Brondial Ausl

2010

REMEDIAL LAW

purple notes

 SPECIAL CIVIL

ACTIONS RULES 62 TO 71

3. The parties to be interpleaded must make effective claims; and 4. The subject matter must be one and the same.

SPECIAL CIVIL ACTIONS UNDER THE RULES OF COURT: Special Civil Special Civil Actions Actions Initiated By Intitiated By Complaints Petitions a. b. c.

d. e.

Interpleader Expropriation Foreclosure of Real Estate Mortgage Partition Forcible Entry and Unlawful Detainer

a. Declaratory Relief b. Review of Adjudication of the COMELEC/COA c. Certiorari d. Prohibition e. Mandamus f. Quo Warranto g. Contempt

Interpleader (Rule 62)

Intervention (Rule 19)

Kind of action

Filed as an original special civil action. Principal action

Filed as an ancillary action depending on the original action.

When proper to file

Plaintiff has no interest in the subject matter of the action or has an interest therein which, in whole or in part, is not disputed by the other parties.

Plaintiff has interest in the matter under litigation, or in the success of either parties or an interest against both to be adversely affected by the distribution of the property in the court or an officer thereof.

Status of defendan t

Defendants are being sued precisely to implead them.

Defendants are already original parties to the pending suit.

The Court’s action

Issue an order requiring the allowance or disallowance of conflicting claimants to implead with one another.

Motion to intervene addressed to the sound discretion of the court.

Note: Refer to the table of jurisdiction for Special Civil Action.

RULE 62

INTERPLEADER INTERPLEADER – 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, to compel the claimants to interplead and to litigate their conflicting claims among themselves (Sec. 1, Rule 62, Rules of Court) When to File: Within a reasonable time after a dispute has arisen without waiting to be sued by either contending claimants. Otherwise, barred by laches or undue delay. Effect When a Claimant Fails to Plead Within the Time Fixed: The court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. Requisites for Interpleader: 1. The plaintiff claims no interest in the subject matter or his claim thereto is not disputed; 2. There must be at least two or more conflicting claimants;

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES Two Remedies; 1. Declaratory Relief 2. Similar Remedies 

The Procedural distinction between the two is that in actions falling under similar remedies, the court is bound to render judgment, whereas in actions falling under declaratory relief, the court may refuse to

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

exercise the power to declare petitioner’s right and to construe the instrument. There is yet no cause of action in a strict sense under declaratory relief. (lectures in Remedial Law, Bengzon, p. 242, 1959 Edition)



Where a declaratory judgment as to disputed fact would be determinative of issues rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory relief.

The similar remedies are: (a) action for reformation of an instrument; (b) action to quiet title; and (c) action to consolidate ownership under Article 1607 of the Civil Code. Requisites for Declaratory Relief: 1. Justiciable controversy; 2. Adverse claim between real parties in interest; 3. Subject matter is a written instrument or a statute or a law; 4. Relief sought is to determine the rights and duties under the statute; 5. There must be no breach or violation of instrument or statute; and 6. No other available or sufficient remedy. 7. The issue involved must be ripe for judicial determination. The subject matter in a petition for declaratory relief is any of the following: a) A deed; b) A will; c) A contract or other written instrument; d) A statute; e) An executive order or regulation; f) An ordinance; or g) Any other governmental regulation (Sec. 1, Rule 63, Rules of Court)

The enumeration of the subject matter is exclusive. Hence, an action not based on any of the enumerated subject matters cannot be the proper subject of declaratory relief. WHEN DECLARATORY RELIEF IS NOT AVAILABLE: 1. Declaration of Citizenship and Registration Certificate - unilateral in nature and without conflicting adverse interest.

2.

3.

Court Decisions – There are other existing remedies in connection therewith such as an appeal or motion for clarificatory judgment. Where a law or contract has already been contravened prior to the filing of an action for declaratory relief, the court can no longer assume jurisdiction over the action (Tambunting Jr. vs. Sumabat, 470 SCRA 92)

CONVERSION INTO ORDINARY ACTION: a. File a petition for DECLARATORY RELIEF under Rule 63 if there is NO BREACH or VIOLATION of documents before commencement of the action. b. File an ORDINARY CIVIL ACTION if there is already a breach or violation of documents before the commencement of the action. c. If at the commencement of the action, there is no breach or violation of documents, but before the final termination of the case, a breach or violation of the documents would take place, the action for declaratory relief may thereupon be CONVERTED into an ordinary civil action, and the parties shall be allowed to file such pleadings as maybe necessary or proper. (Rule 63, Sec. 6)



Conversion to ordinary action is proper if filing of petition for declaratory relief but before rendition of judgment, a breach or violation of the instrument or statute occurs.

WHERE REFUSAL TO GRANT DECLARATORY RELIEF JUSTIFIED: 1. The decision will not terminate the controversy or uncertainty giving rise to the action; or 2. The declaration is not necessary and proper under the circumstances. Ordinary Action

Declaratory Relief

Writ of execution is available.

No writ of execution.

There is breach or violation of right.

No breach or violation of right.

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purple notes Grounds and manner of dismissal are governed by Rules 16 and 17.

▪

▪ ▪

Additional ground for dismissal: Rule 63, Sec. 5- By motion or motu proprio, court may refuse to declare rights and construe instruments if the decision would not terminate the uncertainty or controversy which gave rise to the action; or if it is not necessary and proper under the circumstances.

The concept of a cause of action as “an act or omission by which a person violates the rights of another” under ordinary civil action does not apply in declaratory relief; there must be NO BREACH OR VIOLATION of the instrument or statute involved. A third-party complaint is improper when the main case is a special civil action for declaratory relief. Compulsory counterclaim based on or arising from the same transaction, deed or contract or which petition is based may be filed and entertained in a Declaratory Relief.

An Action for Reformation is not an action brought to reform a contract but to reform the instrument evidencing the contract. The action for reformation presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties (Art. 1359, Civil Code of the Philippines) A contract does not refer to a deed or an instrument but to a meeting of the minds of the parties. The instrument is to be reformed because despite the meeting of the minds of the parties as to the object and cause of the contract, the instrument which is supposed to embody the agreement of the parties does not reflect their true agreement by reason of mistake, fraud, inequitable conduct or accident. The action is brought so the true intention of the parties may be expressed in the instrument. The concept of Consolidation of Ownership under Art. 1607 of the Civil Code has its origins in substantive provisions of the law on sales.

An Action to Quiet Title is an action brought to remove a cloud on title to real property or any interest therein. The action contemplates a situation where an instrument or a record is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title to real property. This action is then brought to remove a cloud on title to real property or any interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast upon title to real property or any interest therein (Art. 476, Civil Code of the Philippines). The plaintiff need not be in possession of the real property before he may bring the action as long as he can show that he has a legal or an equitable title to the property which is the subject matter of the action (Art. 477, Civil Code of the Philippines).

RULE 64

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA A party aggrieved by the judgment, final order or resolution of the Commission on Elections or Commission on Audit may file a petition for certiorari under Rule 65 with the Supreme Court (Sec. 2, Rule 64, Rules of Court).

The mode of review under Rule 64 is starkly different from the mode applicable to the judgment, final order or resolution of another constitutional body, the Civil Service Commission. The judgment of the Civil Service Commission cannot be assailed by a petition for certiorari to the Supreme Court but by appeal. This appeal shall be taken by filing a verified petition for review to the Court of Appeals (R.A. 7902) in accordance with Rule 43 of the Rules of Court.

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purple notes TIME FOR FILING OF PETITION:  30 DAYS (special period of 30 days as opposed to 60 days provided in Rule 65) from notice of judgment or final order or resolution sought to be reviewed.  If a motion for reconsideration was filed and is subsequently denied, petition must be filed within the remaining period but not less than 5 days in any event reckoned from notice of denial.

interlocutory order of the lower court prior to an appeal from the judgment.

MODE OF REVIEW: As an INDEPENDENT CIVIL ACTION under Rule 65, to be filed exclusively with the S.C..

CERTIORARI - a writ issued by the superior court to the inferior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law.



Filing of petition for certiorari does not stay execution of judgment or final order or resolution sought to be reviewed unless the petitioner files for TRO and Preliminary Injunction. Rule 64

Rule 65

Time Frame

30 days

60 days

Reckonin g Period

From notice of judgment.

From receipt of denial of Motion for Reconsideration.

Power of the court to hear

Not under concurrent jurisdiction because “exclusive original”.

Under concurrent jurisdiction.

NOTE: Petitions for certiorari, prohibition and mandamus are not available under the Rules on Summary Procedure (Sec. 19), in a petition for Writ of Amparo (Sec. 19 of the Rule on Writ of Amparo) and in a petition for a writ of habeas data (Sec. 19, Rule on the Writ of Habeas Data).

Writ of Certiorari - is a prerogative writ, never demandable as a matter of right, never issued except in the exercise of jurisdiction. Requisites for Certiorari: 1. There must be a controversy; 2. Respondent is exercising judicial or quasi-judicial functions; 3. Respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion; and 4. There must be no appeal or other plain, speedy and adequate remedy. 

RULE 65

CERTIORARI, PROHIBITION, MANDAMUS A petition for certiorari under Rule 65 is a special civil action. It is not a mode of appeal. It is an original action independent from the principal action which resulted in the rendition of the judgment or order complained of. Certiorari is a remedy for the correction of errors of jurisdiction, not errors of judgment. It is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. More importantly, since the issue is jurisdiction, an original action for certiorari may be directed against an

Certiorari lies against an order granting execution pending appeal when the same is founded. The fact that the losing party had also appealed from the judgment does not bar the certiorari proceedings, as the appeal could not be an adequate remedy from such premature condition (Manocop, et al.vs. Equitable PCIB, et al., G.R. No. 162814-17, August 25, 2005).

PROHIBITION—is a legal remedy, provided by common law, available only when the usual and ordinary proceedings at law or in equity are inadequate to afford redress, prerogative in character to the extent that it is not always demandable of right, to prevent courts or other tribunals, officers or persons, from usurping or exercising a jurisdiction with which they have not been vested by law.  Prohibition may issue enjoining the judge of court of improper venue from taking cognizance of the case (Feria Noche. Civil

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purple notes Procedure Annotated, Volume 2. Page 482).

2001 Edition.

Distinction between Mandamus and Injunction Mandamus

MANDAMUS a command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. Requisites of Mandamus: 1. There must be a clear legal right or duty; 2. The act to be performed must be PRACTICAL – within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else its essence will be defeated; 3. The respondent must be exercising a MINISTERIAL DUTY – a duty which is absolute and imperative and involves merely its execution; 4. The duty or act to be performed must be EXISTING – a correlative right will be denied if not performed by the respondents; and 5. No appeal or other plain, speedy and adequate remedy in the ordinary course of law. Preliminary Injunction must be sought. Instances where There is No Appeal: 1. Law does not provide for an appeal: a. Not appealable b. No provision for an appeal e.g., Labor Code c. Interlocutory order 2. The right to appeal having been lost with or without the appellant’s negligence Purpose of Mandamus: To compel the performance, when refused, of a ministerial duty, this being its main objective. It does not require anyone to fulfill a contractual obligation or to compel a course of conduct, nor to control or review the exercise of discretion.

Injunction

Remedial

Preventive

Redress of past grievance.

Prevent future injury.

Active remedy; change state of affairs.

Conservative remedy; preserve status quo.

