A witness can testify only to those facts
which he or she knows of his or her personal knowledge; that is, which
are derived from his or her own perception (Section 22, Rule 130).

44. Disqualification by Marriage. During their marriage, the husband

or the wife cannot testify against the other without the consent of the
73
 affected spouse, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other or the
latter’s direct descendants or ascendants (Section 23, Rule 130).

45. Before the marriage of H and W, W witnessed H killing Y. W did not

report the incident to the police. Later, H and W got married. They
had falling out. Consequently, W reported the incident she witnessed
when they were still sweethearts. May the prosecution present W
as a witness in a murder case filed against H? ANSWER: Over
the objection of H, the prosecution may not call W to testify against
H. To call W to testify against H while their marriage is still would
violate the marital disqualification rule.

46. Supposed W was called to testify after their marriage had been
annulled, would your answer be the same? My answer would not
be the same. Since the marriage is not anymore existing, the marital
disqualification rule would not apply.

47. May a spouse testify in a trial where the other spouse is a co-
accused? Yes, except as against her husband (People vs. Quitado,
297 SCRA 1).

48. May a spouse testify in a trial against her estranged husband?

Yes. (Alvarez vs. Ramirez, 473 SCRA 72.).

49. Marital privilege communication rule - The husband or the wife,

during or after the marriage, cannot be examined without the consent
of the other as to any communication received in confidence by one
from the other during the marriage except in a civil case by one against
the other, or in a criminal case for a crime committed by one against
the other or the latter’s direct descendants or ascendants (Section
24(a), Rule 130).

50. Elements of marital privilege communication rule - 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 information was received during marriage.

51. When is information considered confidential? The general rule is

that communications between spouses is presumed confidential
unless shown otherwise. Communications made in the presence of
third person are not confidential unless the third person may be
considered as agent of the spouses.

52. Who are covered by the lawyer-client privilege? 1) Attorney; 2) or

person reasonably believed by the client to be licensed to engage in
the practice of law; 3) secretary; 4) stenographer; 5) clerk; and 6) other
persons assisting the attorney (Sec. 24(b), Rule 130).

53. Is it necessary that there should be lawyer-client relationship

before the rule may be applied? NO. The “rules” provides that
74
 “communications or advice given with the view to professional
employment.

54. Exceptions to lawyer-client privilege – (i) Furtherance of crime

or fraud. If the services or advice of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit what
the client knew or reasonably should have known to be a crime or
fraud; (ii) Claimants through same deceased client. As to a
communication relevant to an issue between parties who claim
through the same deceased client, regardless of whether the claims are
by testate or intestate or by inter vivos transaction; (iii) Breach of
duty by lawyer or client. As to a communication relevant to an issue
of breach of duty by the lawyer to his or her client, or by the client to
his or her lawyer; (iv) Document attested by the lawyer. As to a
communication relevant to an issue concerning an attested document
to which the lawyer is an attesting witness; or (v) Joint clients. As to
a communication relevant to a matter of common interest between
two or more clients if the communication was made by any of them
to a lawyer retained or consulted in common, when offered in an
action between any of the clients, unless they have expressly agreed
otherwise (Section 24(b), Rule 130).

55. Is psychologist covered by doctor-patient privilege? YES.

Psychologist is included in the term psychotherapist.

56. Confessional box privilege. A minister, priest or person

reasonably believed to be so cannot, without the consent of the
affected person, be examined as to any communication or
confession made to or any advice given by him or her, in his or her
professional character, in the course of discipline enjoined by the
church to which the minister or priest belongs. (Section 24(d), Rule
130).

57. Offer of compromise in civil cases – An offer of compromise is not

an admission of any liability, and is not admissible in evidence against
the offeror. Neither is evidence of conduct nor statements made in
compromise negotiations admissible, except evidence otherwise
discoverable or offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution
(Section 28, Rule 130).