Mandamus not Resorted to Compel a Discretionary Duty: Mandamus is applicable only to a ministerial duty. HOWEVER, it can be used to the extent of requiring the performance of a discretionary duty to act but not to require performance of such duty in a particular manner. An original action for certiorari, prohibition, mandamus is an INDEPENDENT CIVIL ACTION and as such, it: a. Does not interrupt the course of the principal action; b. Does not affect the running of the period of the reglementary periods involved in the proceedings; c. Does not stay the execution of the judgment, unless a temporary restraining order or writ of preliminary injunction has been issued. EXHAUSTION OF ADMINISTRATIVE REMEDIES General Rule: Mandamus will not be issued when administrative remedies are available. Exceptions:

a. If party is in estoppel; and b. Pure questions of law are raised Jurisdictional Issue. A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected by appeal. (Microsoft vs. Best Deal, G.R. No. 148029, 24 Sept. 2002).

Grave Abuse of Discretion When the act was performed in capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction

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

The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. Court of Appeals can Award Damages in Mandamus Proceedings (Vital-Gozon vs. CA, 212 SCRA 235)







A writ of certiorari cannot be issued by an RTC against administrative agency exercising quasi-judicial functions since the latter is of the same rank as the RTC. A writ of prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi-judicial function. SANDIGANBAYAN may likewise issue writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction.

“In Aid of its Appellate Jurisdiction” – there exists a right to appeal the judgment on the merits.

NO PLAIN, SPEEDY AND ADEQUATE REMEDY General Rule: A motion for reconsideration is an essential precondition for the filing of a petition for certiorari, prohibition, mandamus before invoking the jurisdiction of higher courts. Exception:

1. Where the order is a patent nullity, as where the court a quo has no jurisdiction; 2. When the questions raised in the certiorari proceeding, have been duly raised and passed by the lower court, or are the same as those raised and passed upon in the lower court; 3. Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or of the petitioner; 4. Where the subject matter of the action is perishable; 5. Where under the circumstances, a motion for reconsideration would be useless; 6. Where petitioner was deprived of due process and there is extreme urgency for relief; 7. Where in a criminal case, relief from order of arrest is urgent and the granting

of such relief by the trial court is improbable; 8. Where the proceedings in the lower court are a nullity for lack of due process; 9. Where the proceedings was ex parte or in which the petitioner had no opportunity to object; and 10. Where the issue raised is one purely of law or where public interest is involved. Effect of Filing of Motion Reconsideration: If a motion for reconsideration is filed, period shall not only be interrupted another 60 days shall be given to petitioner within which to file appropriate petition for certiorari prohibition with the superior court.

for the but the the or (SC

Administrative Circular 02-03)

REMEDIES OF APPEAL AND CERTIORARI ARE EXCLUSIVE General Rule: Where the proper remedy is appeal, the action for certiorari will not be entertained. Certiorari is not a remedy for error of judgment. Error of judgment are correctible by appeal, error of jurisdiction are reviewable by certiorari. The original action for certiorari is not a substitute for appeal, especially when the remedy of appeal was lost through the fault of the party. Exception: Even when appeal is available,

a writ of certiorari may be allowed: 1. When appeal does not constitute a speedy and adequate remedy; 2. When orders were issued whether in excess of or without jurisdiction; 3. For certain special considerations such as for public policy or public welfare; 4. When the order is a patent nullity; 5. When the decision in the certiorari case will avoid future litigation. Material Dates Rule Dates that must be contained in the petition: 1. Date of receipt of the copy of the assailed decision, order or resolution. 2. Date when Motion for Reconsideration or Motion for New Trial was filed. 3. Date of receipt of the denial of said Motion.

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purple notes “Adequate Remedy” – A remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of judgment of the lower court complained of in the Certiorari proceeding, but a remedy which will promptly relieve the

petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal (Pioneer Insurance Surety Corp. vs. Hontanosas, 78 SCRA 466)

DISTINCTIONS BETWEEN RULE 45 AND RULE 65 Petition for Review on Certiorari Under Rule 45 (Mode of Appeal)

Petition for Certiorari Under Rule 65 (Original Action)

Basis

Pure questions of law.

Whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.

What it Involves

Involves the review of judgment, award, or final order on the merits.

May be directed against an interlocutory order prior to appeal or where there is no appeal or any other plain, speedy or adequate remedy.

Parties

Petitioner and respondent are original parties to the action and the lower court is not impleaded.

The aggrieved party and the lower court are the parties to the action or against the quasi-judicial agency.

Petition for Review on Certiorari Under Rule 45 (Mode of Appeal) Where to File

Only with the S.C..

Petition for Certiorari Under Rule 65 (Original Action) RTC, Sandiganbayan, C.A. or S.C.. In election cases involving an act or omission of a MTC or a RTC the petition shall be filed exclusively with the COMELEC, in aid of its appellate jurisdiction (A.M. No. 07-7-12-SC, December 27, 2007)

Period for Filing

Must be filed within 15 days from notice of judgment or final order or resolution or of the denial of motion for new trial or reconsideration. S.C. may grant an extension of 30 days.

Must be filed not later than 60 days from notice of judgment/denial of MR. No extension of time to file petition under this rule. (A.M. No. 07-7-12-SC, 27 Dec 2007, amended Sec. 4 of Rule 65 and deleted the provision granting 15 days extension for compelling reasons.)

Effect

It stays the judgment, award, or order.

It does not stay the challenged proceeding unless a writ of preliminary or temporary restraining order shall have been issued.

Filing of a Motion for Reconsideration

Prior filing of a motion for reconsideration is not required.

A motion for reconsideration is, generally, a condition precedent.

Jurisdiction of the SC

Appellate jurisdiction from the C.A., Sandiganbayan, CTA, RTC and other courts.

Concurrent original jurisdiction with the RTC, C.A. and the S.C. and exclusive original jurisdiction of S.C. as to judgment, final order or resolution of COMELEC and COA.

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DISTINCTIONS BETWEEN CERTIORARI, PROHIBITION AND MANDAMUS CERTIORARI Grounds

Respondent

1. Neglects the performance of an act 2. Excludes another from use and enjoyment of right or office

1. Tribunal; 2. Board; 3. Officer.

1. 2. 3. 4. 5. 1. 2. 3.

1. Tribunal; 2. Board; 3. Officer; 4. Corporation; 5. Person. 1. Judicial 2. Quasi-judicial 3. Ministerial duty No appeal or plain, speedy or adequate remedy.  Original copy of judgment, certification of non-forum-shopping  Payment of docket fees

1. Judicial 2. Quasi-judicial

Condition

No appeal or plain, speedy or adequate remedy.  Original copy of judgment, certification of non-forum-shopping  Payment of docket fees Corrective – To correct usurpation of jurisdiction.

Nature of the Remedy

MANDAMUS

1. Without jurisdiction; 2. Excess of jurisdiction; 3. Grave abuse of jurisdiction.

Function

Requirement

PROHIBITION

1. Without jurisdiction; 2. Excess of jurisdiction; 3. Grave abuse of jurisdiction.

Tribunal; Board; Officer; Corporation; Person. Judicial Quasi-judicial Ministerial duty

No appeal or plain, speedy or adequate remedy.  Original copy of judgment, certification of non-forum-shopping  Payment of docket fees Preventive and negative – To restrain or prevent usurpation of jurisdiction.

Affirmative or Positive (If the performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office)

CERTIORARI Relief (prayer)

1. Annulment or 2. Modification of judgment or order 3. Equitable relief

PROHIBITION 1. Desistance 2. Equitable relief

MANDAMUS 1. To do the act required to be done to protect the rights of the petitioner 2. To pay the damages sustained by the petitioner by reason of the wrongful acts of the respondents.

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RULE 66

QUO WARRANTO QUO WARRANTO literally means “by what authority” and is a proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or exercising such office, position, or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position, office or franchise. Under the Rules of Court, it is a special civil action commenced by a verified petition against the following: a) A person who usurps a public office, position or franchise; b) A public officer who performs an act constituting forfeiture of a public office; or c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so. GROUNDS FOR QUO WARRANTO PROCEEDING (Sec. 1, Rule 66) An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office; position or franchise; 2. A public officer who does or suffers an act which, by the provision of law constitutes a ground for forfeiture of his office; and 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. Requirements in Filing Quo Warranto: 1. Legal basis, that is entitlement to the office; 2. Must have claim to the office.  

Jurisdiction is with the RTC, CA or SC. Venue is provided for by law: Where the respondent or any of the respondents reside

  

If action was initiated by the OSG, venue is the City of Manila. The court has the discretion to reduce the period for filing of the pleadings. Actions of quo warranto against corporations with regard to franchises and rights granted to them as well as their dissolution, covered under the former Rule 66 now fall under the jurisdiction of SEC and are governed by its rules. However, cases involving intracorporate disputes and elections of directors and officers likewise covered under the former Rule 66, have now been transferred to the jurisdiction of the RTC. (Securities Regulation Code, Sec 5.2).

Quo Warranto

Mandamus

Designed to try the right or title to the office, the right to the office itself is disputed.

Applicable only in cases where the right to the office is NOT in dispute.

Action is directed to the usurper or the one who holds office in question

Against the person who cause the usurpation

Classification of Quo Warranto Proceeding:

1. Mandatory – brought by the Solicitor General or a public prosecutor, when: a. Directed by the President; or b. Upon the complaint or when he has reason to believe that the cases for quo warranto can be established by proof. 2. Discretionary- brought by the Solicitor General or a public prosecutor at the request or upon the relation of another person provided there must be: a. With Leave of court; b. Indemnity bond must be filed. Relator – is a person at whose request and upon whose relation the Solicitor General or public prosecutor brings an action for quo warranto with the permission of the court under Secs. 3 and 4. Quo Warranto In Electoral Proceeding vs. Quo Warranto Under Rule 66 Quo Warranto in Electoral Proceedings

Quo Warranto (Rule 66)

To contest the right of an elected public

Prerogative writ which can be brought by the

officer to hold public office.

Solicitor General or any person who claims better title to the position, public office or franchise being usurped, intruded into or unlawfully held.

An electoral proceeding under the Omnibus Elections Code for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office, or disloyalty to Republic.

Three grounds: a. Usurpation b. Forfeiture c. Illegal association

Petition must be filed within 10 days after the proclamation of the candidate.

Presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose

May be filed by any registered voter for the same office and, who, even if the petition prospers, would not be entitled to that office.

The petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

Actual or compensatory damages are recoverable in quo warranto under the Omnibus Election Code.

Person adjudged entitled to the office may also bring an action (separate) against the respondent to recover damages.

Periods For Filing Quo Warranto Proceeding And Action For Damages Arising Therein: Quo Warranto must be filed within ONE YEAR from the cause of such ouster, or the unlawful exclusion of the rightful claimant from the office; or within one year when the right of the petitioner to hold such office or position arose EXCEPT when there was continued assurance from the government, through its responsible officers that lead the petitioners to bide his time and wait for the fulfillment of its commitment.

As for the damages, it must be filed within 1 year from date of entry of judgment establishing the right under the Quo Warranto proceeding. The periods within which the quo warranto action should be brought are conditions precedent to the existence of a cause of action. 

The one-year period is not interrupted by the prosecution of any administrative remedy. As in quo warranto proceeding, no one is compelled to resort to administrative remedies since public interest requires that the right to public office should be determined as speedily as possible. (Palma-Fernandez vs. Dela Paz, 160 SCRA 751)

RULE 67

EXPROPRIATION EMINENT DOMAIN is the right of the State to acquire private property for public use upon the payment of just compensation. EXPROPRIATION is the procedure to be observed in the exercise of the right of eminent domain. What Cannot be Expropriated: 1. Money; and 2. Choses in action Who Has The Power To Expropriate 1. State by its inherent power 2. Government’s instrumentalities. GOCC, Other agency as duly authorized by law. Requirements In Filing The Complaint: 1. The complaint must be verified. 2. The defendant can only file an answer instead of a motion to dismiss. 3. The complaint shall join as defendants all persons owning or claiming to own, or occupying, any part of the land expropriated. If a known owner is not joined as defendant, he is entitled to intervene in the proceedings or if he is joined but not served with the process and the proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for damages.

Who may file?  State, gov’t instrumentalities, GOCC, other agency as long as duly authorized by law. Requisites for Authorizing Immediate Entry: 1. Filing of the complaint for expropriation sufficient in form and substance; 2. Deposit of the amount equivalent to 1/5 of the fair market value of the property to be expropriated based on its current tax declaration (City of Iloilo vs. Legaspi,444 SCRA 269). 

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

Deposit of amount equal to assessed value of property with an authorized government depositary gives plaintiff the right to take possession on or after due notice to defendant. Deposit shall be in money; unless court authorizes a certificate of deposit by a government bank. If personal property, its value shall be provisionally ascertained and amount to be deposited shall be fixed by the court.

Purpose of Preliminary Deposit

for damages if court finds plaintiff has no right to expropriate. Advance payment for just compensation. (Visayan Refining Co. vs. Camus, 40 Phil 550)

Defenses and Objections (Sec. 3, Rule 67) 

If the defendant has no objection or defense to the action or taking of his property, he may file and serve a notice of appearance and a manifestation to that effect.



If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons.



No counterclaim, cross claim or third party complaint shall be alleged or allowed in the answer or any subsequent pleading.

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A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than 10 days from the filing thereof.

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ORDER OF EXPROPRIATION  An order declaring that the plaintiff has lawful right to take the property upon the payment of just compensation. (Sec. 4, Rule 67)

Instances When The Court May Issue An Order Of Expropriation: 1. Objections to and defenses against the right of the plaintiff to expropriate the property are overruled; 2. When no party appears to defend, as required by this Rule. 



(Sec. 2,

Rule 67) 1. Provide 2.

Defendant Cannot Be Declared In Default Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation.

Taking occurs not only when the government actually deprives the owner of the property, but also when there is a practical destruction or material impairment of the value of the property.

After the rendition of such order, the plaintiff shall not permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. The final order of expropriation may be appealed within 30 days from notice, but shall not prevent the court from determining just compensation.

Ascertainment of Compensation The court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain just compensation. 

Objections to the appointment of commissioner shall be filed within 10 from service, and shall be resolved 30 after all the commissioners shall received copies of the objections.



The appointment of commissioners is mandatory and cannot be dispensed with.

any days days have

Report by Commissioners and Objection Therefrom All interested parties are allowed within 10 days upon being served copies of the commissioners’ report to file objections to the same Uncertain

Ownership and Conflicting Claims If there are conflicting claims on the property or uncertainty with respect to its ownership, the ownership shall be determined by the court, the court may order any sum awarded to be deposited with the court.

The court shall award any sum representing just compensation to be deposited with the Clerk of Court for the benefit of the person to be later adjudged as lawful owner of the land or the one entitled to the compensation in the case. There is no need for an independent action since the person entitled thereto will be adjudged in the same proceeding (Sec. 9, Rule 67). Rights of Plaintiff After Judgment and Payment 1. To enter the property expropriated and appropriate it for public use; or 2. Retain it should immediate possession under Sec. 2 has been exercised. When is Title Vested in Expropriation 1. For personal property - Upon payment of just compensation. 2. For real property - Upon payment of just compensation AND registration. Plaintiff May Enter Into Possession of The Property: 1. Upon the filing of the complaint, serving notice to the defendant and after depositing an amount equal to value of the property for taxation purposes with authorized government depositary. 2. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff. Stages In Expropriation: 1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved, and 2. Determination of just determination. JUST COMPENSATION is determined as of the date of the taking of the property OR the filing of the complaint whichever came first (BPI vs. CA 441 SCRA 269).

Formula to Determine Compensation JC = Just Compensation FMV = Fair Market Value CD = Consequential Damages CB = Consequential Benefits

Just

FMV + CD – CB = JC If CB > CD then, JC = FMV Effect of Reversal of the Order of Expropriation: The owner shall repossess

the property with the right to be indemnified for all damages sustained due to the taking. Effect of Judgment: Vests upon the plaintiff the title to the real estate for public use or purpose. Multiple Appeals Order of expropriation may be appealed by the defendant by record on appeal. This is an instance when multiple appeals are allowed because they have separate and/or several judgments on different issues (such as issue on the right to expropriate and issue of just compensation)  An appeal does not delay the right of the

plaintiff to enter upon the property of the defendant and appropriate the same for public use.

“Republic Act No. 8974 otherwise known as “An Act to Facilitate the Acquisition of Right of Way, Site or Location for National Government Infrastructure Projects and for Other Purposes” and its Implementing Rules and Regulations had modified Sec. 2 of Rule 67 in many respects. While Rule 67 merely requires the Government to deposit with an authorized government depositary the assessed value of the property for expropriation for it to be entitled to a writ of possession, R.A. No. 8974 requires that the government make a direct payment to the property owner before the writ may issue. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property seized. R.A. No. 8974, which provides for a procedure eminently more favorable to the property owner than Rule 67, inescapably applies in instances when the national government expropriates property “for national government infrastructure projects.” Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to

apply. The intent of R.A. 8974 to supersede the system of deposit under Rule 67 with the scheme of “immediate payment” in cases involving national government infrastructure projects is indeed very clear (Republic vs Gingoyon, G.R. No. 166429, December 19, 2005)

RULE 68

FORECLOSURE OF REAL ESTATE MORTGAGE Foreclosure may extrajudicial:

either

be

judicial

or

Extra-judicial foreclosure is the mode to be used if there is a special power inserted in or attached to the real estate mortgage contract allowing an extra-judicial foreclosure sale (Sec. 1, Act No. 3135 as amended) Where there is no such special power, the foreclosure shall be done judicially following the procedure set under Rule 68. When there is no such authority under a special power of attorney, the foreclosure must be made judicially.

Requires court intervention. There is only an equity of redemption.

2. Necessary Parties All persons having claims or claiming an interest subordinate to the holder of the mortgage, e.g. second mortgagee, subsequent attaching creditor, and purchaser of the mortgaged property. NATURE and PURPOSE:

a) Judicial foreclosure is done pursuant to Rule 68 of the Rules of Court; and b) Extra-judicial foreclosure is effected pursuant to Act No. 3135 as amended by Act No. 4118

Judicial Foreclosure

d. Executor or administrator of the deceased owner; e. Heir/s of the deceased owner of the property.

Extrajudicial Foreclosure No court intervention necessary. Right of redemption exists.

PARTIES TO A JUDICIAL FORECLOSURE 1. Mortgagee; 2. Mortgagor; 3. Successors in interest; 4. Junior encumbrancer/s Parties Defendant: 1. Indispensable Parties a. Mortgage debtor b. Owner of property, if not debtor; c. Executor or administrator of deceased mortgagor;

The remedy used for the satisfaction of any monetary obligation, which a person owes to another, by proceeding against a property used to secure said obligation. Its purpose is to cut off the rights of the owner of the property mortgaged used to secure the obligation and all rights acquired subsequent to said right.

CONTENTS OF COMPLAINT (Sec. 1, Rule 68) 1. Date and due execution of the mortgage; 2. Its assignments, if any; 3. Names and residences of the mortgagor and mortgagee; 4. Description of mortgaged property; 5. Statement of the date of the note or other documentary evidence of the obligation secured by the mortgage; 6. Amount claimed to be unpaid thereon; 7. 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. Effect If the Junior Encumbrancer Is Not Impleaded His equity or right of redemption is NOT affected or barred by the judgment of the court because he is a mere necessary party not an indispensable party (Sunlife Insurance vs. Diez, G.R. No. 29027, October 25, 1928) 

The remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time.

Judgment on the Foreclosure For Payment or Sale (Sec. 2, Rule 68) 1. Ascertain the amount due to the plaintiff upon the mortgage debt or obligation,

including interest and other charges as approved by the court and the costs; 2. Render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee: a.

b.

Within a period of not less than 90 days and not more than 120 days and not more than 120 days from entry of judgment; In default of such payment, such property shall be sold at public auction to satisfy the judgment

Effect of Failure by the Defendant to Pay the Amount of Judgment 1. Court shall order the property to be sold. 2. Sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof. 3. When confirmed by an order of the court or upon motion, the sale shall operate to: a. Divest the rights in the property of all parties to the action; and b. Vest their rights in the purchaser, subject to such right of redemption. (Sec. 3, Rule 68)

General Rule: The purchaser at the auction

sale or last redemptioner shall be entitled to the possession of property: 1.Upon the finality of the order of confirmation; 2.Upon the expiration of the period of redemption when allowed by law. When a third party is actually holding the same adversely to the judgment obligor. Exception:

Remedy: Secure a writ of possession, upon

motion, from the court which ordered the foreclosure. RULE 39 (Execution of Judgments) No need to confirm sale.

RULE 68 (Foreclosure of Real Estate) There is a need to confirm sale.

Mortgagor does not have the right to a notice of sale after failure to pay debt because: 1. Said notice is not litigable; and 2. Issuance is ministerial.

However, the mortgagor is entitled to a notice of hearing of the confirmation of the sale. Otherwise, the order is void. Due process requires that said notice be given so that the mortgagor: 1. Can resist the motion; and 2. Be informed that his right to redeem is cut off (Tiglao vs. Botones, GR No. L-3619 October 29, 1951)

Note: Order of confirmation is appealable.

REMEDY if Mortgagor Refuses to Vacate the Property: file ex parte motion for writ of possession. 

The issuance of a writ of possession in a foreclosure proceeding is not an execution of judgment within the purview of Section 6, Rule 39 of the Rules of Court but is merely a ministerial and complementary duty of the court to put an end to the litigation which the court can undertake even after the lapse of five years, provided the statute of limitations and the rights of third person have not intervened in the meantime.

DEFICIENCY JUDGMENT – judgment rendered by the court holding defendant liable for any unpaid balance due to the mortgagee, if the proceeds the foreclosure sale does not satisfy entire debt. 

In case of deficiency judgment where the property was sold less than the amount of the loan, deficiency may be recovered by filing a motion pursuant to Rule 39.



Judgment of Foreclosure: Action Quasi in Rem Deficiency Judgment: Action in Personam



Instances Where Court Cannot Render Deficiency Judgment a. Recto Law (Art. 1484 of the NCC) b. Non-resident mortgagor unless there is attachment c. When mortgagor dies, the mortgagee must file his claim with the probate court (Sec. 7 Rule 86). d.

Mortgagor is a third person but not solidarily liable with the debtor.

When Title Acquired: The buyer acquires title upon finality of the confirmation of sale. If The Property Is Redeemed:

Deed of redemption shall be registered with the registry of deeds. 



The certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. No such right of redemption exist in case of judicial foreclosure of mortgage if the mortgagee is not a bank or banking institution (Rosales vs. Suba 408 SCRA 664). Equity of Redemption

Right of Redemption

Right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt within 90-120 days after the entry of judgment or even after the foreclosure sale but prior to confirmation.

Right of the debtor, his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having a lien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property within 1 year from the registration of the Sheriff’s certificate of foreclosure sale.

Governed by Rule 68.

Governed by Secs. 2931 of Rule 39.