58. Officer of compromise in criminal cases – Except in criminal

negligence, an offer of compromise, by the accused may be received
in evidence as an implied admission of guilt. HOWEVER, an offer
to pay, or the payment of medical, hospital or other expenses
occasioned by an injury, is not admissible in evidence as proof of civil
or criminal liability for the injury. (Section 28, Rule 130).

75
59. Two branches of res inter alios acta. First Branch - The rights of
a party cannot be prejudiced by an act, declaration or omission of
another (Sec. 28, Rule 130). Second Branch - The evidence of
previous conduct or similar acts at one time is not admissible to prove
that one did or did not do the same at another time (Sec. 34, Rule
130).

60. Example of first branch – If Roberto makes a statement before the

media admitting his participation in the murder of Carla, his statement
is admissible against him under Section 27, Rule 130. If he made a
statement implicating Lito and Carlos is not admissible against Lito
and Carlos applying the principle of res inter alios acta.

61. Is this applicable to judicial admission? No. because res inter alios
acta is applicable only to extra-judicial admission, but it does not cover
judicial admission because the other accused can cross-examine.
(Yapyuco vs. Sandiganbayan, 674 SCRA 420).

62. Exception to res inter alios acta: Section 30. Admission by co-
partner or agent. — The act or declaration of a partner or agent
authorized by the party to make a statement concerning the
subject, or within the scope of his or her authority, and during the
existence of the partnership or agency, may be given in evidence
against such party after the partnership or agency is shown by
evidence other than such act or declaration. The same rule applies to
the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party. (Rule 130).

NOTE THE REQUISITES: 1) The declaration or act of the

partner or agent must have been made or done within the scope of
his authority or when the agent is authorized by the party to make a
statement concerning the subject; 2) The declaration or act must
have been done during the existence of the partnership or agency; 3)
The existence of partnership or agency is proven by evidence other
than the declaration or act of the partner or agent.

63. Exception to res inter alios acta: Section 31. Admission by

conspirator. – The act or declaration of a conspirator in furtherance
of the conspiracy and during its existence may be given in evidence
against the co-conspirator after the conspiracy is shown by evidence
other than such act of declaration. (Rule 130).

64. NOTE THE REQUISITES: 1) The declaration or act be made or

done during the existence of the conspiracy; 2) The declaration or act
must relate to or in furtherance of the conspiracy; 3) The conspiracy
must be shown by evidence other than such declaration.

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65. Exception to res inter alios acta: Section 32. Admission by
privies. – Where one derives title to property from another, the
latter's act, declaration, or omission, in relation to the property, is
evidence against the former if done while the latter was holding the
title. (Rule 130).

NOTE THE REQUISITES: 1) There must be an act, declaration,

or omission by a predecessor-in-interest; 2) The act, declaration, or
omission of the predecessor-in-interest must have occurred while he
was holding the title to the property; 3) The act, declaration or
omission must be in relation to the property.

66. Exception to res inter alios acta: Section 33. Admission by

silence. –An act or declaration made in the presence and within the
hearing or observation of a party who does or says nothing when the
act or declaration is such as naturally to call for action or comment if
not true, and when proper and possible for him or her to do so, may
be given in evidence against him or her. (Rule 130).

NOTE THE REQUISITES: 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; 3) He must have understood the statement; 4)
He must have an interest to object as he would naturally have done if
the statement was not true; 5) The facts are within his knowledge; and
6) The fact admitted or the inference to be drawn from his silence is
material to the issue. (People vs. Ciobal, G.R. No. 86220, April 20,
1990).

67. Similar conduct rule: Similar acts as evidence. – Evidence that

one did or did not do a certain thing at one time is not admissible to
prove that he or she did or did not do the same or a similar thing at
another time; but it may be received to prove a specific intent or
knowledge, identity, plan, system, scheme, habit, custom or usage, and
the like. (Section 34, Rule 130).

68. Hearsay rule: Section 37. Hearsay. – Hearsay is a statement other

than one made by the declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted therein. A statement is
(1) an oral or written assertion or (2) a non-verbal conduct of a person
if it is intended by him or her as an assertion. Hearsay evidence is
inadmissible except as otherwise provided in these Rule (Rule 130).