General Rule: There is no right of redemption

in a judicial foreclosure of mortgage under Rule 68. Exception: Mortgagee is a financial institution (juridical person) (Government Insurance System vs. The CFI of Iloilo, 185 SCRA 19)

 In extrajudicial foreclosure, there is always a right of redemption within one year from the date of sale (Sec. 6, Act No. 3135) but interpreted by the court to mean one year from registration of the sale (Reyes vs. Tolentino, L-29142, November 29, 1971).  This period of redemption in extrajudicial foreclosure is shortened by the General banking Act of 2000 (Sec. 47, 2nd paragraph) when the mortgagor is a juridical person. The period of redemption is “until but not after” the registration of the certificate of sale with the register of Deed,” “which in no case shall be more than three months after foreclosure, whichever is earlier. Since the law mandates that the registration should be effected not more than 3 months after the foreclosure, the redemption cannot be made after the lapse of three months from the foreclosure of the mortgaged property.

In judicial foreclosures there is only an equity of redemption which can be exercised prior to the confirmation of the foreclosure sale. This means that after foreclosure sale but before its confirmation, the mortgagor may exercise his right to pay the proceeds of the sale and prevent the confirmation of the sale. This is the well recognized general rule. This rule however, has an exception. There is a right of redemption if the foreclosure is in favor of banks as mortgagees. The right of redemption is explicitly provided in Sec. 47, par. 1, of the General Banking Law of 2000. Where, after extrajudicial foreclosure of a real estate mortgage, the mortgagee purchased the same at the foreclosure sale, he shall be entitled to a writ of possession despite the fact that the premises are in the possession of a lessee whose lease had not yet terminated, unless the lease had been previously registered in the Registry of Property or the mortgagee had prior actual knowledge of the existence of the lease. Under Sec. 7 of Act 3135, as amended, the petition for such writ of possession shall be made under oath and filed as an ex parte motion in the registration or cadastral proceedings of the property (Ibasco vs. Caguioa, G.R. No. 62619, August 19, 1986).

RULE 69

PARTITION PARTITION is the process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. Partition presupposes the existence of coownership over a property between two or more persons. The rule allowing partition originates from a well known principle embodied in the Civil Code of the Philippines that no co-owner shall be obliged to remain in the co-ownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494, Civil Code of the Philippines) PARTITION MAY BE: 1. Judicial or 2. Extrajudicial.

portion of the estate assigned to each party.

NON-INCLUSION OF A CO-OWNER 1. Before Judgment – not a ground for motion to dismiss; remedy is to file a motion to include the party. 2. After Judgment – judgment is void because co-owners are indispensable parties. WHEN PARTITION CAN BE MADE General Rule: Anytime and the right to demand partition is imprescriptible. Exception: If a co-owner asserts adverse title to the property in which case the period of prescription runs from such time of assertion of the adverse title. Nature

of

Partition: The partition of property may be made voluntarily (by agreement) or compulsorily under the Rules.

STAGES OF PARTITION: 1. Existence of co-ownership. 2. Order of partition proper accounting)

(includes

CONTENTS OF COMPLAINT: 1. The nature and extent of his title; 2. Adequate description of real estate of which partition is demanded; 3. Join as party defendants all other persons interested in the property. ORDER OF PARTITION 

 

Issued after trial when the court finds the plaintiff has the right thereto. If the parties are able to agree, make the partition among themselves by proper instruments of conveyance: (1) confirmed by the court and (2) recorded in the registry of deeds. May be appealed by aggrieved party If parties are unable to agree the court shall appoint not more than 3 commissioners to make the partition. Judgment If actual partition of property is made.

The judgment shall state the fact of such payment and the assignment of the real estate to the party making the payment.

To vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action.

If the property is sold and the sale is confirmed by the court.

The judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser.

To vest the real estate in the purchaser or purchasers making the payment/s, free from the claims of any of the parties to the action.

Note: A case for partition and an action for

Mode of Appeal: Record on Appeal



If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court.

Contents of Judgment

Effect of Judgment

The judgment shall state definitely, by metes and bounds and adequate description, the particular

To vest in each party to the act, in severalty the portion of the estate assigned to him.

quieting of title have identical causes of action and can therefore be the subject of res judicata (Heirs of Juana Gaudine vs. CA 427 SCRA 545).

ASSIGNMENT OR SALE OF REAL ESTATE BY COMMISSIONERS General Rule: When the real estate cannot be divided without prejudice to the parties, the court may assign the same to one of the parties upon payment to the other party an amount as the commissioners may deem equitable. Exception: When one of the parties asks that the property be sold.  

Parties are allowed 10 days to file objections upon being notified of the assignment. The appointment of Commissioner is mandatory unless there is an extrajudicial partition between the parties.

RULE 70

FORCIBLE ENTRY AND UNLAWFUL DETAINER Forcible entry and unlawful detainer actions are summary in nature designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved. These actions both fall under the coverage of the Rules on Summary Procedure irrespective of the amount of damages or unpaid rentals

sought to be recovered (Sec. 3, Rule 70, Rules of Court). Forcible entry and unlawful detainer actions are actions affecting possession of real property hence, are real actions. The venue of these actions therefore, is the place where the property subject of the action is situated (Sec. 1, Rule 4, Rules of Court). Forcible Entry

Unlawful Detainer

For being a Possessor (Defendant)

Illegal from the beginning.

Legal at beginning.

Prior Possession (Plaintiff)

Required

Not required

Demand

Not Necessary

Necessary

Prescriptio n

One year from actual entry.

One year from the LAST demand.

Possession

By force, intimidation, threats, stealth and strategy.

By contract or tolerance.

Accion Interdictal

Accion Publiciana

Summary action for recovery of physical possession where dispossession has not lasted for more than one year. Ejectment proceeding under Rule 70; either FE or UD

A plenary action for the recovery of the real right of possession when the dispossession has lasted for more than one year.

An action for the recovery of ownership which necessarily includes the recovery of possession.

All cases of forcible entry and unlawful detainer irrespective or the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.

RTC has jurisdiction if the value of the property exceeds P20,000 outside Metro Mla. P50,000 within Metro Mla. MTC has jurisdiction if value of the property does not exceed the above amt.

RTC has jurisdiction if value of the property exceeds P20,000 outside Metro Mla. P50,00 within Metro Mla. MTC has jurisdiction if the value of property does not exceed above amounts.

Who May Institute Proceedings 

Forcible Entry A person deprived of possession of any land or building by force, intimidation, threat, strategy or stealth.

Unlawful Detainer 1.

Lessor, vendor. Vendee or other person against whom possession of any land or building is unlawfully withheld; 2. Legal representatives or assigns of any such lessor, vendor, vendee, or other person against whom possession of any land or building is unlawfully withheld.

Actions for Recovery of Possession

Accion Reinvindicatoria

While it is true that the only issue in forcible entry or unlawful detainer action is the physical possession or possession de facto – not possession de jure, yet the court may go beyond that if only to prove the nature of possession. The court may receive evidence upon the question of title solely for the purpose of determining the character and extent of possession and damages for the detention (Consing vs. Jamandre, 64 SCRA 1)

In forcible entry, a demand to vacate is not required before the filing of the action because the occupancy is illegal from the very beginning. In unlawful detainer, demand to vacate is necessary as a rule. Demand however shall not be required when: a) There is a stipulation dispensing with a demand (Art. 1169, Civil Code of the Philippines); or b) When the ground for the suit is based on the expiration of the lease because when the lease expires the cause of action for unlawful detainer

immediately arises. The lessor can now file an action for ejectment. As a rule, demand is required only when the ground for ejectment is failure to pay rent or to comply with the condition of the lease. Demand to vacate is, however, required when the lease is on a month-to-month basis to terminate the lease upon the expiration of the month in order to prevent the application of the rule of tacita reconduction or implied new lease.

are not made, execution may be obtained upon proper motion with notice despite the posting of a supersedeas bond because said bond covers only back rentals declared in the judgment of the MTC. The bond does not answer for rentals that accrue during the appeal process. The supersedeas bond shall be equivalent to the unpaid rentals, damages and costs which accrued down to the time of judgment. In other words, the superseadeas bond covers the monetary judgment of the lower court. If the judgment does not make any pronouncement as to the pecuniary liability of the defendant, the bond should not be required. Attorney’s fees are not covered by a superseadeas bond.



The acceptance of rentals in arrears does not constitute WAIVER of default in payment of rentals (Clutario vs. CA, GR No. 70481 December 11, 1992)



The term VACATE need not be stated if there are other terms definitively implying that the tenant should vacate (Golden Gate Realty Corp. vs. CA)





However, in La Campana vs. CA, the court ruled that the rule in Golden Gate will not apply if the term of the demand is ambiguous in nature.



DEMAND MAY BE MADE: 1. Personally; 2. By posting it at the premises if no person is found thereon (Viray vs. CA, G.R. No. 12076,. February 24, 1998); 3. 4.

Substituted service; Registered mail (Co

Keng Kian vs. CA, G.R. No. 75676, August 29, 1990).

General Rule:

Judgment of the MTC against the defendant in ejectment proceedings is IMMEDIATELY EXECUTORY. Exception: STAY of judgment when the following concur: 1. The defendant perfected his appeal; 2. He files sufficient supersedeas bond; and 3. He deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period. The periodic deposits are designed to cover all rentals from the judgment of the MTC until the final judgment of the appellate court. Thus, even if an appeal has been perfected but the required periodic deposits

Preliminary prohibitory and mandatory injunction may be granted in forcible entry and unlawful detainer cases (Secs. 15 and 20, Rule 70).

Summary procedure will apply only in the proceedings in the inferior court. Once it is appealed to the RTC, rules in Summary Procedure no longer apply.

Preliminary prohibitory injunction - to prevent the defendant from committing further acts of dispossession against the plaintiff. Preliminary mandatory injunction - to restore possession to plaintiff.



Reference to Barangay Conciliation is not required if plaintiff avails the provisional remedies.



The existence of a formal contract is NOT necessary in unlawful detainer. Even if there is no formal contract between the parties there can still be an unlawful detainer because implied contracts are covered by ejectment proceedings. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner. (Peran vs. CFI of Sorsogon, G.R. No. L-57259, October 13, 1983)

Questions to Be Resolved in an Action for Forcible Entry: First: Who had actual possession over the piece of real property? Was the possessor ousted therefrom within one year from the filing of the complaint by force, intimidation, threat, strategy or stealth? Second:

Third: Does the plaintiff ask for restoration of

Purpose And Nature Of Power

possession?

The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and mandates of the courts, and consequently, to the due administration of justice.

(Dizon vs. Concina, G.R. No. L-23756. December 27, 1969)

Rule: Only issues regarding possession should be resolved in an ejectment case. Exception: Question of ownership is necessary for a proper and complete adjudication of the issue of possession General

(Refugia vs. CA).

General Rule: Third persons are bound by a

judgment in an ejectment case, provided his possession can be traced from the title of the defendant, e.g. sublessee. Exceptions:

1. If the property was acquired before the action; 2. If the property is covered by a Torrens Title and the certificate does not state that the property is subject to a pending action and he bought the same in good faith. JUDGMENT The court can award damages in ejectment cases PROVIDED the damages refer only to: 1. The fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of possession; 2. Arrears; 3. Liquidated damages since they are already part of the contract. Immediate Execution on Appeal to Court of Appeals or S.C.. The judgment of the RTC against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. (Sec. 1, Rule 70)

RULE 71

CONTEMPT CONTEMPT OF COURT is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation (Halili vs. CIR, 136 SCRA 112).

The exercise of the power to punish for contempt has dual aspect, primarily, the proper punishment of guilty party for his disrespect to the courts; and secondarily, his compulsory performance of some act or duty required of him by the court and which he refuses to perform.

Direct contempt in general is committed in the presence of or so near the court or judge as to obstruct or interrupt the proceedings, before the same. GROUNDS FOR DIRECT CONTEMPT a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings. b. Disrespect towards the court. c. Offensive personalities towards others. d. Refusal to be sworn or to answer as witness or to subscribe an affidavit or deposition when lawfully required to do so. (Sec. 1, Rule 71) 

A pleading containing derogatory, offensive or malicious statements when submitted before or court or judge in which the proceedings are pending is direct contempt (Dantes vs. Caguioa, 461 SCRA 257).

Indirect contempt is one not committed in the presence of the court. It is an act done at a distance which tends to belittle, degrade, obstruct or embarrass the court and justice. GROUNDS FOR INDIRECT CONTEMPT 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions. 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court. Unauthorized intrusion to any real property after being dispossessed or ejected by judgment. 3. Any abuse of or any unlawful interference with the proceedings of a court not constituting direct contempt. 4. Any improper conduct tending to degrade the administration of justice. 5. Assuming to be an attorney or an officer of the court without authority.

6. 7.

Failure to obey a subpoena duly served. Rescue, or attempted rescue, of a person or property in the custody of an officer.(Sec. 3, Rule 71)

TWO WAYS A PERSON CAN BE CHARGED WITH INDIRECT CONTEMPT: 1. Through a verified petition; and 2. By order or formal charge initiated by the court motu proprio (Landbank vs. Listano

judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a duly forbidden act.  

Sr., 408 SCRA 328).

CLASSES OF CONTEMPT 1. As to Manner of Commission: Direct

Indirect

Summary in nature

Punished only after written charge and/or due hearing.

If committed against: RTC – fine not exceeding P2,000 or imprisonment not exceeding (10) days or both. MTC – fine not exceeding P200 or imprisonment not exceeding (1) day, or both.

If committed against: RTC – fine not exceeding P30,000 or imprisonment not exceeding 6 months or both MTC – fine not exceeding P5,000 or imprisonment not exceeding (1) month or both.

2. As to NATURE: a. Civil Contempt consists in failing to do something ordered to be done by a court or a judge in a civil case for the benefit of the opposing party therein. b. Criminal Contempt is a conduct that is directed against the authority and dignity of a court or of a judge acting

In Yasay vs. Recto; it ruled that all contempt proceedings partake of criminal in nature. As such, rule on double jeopardy applies In special judgments under Rule 39 Section 11, the person required by the judgment to obey the same may be punished for contempt if he disobeys. NO contempt however lies in judgments for money (Sec. 9) and judgments for specific act (Sec. 10) under Rule 39.

Remedies to Judgments:

Challenge

Contempt

Direct Contempt: the person adjudged in direct contempt may avail himself of the remedy of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him (Sec. 2, Rule 71). Indirect Contempt: the person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt. Note: The distinction is only for the purpose of imposable penalty. 

The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond.

JURISDICTION AND VENUE OF SPECIAL CIVIL ACTIONS SPECIAL CIVIL ACTION

Interpleader

JURISDICTION

MTC – where the value of the claim or the personal property does not exceed P200,000 or P400,000 in Metro Manila or where the value of the real property does not exceed P20,000 or P50,000 in Metro Manila. RTC – if the value exceeds the above amounts or if the subject matter is exclusively within the jurisdiction of the RTC (e.g. specific performance, recovery of title)

VENUE

Where the plaintiff or any of the principal plaintiff resides or where the defendant or any of the principal defendants resides at the option of the plaintiff Note: The venue of special civil actions is governed by the general rules on venue, except as otherwise indicated in the particular rule for said special civil action.

Declaratory Relief

RTC

Where the petitioner or the respondent resides

Certiorari, Prohibition, Mandamus

RTC, CA, SC, Sandiganbayan in aid of its appellate jurisdiction

RTC of the place where the respondent court, corporation, officer or person is situated; If petition is filed in the CA, SC or Sandiganbayan, in which case the location of the respondent is immaterial (Sec. 4, Rule 65)

Quo Warranto

RTC, CA, SC

If filed with the SC, or CA, the location of respondent is immaterial or; RTC of place where the respondent resides or where any of the respondents resides; However, if the Solicitor General commences the action, it may be brought in the RTC in Manila

Expropriation

RTC (Incapable of pecuniary estimation) (Barangay San Roque vs. Heirs of Pastor, GR No. 138896, June 20, 2000)

Where the property is located in case the subject is a land. In cases where the subject of expropriation is personal property, venue is the place where the plaintiff or defendant resides

Foreclosure

RTC (Incapable of pecuniary estimation) (Barangay San Roque vs. Heirs of Pastor, GR No. 138896, June 20, 2000)

Where the land or any part thereof is located

Partition

RTC (Incapable of pecuniary estimation)

Where the real property or a portion thereof is located If the subject matter is personal property (sec. 13 Rule 69), in the place where the plaintiff or the defendant resides

Forcible Entry / Unlawful Detainer Contempt

MTC

Where the property is located

MTC, RTC, CA, SC

Where the court involved is sitting

SPECIAL PROCEEDINGS ICAL LAWSPECIAL PROCEEDINGS



SPECIAL PROCEEDINGS – a remedy by which a party seeks to establish a status, a right or a particular fact. (Rule 1, Sec. 3c) No formal pleadings required, unless the statute or the rules so provides.  The remedy is generally granted upon an application or motion. (Hagans vs. 

4. Concurrent Jurisdiction in HC- RTC, CA, SC Applicability of Rules in Civil Actions:  In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Rule

Wislizenus, 42 Phil. 880)

Ordinary Action

Special Proceeding

To protect or enforce a right or prevent or redress a wrong.

Involves the establishment of a right, status or fact.

Involves 2 or more parties.

May involve only 1 party.

Governed by ordinary rules supplemented by special rules.

Governed by special rules supplemented by ordinary rules.

Heard by courts of general jurisdiction.

Heard by courts of limited jurisdiction.

Pleadings are required

Petition or application is sufficient

72, Sec. 2)

SUBJECT MATTER OF SPECIAL PROCEEDINGS: (Rule 72, Sec. 1) 1. Settlement of estate of deceased persons; 2. Escheat; 3. Guardianship and custody of children; 4. Trustees; 5. Adoption; 6. Rescission and revocation of adoption; 7. Hospitalization of insane persons; 8. Habeas corpus; 9. Change of name; 10. Declaration of absence and death; and 11. Cancellation or correction of entries in the Civil Registry. Other Special Proceedings

JURISDICTION OVER SPECIAL PROCEEDINGS: General Rule: Regional Trial Court Exception: MTC/MeTC/MCTC can entertain Special Proceedings: 1. Probate proceedings whether testate or intestate, where the gross value of the estate does not exceed PhP 300,000 or PhP 400,000 in Metro Manila. 2. Delegated Jurisdiction – in Cadastral and Land Registration Cases covering lots where there is no controversy or opposition, or contested lots, where the value of which does not exceed PhP 100,000. 

APPEAL in this instance is taken to the CA, not to the RTC since MTC is equal to RTC when acting as cadastral and land registration cases.

3. Special Jurisdiction – petitions for Writ of Habeas Corpus in case of absence of RTC judges.

1. Liquidation proceedings; 2. Corporate rehabilitation; 3. Recognition and enforcement of arbitration proceedings; 4. Vacation, setting aside, correction or modification of an arbitral award; 5. Any application with a court for arbitration assistance and supervision. 

A petition for liquidation of an insolvent corporation should be classified as a special proceeding and not an ordinary action. (Pacific Banking Corp. vs. CA, 242 SCRA 492)



A petition for rehabilitation, which is a remedial action provided for in the Interim Rules of Procedure on Corporate Recovery [A.M. No. 00-8-10-SC] is a special proceeding.

Temporary custody of minor children; visitation rights



Now Excluded In Special Proceedings: 1. Constitution of Family Home – now covered by the Family Code; 2. Voluntary Dissolution of Corporations – now covered by the Corporation Code and the SEC Rules. Applicability of Rules of Civil Actions In the absence of special provisions, the rules provided for in ordinaryactions shall be, as far as practicable in special proceedings (Sec. 2, Rule 72).

the settlement of the estate, consisting of the following: 1. Administration of the estate; 2. Liquidation of the estate; and 3. Distribution of the estate. EXCLUSIVE because the court first taking

cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. General Rule: The question of ownership is

an extraneous matter in proceedings. Probate court determine issue of ownership.

probate cannot

Exceptions: 1.

RULE 73

VENUE AND PROCESSES SETTLEMENT OF ESTATE OF DECEASED PERSONS: Purpose: To strive to have the estate settled in a speedy manner so that the benefits derived therefrom may be immediately enjoyed by the heirs and beneficiaries. Modes of Settlement Of Estate: 1. Extrajudicial through:  Affidavit of Adjudication  Extrajudicial Partition 2. Judicial through:  Probate Proceedings  Partition (Rule 69)  Summary Settlement of Estates of Small Value Different Modes of Settlement of Estate of Deceased Persons, As Provided for Under the Rules of Court: 1. Extrajudicial Settlement of Estate (Rule 2. 3. 4. 5.

74, Sec. 1); Partition (Rule 69);

Summary Settlement of Estate of Small Value (Rule 74, Sec. 3); Probate of Will (Rule 75-79); Petition for Letters of Administration in cases of Intestacy (Rule 79).

EXTENT OF JURISDICTION: Probate courts are courts of LIMITED, SPECIAL & EXCLUSIVE jurisdiction. LIMITED AND SPECIAL because it may only determine and rule upon issues relating to

2.

3.

Provisionally, ownership may be determined for the purpose of including property in inventory, without prejudice to its final determination in a separate action; When the parties are all heirs of the decedent and they submit the issue of ownership to the probate court, provided that the rights of 3rd parties are not impaired; and The question is one of collation or advancement. arellano law

PROCEDURE PROCEEDINGS:

IN

SETTLEMENT

Probate of a Will, if any (Rule 75-76)

Issuance of Letters Testamentary / Administration (A Special Administrator may be appointed) (Rule 77-80)

Filing of Claims (Rule 86)

Payment of Claims Sale/Mortgage/Encumbrance of Properties of the Estate

Distribution of Residue, if any (but this can be made even before payment if bond is filed by the heirs)

Nature of Proceedings:  The settlement of the decedent’s estate is a proceeding in rem, and hence binding against the whole world.  All persons having interest in the subject matter involved, whether they were notified or not, are equally bound except in the case of (a) extrajudicial settlement of estate, or (b) summary settlement of estates of small value. Venue: The residence of the decedent at the time of his death is determinative of the proceeding. 1. Resident of the Philippines – venue is exclusively laid in the RTC of the province where he resides at the time of his death. 2. Non-resident of the Philippines – venue lies in the RTC of any province in which he had estate. EXCLUSIONARY RULE:  The court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The rule applies equally to both testate and intestate proceedings. 

Probate court acquires jurisdiction from the moment the petition for settlement is filed with the court. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of estate. (Sandoval vs. Santiago, 88 Phil 784)

Exception: Estoppel by Laches Note: Jurisdiction under Rule 73, Sec. 1 does

not relate to jurisdiction per se but to venue. It is NOT an element of jurisdiction but of procedure, hence, institution in the court where the decedent is neither an inhabitant or has his estate, may be waived (Uriarte vs. CFI, G.R. Nos. L-2138-39, Oct. 29, 1970).