NOTE: There are two personalities in hearsay: the declarant

and the witness. The witness will testify on the declaration of the
declarant and the purpose of the testimony of the witness is to
prove the truth of the matters asserted in the declaration. That
would make the testimony of the witness hearsay.

69. Elements of hearsay. 1) There must be an out of court statement

which was not made by the declarant in the hearing or trial; 2) The

77
 statement is offered by the witness in court to prove the truth of the
matters asserted by the statement

70. Exception to hearsay. RULE 130, Section 38. Dying declaration.

The declaration of a dying person, made under the consciousness of
an impending death, may be received in any case wherein his or her
death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.

71. PLEASE TAKE NOTE: For a "dying declaration" to be admissible

in court, the following requisites must concur: a. That the declaration
must concern the cause and surrounding circumstances of the declarant's death; b.
That at the time the declaration was made, the declarant was under a
consciousness of an impending death; c. That the declarant is competent as a
witness; and d. That the declaration is offered in a criminal case for homicide,
murder, or parricide, in which the declarant is the victim. (People vs.
Mercado, G.R. No. 218702, October 17, 2018).

72. Exception to hearsay. RULE 130, Section 39. Statement of

decedent or person of unsound mind. – In an action against an
executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of
unsound mind, where a party or assignor of a party or a person in
whose behalf a case is prosecuted testifies on a matter of fact
occurring before the death of the deceased person or before the
person became of unsound mind, any statement of the deceased or
the person of unsound mind, may be received in evidence if the
statement was made upon the personal knowledge of the deceased or
the person of unsound mind at a time when the matter had been
recently perceived by him or her and while his or her recollection was
clear. Such statement, however, is inadmissible if made under the
circumstances indicating its lack of trustworthiness. NOTE: there is
no more Dead Man Statute because those who are prohibited to
testify under the dead man statute are now allowed to testify as
exceptions to the hearsay rule.

73. Exception to hearsay. RULE 130, Section 40. – Declaration against

interest. - The declaration made by a person deceased or unable to
testify against the interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to the
declarant's own interest that a reasonable person in his or her
position would not have made the declaration unless he or she
believed it to be true, may be received in evidence against himself or
herself or his or her successors in interest and against third persons.
A statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement.

78
74. Exception to hearsay. RULE 130, Section 41. – Act or declaration
about pedigree. – The act or declaration of a person deceased or unable
to testify, in respect to the pedigree of another person related to him
or her by birth, adoption, or marriage or, in the absence thereof,
with whose family he or she was so intimately associated as to
be likely to have accurate information concerning his or her
pedigree, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown
by evidence other than such act or declaration. The word "pedigree"
includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names
of the relatives. It embraces also facts of family history intimately
connected with pedigree.

75. Exception to hearsay. RULE 130, Section 42. – Family reputation or

tradition regarding pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any
one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by
consanguinity, affinity, or adoption. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.

76. Exception to hearsay. RULE 130, Section 43. – Common

reputation. – Common reputation existing previous to the
controversy, as to boundaries of or customs affecting lands in the
community and reputation as to events of general history
important to the community, or respecting marriage or moral
character, may be given in evidence. Monuments and inscriptions in
public places may be received as evidence of common reputation.

77. Exception to hearsay. RULE 130, Section 44. –Part of the res
gestae. – Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto, under the
stress of excitement caused by the occurrence with respect to the
circumstances thereof, may be given in evidence as part of the res
gestae. So, also, statements accompanying an equivocal act material to
the issue, and giving it a legal significance, may be received as part of
the res gestae.