Remedy if the Venue Is Improperly Laid:  Ordinary appeal NOT certiorari or mandamus, unless want of jurisdiction appears on the record of the case. Probate court can not issue writs of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the need of executory processes. General Rule:

Exceptions: 1.

2. 3.



To satisfy the contributive share of the devisees, legatees and heirs when the latter had entered into prior possession over the estate (Rule 88, Sec. 6); To enforce payment of the expenses of partition (Rule 90, Sec. 3); To satisfy the court when a person is cited for examination in probate proceeding (Rule 142, Sec. 13). Under the rule of inclusion unius est exclusion alterius (the inclusion of one is the exclusion of another), these would be the only instances when the probate court can issue a writ of execution (Vda. De Valera, et al. vs. Ofilada, et al., L-27526, September 12, 1974).

Questions That A Probate Court Can Determine: 1. Who are the heirs of the decedent; 2. Recognition of a natural child; 3. Validity of disinheritance effected by the testator; 4. Status of a woman who claims to be the lawful wife of the decedent; 5. Validity of waiver of hereditary rights; 6. Status of each heir; 7. All other matters incidental or collateral to the settlement and distribution of the estate. Presumption of Death There is no need for an independent action for Declaration of Presumptive Death for purposes of Succession (Sec. 4, Rule 3)

RULE 74

SUMMARY SETTLEMENT OF ESTATE General Rule: If a person dies, his estate is

submitted to a judicial settlement proceeding. Exception: The heirs may resort to: 1. EXTRAJUDICIAL SETTLEMENT of estate; or 2. SUMMARY SETTLEMENT of estate -conducted in accordance with regular procedure not under the Rules of Summary Procedure; 

Executors or administrators need not be appointed.

Requisites for Extrajudicial Settlement By Agreement Between Heirs: A. Substantive Requirements: 1. The decedent left NO WILL and NO DEBTS; and 2. The heirs are all of legal age or the minors are represented by their judicial or legal representatives, duly authorized for the purpose. B. Procedural Requirements: 1. Division of estate must be in a public instrument; 2. Filed with the proper Register of Deeds; 3. Publication of notice of the fact of extrajudicial settlement once a week for 3 consecutive weeks; and 4. A bond equivalent to the value of personal property. Basis To Compel Settlement Of The Estate: 1. Undue deprivation of lawful participation in the estate; 2. Existence of debts against the estate or undue deprivation of lawful participation payable in money. arellano law Note: The bond is required only when personally is involved. If it is a real estate, it shall be subject to a lien in favor of creditors, heirs or other persons for the full period of 2 years from such distribution and such lien cannot be substituted by a bond (Rebong vs.

Public Instrument Not Necessary for The Validity Of An Extrajudicial Settlement: Oral agreement of partition is valid among the heirs who participated in the extrajudicial settlement. The requirement under Rule 74, Sec. 1 that it must be in Public Instrument is not constitutive of the validity but merely evidentiary in nature. (Hernandez vs. Andal, 78 Phil 196) Note: If settlement is in private instrument, it

is believed that the same is valid and reformation of instrument may be compelled (Art. 1359, Civil Code)

Distinctions Between Extrajudicial and Summary Settlement: Extrajudicial Settlement

Summary Settlement

No court intervention

Require summary judicial adjudication

Value of the estate is immaterial

Gross estate must not exceed PhP 10,000.00 in a summary settlement of estate of small value

Allowed only in intestate succession

Allowed in both intestate and testate

No outstanding debts of the estate at the time of settlement

Available even if there are debts; it is the court which will make a provision for its payment

Resorted at the instance and by agreement of all heirs

May be instituted by any interested party or even a creditor of the estate without the consent of all the heirs

Amount of bond is equal to the value of personal property

Bond to be determined by the court

There is a disputable presumption that the decedent left no debts if no creditor files a petition for letters of administration within 2 years after the death of decedent.  Real estate is subject to lien in favor of creditors, heirs or other persons for the full period of two years from such distribution and such lien cannot be substituted by a bond (Rebong vs. Ibañez, 

79 PHIL 324).

Ibanez, L-1578, September 30, 1947).

Ways Of Effecting Extrajudicial Partition:

1. Public Instrument – many heirs 2. Affidavit of Adjudication – only 1 heir SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE:  Allowed in testate and intestate succession when the gross value of the estate does not exceed PhP 10,000.00. (B.P. 129)  Summary settlement proceedings may be instituted by any interested party and even by a creditor of the estate without the consent of all the heirs. Important Requirements: 1. Application must contain allegation of gross value of estate; 2. Date of hearing: a. Shall be set by court not less than 1 MONTH nor more than 3 MONTHS from date of last publication of notice; b. Order of hearing published, ONCE A WEEK FOR 3 CONSECUTIVE WEEKS in a newspaper of general circulation, 3. Notice shall be served upon such interested persons as the court may direct; 4. Bond – amount fixed by the court(not value of personal property) conditioned upon just claims under Sec. 4. Requisites for a Valid Extrajudicial Settlement: 1. The decedent died intestate; 2. There are no outstanding debts of the estate at the time of the settlement; 3. The heirs are all of age, or the minors are represented by their judicial guardians or legal representatives; 4. The settlement is made in a public instrument, stipulation or affidavit duly filed with the Register of Deeds; and 5. The fact of such extrajudicial settlement must be published in a newspaper of general circulation in the province once a week for three (3) consecutive weeks. 

If there is only 1 heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the Register of Deeds.

Requisites for A Valid Affidavit of Adjudication: 1. There is only 1 heir to the estate; and 2. Adjudication is made in a public instrument, stipulation of affidavit duly filed with the Register of Deeds. Liabilities of Distributees And Estates:  In case an heir or other person has been unlawfully deprived of his lawful participation in the estate, such heir or other person may compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation.  The provision of Rule 74, Sec. 4 barring distributees or heirs from objecting to an extrajudicial partition after the expiration of 2 years from such extrajudicial partition is applicable only: 1. To persons who have participated or taken part or had notice of the extrajudicial partition 2. When the provisions of Rule 74, Sec.1 have been strictly complied with. (Sampilo vs. CA, L-10474, February 28, 1958) Heirs or Creditors Not Parties to the Summary Settlement:  A summary settlement is not likewise binding upon heirs or creditors who were not parties therein or had no knowledge thereof. Said heirs or creditors may vindicate their rights either: 1. Proceeding against the estate or the distributees; or 2. Proceeding against the bond within the 2-year period. Remedies: 1. Within two (2) years – claim against the bond or real estate; 2. Rescission in case of preterition of compulsory heir in partition tainted with bad faith (Art. 1104, NCC) a. Action to annul a deed of extrajudicial settlement on the ground of fraud within 4 years from the discovery of fraud; b. Action for reconveyance based on an implied or constructive trust

brought within 10 years from date of registration of the deed or the issuance of title. (Amerol vs. Bagumbaran, 154 SCRA 396)

Exception: The 10-year prescriptive period

should be reckoned from actual discovery of fraud where the registration was attended with bad faith in securing the certificate of title. Torrens Title does not furnish a shield for fraud. (GSIS vs. Santiago, 414 SCRA 563, Oct. 28, 2003) 

An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith (Marquez vs. CA, GR No. 125715, December 29, 1998).



Where the estate has been summarily settled, the unpaid creditor may, within 2 years, file a motion in court wherein such summary settlement was had, for the payment of his credit.



After the lapse of 2 years, an ordinary action may be instituted against the distributes within the statute of limitations BUT NOT against the bond.



The 2-year lien upon the real property distributed by extrajudicial or summary settlement shall be annotated on the title issued to the distributes and after 2 years, will be cancelled by the register of deeds without need of the court order (LRC Cirular 143).



Such lien cannot be discharged nor the annotation be cancelled withi the 2 year period even if the distributes offer to post a bond to answer for contingent claims from which lien is established (Rebong vs. Ibanez, L-1578, September 30, 1947)

PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON:  If on the date of expiration of 2 years after the distribution of the estate, the person authorized to file a claim is a: (a) minor (b) mentally incapacitated (c) in prison, or (d) outside the Philippines, he may present his claim within 1 year after such disability is removed.

RULE 75

PRODUCTION OF WILL / ALLOWANCE OF WILL NECESSARY PROBATE OF WILL – a special proceeding for establishing the validity of a will. Nature of Imprescriptibility a. IMPRESCRIPTIBLE. Statute of Limitations is NOT APPLICABLE to the probate of wills because probate is intended primarily for the protection of the testator's expressed wishes. B. MANDATORY. The Doctrine of Estoppel DOES NOT APPLY in probate proceedings since the presentation and the probate of a will are required by public policy and they involve public interest. However, a will may be sustained on the basis of Art. 1080 of the Civil Code which states that: “If the testator should make a psrtition of his properties by an act inter vivos , or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heir (Mang-Oy vs. CA, L-27421, September 12, 1986)

c.

IN REM – binding on the whole world; (Exception: Art. 1080, NCC)

d. Imprescriptible – because of the public policy to obey the will of the testator. Matters Which The Probate Court Is Empowered To Determine: 1. Whether or not the instrument offered is the last will and testament of the decedent – a question of identity;

2. Whether or not the will has been executed in accordance with the formalities prescribed by law – a question of validity; 3. Whether or not the testator has testamentary capacity at the time of the execution of a will – a question of capacity. General Rule: Probate court determines only

the extrinsic validity of the will. Exception: THE PRINCIPLE OF “PRACTICAL CONSIDERATIONS”. Where defect is apparent on its face, the probate court may determine the intrinsic validity of the will even before its formal validity is established, as the probate of a will may become a useless ceremony if the will is intrinsically invalid.  Principle applicable only where the intrinsic invalidity of the will is apparent on its face.  Judgment or Decree of Probate is conclusive with respect to the due execution of the will and not subject to collateral attack EXCEPT that of fraud. Testacy over intestacy. Doubts are presumed in favor of testacy. Note:

Custodian of Will – a person who has custody of the will who must deliver the will to the court having jurisdiction or to the executor named in the will within 20 days after he knows of the death of testator. 

Failure to attach original will to petition is not critical where the will itself was adduced in evidence. It is not necessary to attach the original will to petition for probate. (Heirs of the late Jesus Fran vs. Salas, 210 SCRA 303)

Executor To Present Will And To Accept Or Refuse Trust: A person named as executor in a will shall present such will to the court having jurisdiction, within 20 days after he knows of the death of the testator OR within 20 days after he knows that he is named executor if he obtained such knowledge after the death of the testator, UNLESS the will has reached the court, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.

RULE 76

ALLOWANCE OR DISALLOWANCE OF A WILL PROBATE OR ALLOWANCE OF WILLS – the act of proving in court a document purporting to be the last will and testament of a deceased person in order that it may be officially recognized, registered and its provision carried out in so far as they are in accordance with law. Who May Petition for Allowance Of Will: 1. Executor, devisee or legatee named in the will; 2. Any other person interested in the estate; 3. Testator; or 4. Any Creditor. Party To Probate Proceedings: Generally, any person having a direct and material interest in the will or estate can be a party to the probate of proceedings. 



In order that a person may be allowed to intervene in a probate proceeding, he must have an interest in the estate, or in the will, or as a claimant of the estate. An heir who has assigned or renounced his hereditary rights has no legal interest as would authorize him to initiate such proceedings.

Contents of Petition 1. The jurisdictional facts – death of the testator and his residence at the time of the death or the province where estate was left by the decedent who was a non-resident; 2. The names, ages, and residences of the heirs, legatees, and devicees of the testator or decedent; 3. The probable value or character of the property of the state; 4. The name of the person for whom letters are prayed;

5. The name of the person having custody of the will if it has not been delivered to the court. Effect of the Probate of a Will: It is conclusive as to the EXECUTION and the VALIDITY of the will (even against the estate). Thus, a criminal case against the forger may not lie after the will has been probated. arellano law Issue in the Probate of a Will General Rule: A probate court can only determine the intrinsic validity of a will after its extrinsic validity has been established. Exception: Principle of Practical Consideration – As to time, effort, expense plus added anxiety are the practical considerations that induce us to a belief that we might as well meet head-on the issues of the validity of the provisions of the will in question (Nuguid vs. Nuguid. L-23445, June 23, 1965). 

Where the testamentary disposition is void, and apparent on its face (Acain vs. IAC GR No. 72706, October 27, 1987; Nepumuceno vs. CA, L-62952, October 9, 1985).

Extrinsic Validity – refers to the due execution of the will. When Is There Due Execution: 1. Testator was of sound and disposing mind and memory; 2. No duress, fraud and undue influence; 3. Strictly complied with the formalities; 4. The will was genuine and not fraudulent. 5. That the signature of the testator is genuine 





Publication provided for in Sec 3 of Rule 76 is a jurisdictional requirement while the personal service of notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. If testator ask for the allowance of his own will, notice should be sent onl;y to his compulsory heir. Publication is no longer required. Notification by mail must be mailed at least 20 days before the hearing while notification by personal service must be made at least 10 days before the day of hearing.

Note: The purpose of the notice is to bring all interested person within the court's jurisdiction so that the judgment therein becomes binding to the whole world.

PROOF AT HEARING: 1. When the will is not contested: a. Notarial Will – the court may grant allowance thereof on the testimony of 1 of the subscribing witnesses only; b. Holographic Will – at least 1 witness who knows of the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. 2.

When the will is contested: a. Notarial Will – it is the duty of the petitioner to produce all the available attesting witnesses and the notary public, but he is not restricted by the testimony of said witnesses, even if adverse as the court may still admit the will to probate on the basis of other satisfactory evidence; b. Holographic will – it shall be allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator. Expert testimony may be resorted to in the absence of any competent witness if the court deems it necessary.

Facts To Prove To Allow A Lost Or Destroyed Notarial Will: 1. Existence of the will at the time of the death of the testator; 2. Due execution and validity of the will; 3. Fraudulent or accidental destruction of the will in the lifetime of the testator and without his knowledge; and 4. Provisions of said will, to be testified by at least 2 credible witnesses.   

If there is no contest. Otherwise, Section 11. Exception to Rule 130, Sec. 5. Applied only to a notarial will.

Grounds for Disallowing A Will:

1. If not executed and attested as required by law; 2. If the testator was insane, or otherwise mentally incapable to make a will at the time of execution; 3. If it was executed under duress, or the influence of fear, or threats; 4. If it was procured by undue and improper pressure and influence; 5. If signature of testator was procured by fraud or trick and he did not intend that the instrument should be his will at the time of affixing his signature thereto.

1. That the testator was domiciled in a foreign country; 2. That the will has been admitted probate in such country; 3. That the foreign court was, under the laws of said country, a probate court with jurisdiction over the proceedings; 4. The law on probate procedure in said foreign country and proof of compliance therewith; 5. The legal requirements in said foreign country for the valid execution of the will.

General Rule: Holographic will if destroyed



cannot be probated. Exception: If there exists a photostatic or Xerox copy thereof. (Gan vs. Yap, 104 Phil. 509) 

Substantial Compliance Rule: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should be admitted to probate (Art. 809, NCC).Separate wills which conatin essentially the same provisions and pertain to properties which in all probability are conjugal in nature, practical considerations dictate their joint probate (Vda. De Perez vs. Tolete, G.R. No. 76714, June 2, 1994).

RULE 77

ALLOWANCE OF WILL PROVED OUTSIDE OF THE PHILIPPINES & ADMINISTRATION OF ESTATE THEREUNDER REPROBATE  A will allowed to probate in a foreign country must be reprobated in the Philippines. Matters To Be Established By The Proponent In The Proceedings for Reprobate In The Philippines:





Property of foreigner – follow Art. 16, Civil Code The will probated abroad should be treated as if it were an original will or a will that is presented for the first time. Thus, publication and notice by mail or personally to the known heirs, legatees and devisees of the testator residing in the Philippines and to the executor, if he is not the petitioner, are required. (Salud Teodoro vda. de Perez vs. Tolete, 232 SCRA 722)

Administration extends only to the assets of the decedent found within the state or country where it is granted, so that an administrator appointed in one state or country has no power over property in another state or country.

TYPES OF ESTATE PROCEEDINGS: 1. Ancillary Administration – administration proceeding where he left his estate; 2. Domiciliary Administration – the proceeding instituted in the last residence of the decedent. 

It would be advisable for RP courts to retain in custodia legis a sufficient amount to protect Philippine claimants with contingent claims (pending cases for payments) since administrator also represent interest of RP creditors and heirs. (Tan vs. Del Rosario, GR No. 109289, October 3, 1994)

Ancillary Administration Requisites: 1. There must be a will (inferred from the wordings of Rule 77); 2. Filing of: 3. Notice of time and place of hearing; 4. Hearing; and 5. Certificate of allowance. Estate, How Administered (Sec. 4)

1. Letters testamentary or administration with a will annexed shall extend to all estates of the Philippines; 2. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to the will, so far as such will may operate upon it, and the residue, if any, shall be disposed of as provided by law in cases of estates in Philippines belonging to persons who are inhabitants of another state or country.

RULE 78

LETTER TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED Person Who Can Administer the Estate: 1. Executor; 2. Administrator (regular or special); (Rule 80) 3.

Administrator with a will annexed.

does not appoint any executor, or if appointed, said person is either incapacitated or unwilling to serve as suc. Letter Testamentary – the authority issued to an executor named in the will to administer by the decedent and carry out the provisions thereof. Letter of Administration – the authority issued to an administrator of the estate when: 1. No executor is named; 2. Executor is incompetent; 3. Executor refused the trust; 4. Executor failed to give a bond; 5. Executor died; or 6. Executor resigned. 7. There’s no will or will not allowed to probate

Who may serve as an executor or administrator? Any COMPETENT person may serve as executor or administrator. EXECUTOR

(Rule

79, Sec. 1)

Persons Incompetent To Serve As Executors And Administrators: 1. Minor; 2. A non-resident of the Philippines; 3. Those who are in the opinion of the court, are unfit to execute the duties of the trust by reason of: a. Drunkenness; b. Improvidence; c. Want of understanding or integrity; d. Conviction of an offense involving moral turpitude. Executor – the person named in the will to administer the decedent's estate and carry out the provisions thereof. Administrator – the person appointed by the court (1) to administer the estate where the decedent died intestate; or (2) where the will was void and not allowed to probate; or (3) where no executor was named in the will; or (4) the executor named therein is incompetent or refuses to serve as such.

Administrator with a will annexed – the one appointed by the court in cases when, although there is a will, the will

Nominated by the testator and appointed by court

Must present will to the court within 20 days after he knows of the death of testator or after he knew that he was appointed as executor (if he obtained such knowledge after death of testator), unless the will has reached the court in any matter. Testator may provide that he may serve without a bond (BUT court may direct him

ADMINISTRATOR Appointed by the court in case the testator did not appoint an executor or the executor refused appointment (administrator with a will annexed)or if the will disallowed or if a person did not make a will (intestate succession)

No such duty.

He must always give a bond.

to give a bond conditioned only to pay debts) Compensation may be provided for by the testator in the will, otherwise Sec. 7, Rule 85 will be followed.

RULE 79

Compensation is governed by Sec. 7, Rule 85.

Order of Preference in the Appointment of Administrator: 1. Surviving husband or wife, as the case may be, or next of kin, or both; or 2. To such person as the surviving husband or wife or next of kin requests to have been appointed; or 3. Principal creditors competent and willing to serve; or 4. Such other person as the court may select. Next of Kin – persons who are entitled to the decedent's property under the statute of distribution.  Nearest of kin is preferred in the choice of administrator. 

Interest in the estate of the deceased Is the principal consideration in the appointment of administrator. (Gonzales vs. Aguinaldo, 190 SCRA 112)



Order of preference in appointing regular administrator may not be followed by the court, but is discretionary upon them. (Matias vs. Gonzales)

Note: The Order of Appointment of Regular Administrator is final and appealable. Basis for the Preferential Right: The underlying assumption is that those who will reap the benefits of a wise, speedy and economical administration of the estate or on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the higher interest and most influential motive to administer the estate correctly.

OPPOSING ISSUANCE OF LETTERS TESTAMENTARY Opposition To Issuance Of Letters Testamentary; Simutaneous Petition For Administration(Sec.1) The main issue is the determination of the person who is rightfully entitled to administration. Persons to oppose the issuance of letters: Any person interested in the will. Ground for Opposition: Incompetence  Opposition may be accompanied by a Petition for the issuance of Letters of Administration with the will annexed. Contents of a Petition for Letters of Administration: 1. Jurisdictional facts; a. Death of the testator; b. His residence at the time of his death; and c. If domiciled in a foreign country, where his estate located. 2. Names, ages and residences of the heirs and creditors of the decedent; 3. Probable value and character of the property of the estate; and 4. Name of the person for whom letters of administration are prayed. No defect in the petition shall render void the issuance of the letters of administration. Interested Party – one who will be benefited by the estate such as an heir, or one who has a claim against the estate. Their interest must be material and direct, not merely indirect or contingent. 

(Gonzales vs. Aguinaldo, G.R. No. 74769 September 28, 1990)

Note: co-administrators may be appointed for the benefit of the estate and those interested therein. (Matute vs. CA, G.R. No. 26751, January 31, 1969)



Where an heir has validly assigned all his rights to the estatee before the institution of settlement proceedings thereover, he no longer has the requisite interest to participate therein. Where the assignment is made during the pendency of the settlement proceedings, it requires the approval of the court. However, even if that assignment has been approved by the court, such approval is not deemed final until the proceeding over the estate is

closed, as such approval can still be vacated, hence the assignor remains as an interested party in the proceeding.

Court To Set Time For Hearing. Notice Thereof (Sec. 3) Publication for three (3) weeks and the notice to heirs, creditors and other persons believed to have an interest in the estate is required before hearing. Note: Section 3 of this Rule is JURISDICTIONAL. Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulted. (Eusebio vs. Valmores G.R. No. L-7019, May 31, 1955)

Opposition To Petition For Administration(Sec.4) Grounds for opposition: 1. Incompetence: 2. Preferential right of the heir under Sec.6, Rule 78. Hearing And Order For Letters To Issue(Sec.5) Leters of Administration shall issue if it is proven that: 1. Notice as required in Sec. 3 was given; and: 2. The decendent left no will; or there is no competent and willing executor. When Letters Of Administration Granted To Any Applicant (Sec.6) Letters can be granted to any person or any other applicant even if other competent persons are present if the latter fail to claim their letters when notified by the court.

RULE 80

SPECIAL ADMINISTRATOR

SPECIAL ADMINISTRATOR – the person appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed. (Tule vs. CA, 74 SCRA 1189)

When may a probate court appoint a special administrator? 1. Delay in granting of letters by any cause including appeal in the probate of the will; 2. Executor is a claimant of the estate she represents. t(Section 8, Rule 86) Note: In the second instance, the administrator shall have the same powers as that of a general administrator. Order of Appointment (Discretionary): The preference accorded by Sec. 6 of Rule 78 of the appointment of a regular administrator, NOT to that of special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable. (Pijuan vs. De Gurrea, G.R. No. L-21917, November 29,1966)

ADMINISTRATOR

SPECIAL ADMINISTRATOR

Appointment may be the subject of appeal.