78. PLEASE TAKE NOTE: The following requisites must, thus, be

satisfied for the exception on res gestae to apply: (i) that the principal
act, the res gestae, be a startling occurrence; (ii) that the statements
were made before the declarant had the time to contrive or devise a
falsehood; and (iii) that the statements must concern the occurrence
in question and its immediate attending circumstances. In determining
the admissibility of evidence as part of the res gestae, the test is whether
the act or declaration was made as a spontaneous reaction and is so
intimately interwoven or connected with the principal fact or event
that it characterizes as to be regarded as a part of the transaction itself

79
 and whether it negates any premeditation or purpose to manufacture
testimony (People vs. XXX, G.R. No. 205888, August 22, 2018).

79. Exception to hearsay. RULE 130, Section 45. – Records of

regularly conducted business activity. – A memorandum, report,
record or data compilation of acts, events, conditions, opinions, or
diagnoses, made by writing, typing, electronic, optical or other similar
means at or near the time of or from transmission or supply of
information by a person with knowledge thereof and kept in the
regular course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of which are
shown by the testimony of the custodian or other qualified witnesses,
is excepted from the rule on hearsay evidence.

80. Exception to hearsay. RULE 130, Section 46. – Entries in official

records. – Entries in official records made in the performance of his
or her duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated.

81. PLEASE TAKE NOTE: Requisites: 1) The entry was made by a

public officer or by another person specifically enjoined by law
to do so. 2) It was made by the public officer, or by such other person
in the performance of a duty specifically enjoined by law; 3. The
public officer had sufficient knowledge of the facts he stated which
must have been acquired by the public officer personally or through
official information (Alvarez v. PICOP Resources, G.R. Nos.
162243, 164516 & 171875, December 3, 2009, 606 SCRA 444, 525;
citing Africa vs. Caltex, 123 Phil. 272, 277 (1966).

82. Exception to hearsay. RULE 130, Section 47. – Commercial lists

and the like. – Evidence of statements of matters of interest to
persons engaged in an occupation contained in a list, register,
periodical, or other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation and is
generally used and relied upon by them therein.

83. Exception to hearsay. RULE 130, Section 48. – Learned

treatises. – A published treatise, periodical or pamphlet on a subject
of history, law, science, or art is admissible as tending to prove the
truth of a matter stated therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the writer of the statement
in the treatise, periodical or pamphlet is recognized in his or her
profession or calling as expert in the subject.

84. Exception to hearsay. RULE 130, Section 49. – Testimony or

deposition at a former proceeding. –The testimony or deposition
of a witness deceased or out of the Philippines or who cannot, with
due diligence, be found therein, or is unavailable or otherwise
80
 unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be
given in evidence against the adverse party who had the opportunity
to cross-examine him or her.

85. Exception to hearsay. RULE 130, Section 50. – Residual

exception. – A statement not specifically covered by any of the
foregoing exceptions, having equivalent circumstantial guarantees of
trustworthiness, is admissible if the court determines that (a) the
statement is offered as evidence of a material fact; (b) the statement is
more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable
efforts; and (c) the general purposes of these rules and the interests of
justice will be best served by admission of the statement into evidence.
However, a statement may not be admitted under this exception
unless the proponent makes known to the adverse party, sufficiently
in advance of the hearing, or by the pre-trial stage in the case of a trial
of the main case, to provide the adverse party with a fair opportunity
to prepare to meet it, the proponent’s intention to offer the statement
and the particulars of it, including the name and address of the
declarant.

86. When may electronic document, like computer generated

statement of accounts admissible in evidence? For the Court to
consider an electronic document as evidence, it must pass the test of
admissibility. According to Section 2, Rule 3 of the Rules on
Electronic Evidence, “[a]n electronic document is admissible in
evidence if it complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is authenticated in the manner
prescribed by these Rules.” It must be authenticated by affidavit
of evidence. Even the section on “Business Records as Exception to the
Hearsay Rule” of Rule 8 of the Rules on Electronic Evidence requires
authentication by the custodian or other qualified witness. In the
absence of such authentication through the affidavit of the custodian
or other qualified person, the said annexes or attachments cannot be
admitted and appreciated as business records and excepted from the
rule on hearsay evidence (RCBC vs. Oracion, G.R. No. 22337, June
19, 2019).

XXX. SPECIAL PROCEEDINGS

1. What is special proceedings? A special proceeding is a remedy by

which a party seeks to establish a status, a right, or a particular fact
(Sec. 3[b], Rule 1, RC).

2. Are the rules in ordinary civil action applicable in special

proceedings? Yes, but only in the absence of applicable procedure
(Section 2, Rule 72).

3. Is earnest effort to compromise applicable in special

proceedings? NO. Since special proceeding is not a suit or ordinary
81
 action whereby a party sues another for the enforcement of a right or
prevention of a wrong, the requirement that no suit shall be filed
between the same members of the same family unless it should appear
that earnest efforts toward a compromise have been made, but the
same have failed, does not apply to a special proceeding (Vda de
Manalo vs. CA, GR No. 129242, Janaury 16, 2001).

4. Is certification against forum shopping required in special

proceedings? YES. Special provisions under Part II of the Rules of
Court govern special proceedings; but in the absence of special
provisions, the rules provided for in Part I of the Rules governing
ordinary civil actions shall be applicable to special proceedings, as far
as practicable. This means that in the absence of special provisions,
rules in ordinary actions may be applied in special proceedings as
much as possible and where doing so would not pose an obstacle to
said proceedings which includes the requirement of certification of
non-forum shopping for complaints and initiatory pleadings (Sheker
vs. Estate of Alice Sheker, GR No. 157912, December 13, 2007).

5. What is the extent of the jurisdiction of the probate court? A

probate court acting as such exercises limited jurisdiction. The said
court is primarily concerned with the administration, liquidation, and
distribution of the estate. In fact, the main function of a probate court
is to settle and liquidate the estate of the deceased either summarily or
through the process of administration (Uy vs. CA, March 15, 2006).
Thus, it has the authority to: 1) determine heirs; 2) make a just and
legal distribution of the estate (Solivio vs. CA, February 12, 1990).

6. May a compulsory heir commence an ordinary civil action to

declare the nullity of a deed or instrument, and for recovery of
property, or any other action in the enforcement of their
ownership rights acquired by virtue of succession without the
necessity of a prior and separate judicial declaration of their
status as such? YES. Unless there is a pending special proceeding
for the settlement of the decedent's estate or for the determination of
heirship, the compulsory or intestate heirs may commence an
ordinary civil action to declare the nullity of a deed or
instrument, and for recovery of property, or any other action in
the enforcement of their ownership rights acquired by virtue of
succession, without the necessity of a prior and separate judicial
declaration of their status as such. The ruling of the trial court shall
only be in relation to the cause of action of the ordinary civil action,
i.e., the nullification of a deed or instrument, and recovery or
reconveyance of property, which ruling is binding only between and
among the parties (Treyes vs. Larlar, G.R. No. 232579, September
8, 2020). NOTE: Treyes vs. Larlar reversed the ruling of the Court
Heirs of Magdaleno Ypon vs. Ricaforte (2013).

7. May the probate court pass upon title to properties claimed to

be part of the estate of the deceased? NO. Because the jurisdiction
of the probate court is limited (Paciones, Jr., vs. Chuato-Ching,
82
 August 9, 2005). HOWEVER, however if the purpose is only to
determine whether such property should be included in the inventory,
then probate court can pass title on the property but the determination
of ownership is not conclusive but only provisional (Vda de
Rodriguez vs. CA, July 20, 1979).

8. May the probate court pass upon the title of the property with
finality? IT MAY. The probate court may pass upon the issue of
ownership where the interested parties are the heirs who have all
appeared in the proceeding and the rights of third parties are not
impaired (Munsayac-De Villa vs. CA, October 24, 2003).

9. What is statute of non-claims? It is a period fixed for the filing of

claims against the estate, such that claims not filed within said period
are barred forever. It is subject to the following guidelines: A. Period
fixed must not be less than 6 months nor more than 12 months from
the date of the first publication; B. Such period is mandatory; C. The
statute on non-claims supersedes the statute of limitation (Section 2,
Rule 86). PLEASE TAKE NOTE: There are two exceptions to
the statute of non-claims: First, the creditor may apply with the
court for a new period not exceeding one month before the entry of
order of distribution for good cause shown (Sec. 2, Rule 86).
Second, creditor can set up his claim as a counterclaim in an action
filed by the executor or administrator (Sec. 5, Rule 86).

10. What are the claims that must be filed in the settlement of estate
of the deceased? Section 5. Claims which must be filed under the notice. If
not filed, barred; exceptions. — All claims for money against the decedent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense for
the last sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may
bring against the claimants.

11. 3 remedies available to enforce mortgage against the decedent:

a) To waive the mortgage and claim the entire debt from the estate of
the mortgagor; b) To foreclose the mortgage judicially and prove the
deficiency as an ordinary claim against the estate; c) To rely on the
mortgage exclusively, or other security and foreclose the same at
anytime. Here no claim for deficiency is allowed (Section 7, Rule 86;
Heirs of Maglasang vs. Metrobank, September 23, 2013).

12. To whom shall the remedy of amparo available? 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
(Section 1, Rule on Amparo). NOTE: Writ of amparo is not the
proper remedy if there is no government participation.
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13. Ramon Tulfo and Raymark engaged in a brawl. As a result, the
Tulfo brothers aired on their TV Program comments and
expletives threatening retaliation against Spouses Santiago.
Consequently, Spouses Santiago filed a Petition for Writ of
Amparo against the Tulfos. The latter filed a Motion to Dismiss.
Spouses Santiago opposed the motion on the ground that it is a
prohibited pleading. Should the motion to dismiss be granted?
YES. The Supreme Court ruled that there is no showing in the
Petition that there is extra-judicial killing or enforced disappearance
the way they are understood under the Rules on Writ of Amparo.
Simply put, there is not showing in the Petition that there is
government involvement or participation. The SC said: “Their
petition is merely anchored on a broad invocation of respondents'
purported violation of their right to life and security, carried out by
private individuals without any showing of direct or indirect
government participation. Thus, it is apparent that their amparo
petition falls outside the purview of A.M. No. 07-9-12-SC and,
perforce, must fail (Spouses Santiago vs. Tulfo, G.R. No. 205039,
October 21, 2015).

14. What is writ of habeas data? The writ of habeas data 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
(Section 1, Rule on Habeas Data).

15. Ilagan and Lee were live-in-partners. Lee was able to obtain the
digital camera of Ilagan. Lee found a sex video in it. Lee
confronted Ilagan about it but the latter demanded for the return
of his digital camera. Lee refused. Consequently, Ilagan banged
Lee’s head against the wall. Lee filed a criminal case for
violation of RA 9262. Still, Ilagan is demanding for the return of
the digital camera. Lee refused. Ilagan filed a petition for habeas
data against Lee to compel Lee to produce the camera, as well
as the negative and reproductions thereof. Will the petition
prosper? NO. As defined in Section 1 of the Habeas Data Rule, the
writ of habeas data now stands as "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. Thus, in
order to support a petition for the issuance of such writ, Section 6 of
the Habeas Data Rule essentially requires that the petition sufficiently
alleges, among others, "[t]he manner the right to privacy is violated or
threatened and how it affects the right to life, liberty or security of the
aggrieved party." In other words, the petition must adequately show that there

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 exists a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other (Lee vs. Ilagan, October 8, 2014).

16. Rule 103, Rule 108, RA 9048 as amended by RA 10172, discussed:

A) 1. A person seeking 1) to change his or her first name, 2) to

correct clerical or typographical errors in the civil register, 3) to
change/correct the day and/or month of his or her date of birth,
and/or 4) to change/correct his or her sex, where it is patently clear
that there was a clerical or typographical error or mistake, must first
file a verified petition with the local civil registry office of the city
or municipality where the record being sought to be corrected
or changed is kept, in accordance with the administrative
proceeding provided under R.A. 9048 in relation to R.A. 10172.
A person may only avail of the appropriate judicial remedies under
Rule 103 or Rule 108 in the aforementioned entries after the petition
in the administrative proceedings is filed and later denied (Bartolome
vs. Republic, G.R. No. 243288, August 28, 2019).

B) A person seeking 1) to change his or her surname or 2) to

change both his or her first name and surname may file a petition for
change of name under Rule 103, provided that the jurisprudential
grounds discussed in Republic v. Hernandez are present.

C). A person seeking substantial cancellations or corrections of

entries in the civil registry may file a petition for cancellation or
correction of entries under Rule 108. As discussed in Lee v. Court of
Appeals and more recently, in Republic v. Cagandahan, R.A. 9048
"removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.” (Bartolome
vs. Republic, G.R. No. 243288, August 28, 2019).

17. What is sought to be corrected are both clerical errors and

substantial errors; it is required to file to petitions, one in civil
registrar and the other one in court under Rule 108? NO NEED.
It will be more prudent and judicious for Annabelle, and other persons
similarly situated, to allow the filing of a single petition under Rule
108, rather than two separate petitions before the RTC and the local
civil registrar. This will avoid multiplicity of suits and further litigation
between the parties, which is offensive to the orderly administration
of justice. In any case, RA No. 9048, as amended, did not divest the
trial courts of jurisdiction over petitions for correction of clerical or
typographical errors in a birth certificate. To be sure, the local civil
registrars' administrative authority to change or correct similar errors
is only primary but not exclusive. The regular courts maintain the
authority to make judicial corrections of entries in the civil registry
(Republic vs. Ontuca, G.R. No. 232053, July 15, 2020).

18. PLEASE TAKE NOTE: Venue in Rule 108 is jurisdictional. Rule

108 pertains to a special proceeding, hence the specific provisions on
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 venue, must be observed in order to vest the court with jurisdiction
(Johansen v. Office of the Civil Registrar General, G.R. No.
256951, November 29, 2021).

19. Writ of Kalikasan. – The writ is a remedy available to a natural or

juridical person, entity authorized by law, people's organization, non-
governmental organization, or any public interest group accredited by
or registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public
official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces
(Section 1, Rule 7, Rules of Procedure in Environmental Cases).

20. Where to file? The petition shall be filed with the Supreme Court or
with any of the stations of the Court of Appeals (Section 3, Rule 7,
id).

21. Writ of continuing mandamus. – When any agency or

instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust or station in connection with
the enforcement or violation of an environmental law rule or
regulation or a right therein, or unlawfully excludes another from the
use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the
facts with certainty, attaching thereto supporting evidence, specifying
that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent
to do an act or series of acts until the judgment is fully satisfied, and
to pay damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law, rules
or regulations. The petition shall also contain a sworn certification of
non-forum shopping (Section 1, Rule 8, id).

22. Where do you file the petition for the writ of continuing
mandamus? The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect
or omission occurred or with the Court of Appeals or the Supreme
Court (Section 2, Rule 8, id).

23. SLAPP SUIT. The allegation of SLAPP is set up as a defense in those

cases claimed to have been filed merely as a harassment suit against
environmental actions. The Court finds no occasion to apply the rules
on SLAPP as the Petition has no relation at all to “the enforcement
of environmental laws, protection of the environment or
assertion of environmental rights.” R.A. No. 9262, which involves
cases of violence against women and their children, is not among

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 those laws included under the scope of SLAPP (Mercado vs.
Lopena, G.R. No. 230170, June 6, 2018).

24. What are the requirements before a petition for judicial recognition of
foreign divorce to prosper? For a petition for judicial recognition of
foreign divorce to prosper, the party pleading it must prove the fact
of divorce and the national law of the foreign spouse (Republic vs.
Kikuchi, G.R. No. 243646, June 22, 2022, J. Hernando).

GOOD LUCK

AND

MAY YOU ALL BE FILLED WITH THE HOLY SPIRIT

AMEN!!!

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