Appointment is an interlocutory order and may not be the subject of an appeal. Cannot pay debts of the estate.

One of the obligations is to pay the debts of the estate. Appointed when decendent died intestate or did not appoint an executor in the will or will was disallowed.

Appointed when there is delay in granting letters testamentary or administration or when the executor is claimant of the estate.

Powers And Duties Of Special Administrator (Sec.2) 1. Possession and charge of the goods, chattels, rights, credits, and estate of the deceased; 2. Preserve the same; 3. Commence and maintain, suit for the estate; 4. Sell ONLY: a. Perishable property; and b. Other property ordered sold by the court; 5. Pay debts ONLY as may be ordered by the court.

The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond. (Sec 4, Rule 81) When Powers Of Special Administrator Cease; Transfer Of Effects. Pending Suits(Sec. 3) When does the power of a special administrator cease? After the questions causing the delay are resolved and letters are granted to regular executor or administrator. Is an appointment of a special administrator appealable? NO, as expressly provided for in Sec. 1, Rule 109. HOWEVER, appointment of a regular administrator is because it is final order.

does not apply to the appointment of special administrator. Nature of Duty: A special administrator is deemed an officer of the court subject to the supervision and control of the probate court. Appointment of Special Administrator: NOT APPEALABLE, merely interlocutory. Remedy: Certiorari under Rule 65. Powers And Duties of Special Administrator: 1. To take possession and charge of the goods, chattels, rights, credits and estate of the deceased; 2. To commence and maintain suits as administrator; 3. To sell perishable properties and others which the court orders; and 4. To pay debts of the deceased as ordered by the court.

Note: It is possible for the executor or administrator whose appointment is challenged by appeal to be appointed also as the special administrator pending such appeal.

Time When the Power of A Special Administrator Ceases: After the letters are granted to a regular executor or administrator.

There is no harm in appointing the same person as special administrator because there is a vast difference between the powers and duties of the two positions.

RULE 81

While special administrator may commence and maintain suits under Sec. 2, he cannot be sued by a creditor for the payment of the debts of the deceased (De Gala vs. Gonzales, et al.,). Such suit must await the appointment of a regular administrator. Instances When The Court May Appoint A Special Administrator: 1. When there is delay in granting letters testamentary; or 2. When the executor or administrator has a claim against the estate he represents; (Rule 86, Sec. 8) 3. When appointment of executor or administrator is contested (i.e., subject of an appeal) 

In this instance the special administrator shall have the same power of the general administrator.



The order of preference in the appointment of regular administrator

BONDS OF EXECUTORS AND ADMINISTRATORS WHEN FILED: Before an executor or administrator execute the trust. Amount: To be fixed by the court. Conditions: 1. To make a complete and true inventory within 3 months; 2. To administer all goods, chattels, rights and credits which came to his knowledge and possession or to one holding the same for him; 3. To render an accounting within 1 year; and 4. To perform all orders of the court.  The bond posted by administrators and executors is intended as an indemnity to the creditors, the heirs and the estate.

A Special Administrator Is Required To Give A Bond With The Following Conditions: 1. To make an inventory of all goods, chattels, right, and credits; 2. To make an account of the same; and 3. To deliver the same to persons appointed as executor or administrator. ADMINISTRATOR’S BOND / STATUTORY BOND – Terms and effectivity of bond does not depend on payment of premiums and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability. (Luzon Surety vs. Quebrar, 127 SCRA 295)



Bond is effective as long as the court has jurisdiction over the proceedings.

RULE 82

REVOCATION OF ADMINISTRATION DEATH, RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS The letters of administration shall be revoked if a will is proved and allowed by the court

discretion of the court. (Reynoso vs. Santiago, L-3039, December 29, 1949)

Note: the discovery of a will does NOT ipso facto nullify the letters of administration already issued until the will has been proved and allowed pursuant to rule 82, Sec. 1. (de Parreno vs. Aranzanso, G.R. No. L-27657, Aug. 30, 1992)

Grounds for Removal or For Compelling Resignation Of An Executor Or Administrator: 1. Neglects to render his account; 2. Neglects to settle the estate according to law; 3. Neglects to perform an order or judgment of the court; 4. Neglects a duty expressly provided by the Rules of Court; 5. Absconds or becomes insane; 6. Becomes incapable or unsuitable to discharge the trust. The discovery of a will does not ipso facto nullify the letters of administration already issued, until the will has been proved and allowed pursuant to Rule 82, Sec. 1.  Acts of an administrator or executor before the revocation of letters of administration testamentary are valid unless proven otherwise.  The grounds enumerated are not exclusive.  The order of removal is appealable. Note: Grounds are NOT exclusive. 



When letters revoked and power cease When the decendent’s will is allowed and proved by the court after the issuance of letters of administration. Duty of Administration upon revocation of the letters 1. Surrender the letters to the court; and 2. Render his account within such time court may direct. 

Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound

The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence, it is justified in withdrawing the appointment and giving no valid efficacy thereto. (Cobarrubias vs. Dizon, L-225, February 26, 1946)

Degree of Diligence Required: An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. Acts Before Revocation, Resignation Or Removal To Be Valid (Sec.3) Lawful acts of an administrator or executor before the revocation, resignation, or removal are valid.

Powers of New Executor or Administrator. Renewal of License to Sell Real Estate 

The order of removal is appealable. (Borromeo v. Borromeo, 97 Phil. 549)

Powers of the new executor or administrator 1. Collect and settle the estate not administered; 2. Prosecute or defend actions commenced by or against the former executor or administrator; and 3. Have execution on judgments recovered in the name of former executor or administrator. Authority to sell previously given to the former executor or administrator may be renewed without notice or hearing.

RULE 83

INVENTORY AND APPRAISAL 





PERSONS ENTITLED TO ALLOWANCE DURING PROCEEDINGS: 1. Legitimate Surviving Spouse; 2. Children of the Decedent.

The executor or administrator shall make an inventory and appraisal of the estate of the deceased within 3 months after his appointment. The administrator is also accountable for a true and complete inventory of all the property belonging to the estate, which has come to his knowledge. The 3-month period provided herein is not mandatory and the court retains jurisdiction even if the inventory is filed after said period, but such delay, if not satisfactorily explained, may be a ground for the removal of the administrator under Section 2, Rule 82.

Certain Articles Not To Be Inventoried (Sec.2) 1. Wearing apparel surviving spouse and minor children; 2. Marriage bed and bedding; 3. Provision and other articles as will necessarily be consumed in the subsistence of the family of the deceased.

ALLOWANCE TO WIDOW AND FAMILY:  Art. 188 of the Civil Code permits such support to the children of the deceased, without requiring that they be minors or incapacitated.  Such allowance should even include children of legal age as the right and duty to support subsist even beyond the age of majority. Substantive law prevails. Hence, the Civil Code prevails over the Rules of Court. 

Grandchildren are not entitled to allowance under Rule 83. (Heirs of Ruiz vs. CA, 252 SCRA 541)

RULE 84

POWERS OF EXECUTOR / ADMINISTRATOR OF THE ESTATE Powers of Executor / Administrator of The Estate: 1. To have access to, and examine and take copies of books and papers relating to the partnership in case of a deceased partner; 2. To examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3. To make improvements on the property under administration with the necessary court approval except for necessary repairs; and 4. To possess and manage the estate when necessary: a. For payment of debts; b. For payment of expenses of administration. Some Restrictions on the Power of an Administrator or Executor 1. Cannot acquire by purchase, even at public or judicial auction, either in person or mediation of another, the property under administration; 2. Cannot borrow money without authority of the court;

3. Cannot speculate with funds under administration; 4. Cannot lease the property for more than one year; 5. Cannot continue the business of the deceased unless authorized by the court; 6. Cannot profit by the increase or decrease in the value of the property under administration.

2. Filing a petition in the administration proceedings for the probate court to allow the same and to direct the payment of his fee as an expense of administration. 

Where an attorney renders services to the administrator or executor personally aid in the execution of his trust, the administrator or executor is liable for the fees, as expenses of administration where the same is reasonable and beneficial to the estate (Uy Tioco vs. Imperial et al., 53 PHIL 802).

RULE 85

ACCOUNTABILITY AND COMPENSATION General Rule: He is chargeable in his

account with: 1. The whole of the estate of the deceased at the value of the appraisement contained in the inventory; 2. The interest, profit and income of the estate; 3. The proceeds of the estate sold by him at the price it was sold. Exception: He is not accountable for the

properties of the deceased which has not come to his possession. arellano law Exception to the exception: When through

unfaithfulness to the trust or through his own fault or lack of necessary court action, he fails to recover a portion or part of the estate which has come to his knowledge. In which case, he will be accountable for such properties as well. 



No executor or administrator shall profit by the increase, or suffer the loss by the decrease or destruction, without his fault, of any part of the estate. (Rule 85, Sec. 2) The administrator or executor is entitled to charge in his accounts all expenses of administration incurred by him.

Expenses of Administration: Those necessary for the management of the property, for protecting it against destruction or deterioration, and possibly for the production of fruits. Ways In Recovering Attorney's Fees: 1. Bringing an independent civil action personally against the executor or administrator; or



Where, however, the attorney’s services were rendered in a litigation involving such administrator or executor in his capacity as trustee if the estate and for the protection of the interests of such estate, the attorney’s fee is chargeable to the estate (Rodriguez vs. Yuza, 97 PHIL 1003).

WHEN EXECUTOR OR ADMINISTRATOR SHOULD RENDER AN ACCOUNTING: General Rule: Within 1 year from the time of receiving letters testamentary or of administration. Exception: An extension of time is allowed

for presenting claims against, or paying debts of the estate, or for disposing of estate, but even in such cases, administration should be terminated in more than 2 1/2 years.

the the the not

ALLOWABLE EXPENSES AND FEES FOR EXECUTOR OR ADMINISTRATOR: 1. Necessary expenses – in the care, management and settlement of the estate; 2. For services rendered – 4 Pesos per day from the time actually and necessarily employed; 3. Commission – upon the value of the of so much of the estate that come into his possession and is finally disposed of by him in the payment of debts, expenses, legacies or distributive shares or delivery to heirs or devisees. (Rule 85, Sec. 7)

When Greater Sum May Be Allowed As Fees / Compensation For Executor Or Administrator: 1. Where the estate is large; 2. The settlement of the estate has been attended with great difficulty; and

3. Required a high degree of capacity on the part of the executor or administrator. When Executor Or Administrator Is An Attorney – Professional fees for legal services rendered shall be charged against the estate. (Rule 85, Sec. 7)

Distinctions Between Statute of Non-Claims and Statute of Limitations: Statute of Non-claims

RULE 86

CLAIMS AGAINST ESTATE CLAIM – a debt or pecuniary demand against the decedent’s estate. WHEN CLAIMS SHOULD BE FILED: General Rule: Statute of Non-Claims (Sec. 2) – not more than 12 months nor less than 6 months after the date of the first publication of the notice. Failure to file claim within said period will bar recovery by creditor.  Statute of Non-Claims also runs against the State according to the weight of authority. Exception: Claims by the Gov’t for unpaid 

taxes, filed within the period of limitation prescribed in the NLRC, are not covered by the Statute of non – claims as these are monitary obligations created by law. (Vera vs. Fernandez, L-31364, March 30, 1979) 

The court for good cause shown and on such terms as are equitable may grant 1 month grace period on application of a creditor who has failed to file his claim within the period fixed under Sec 2. However, the motion must be filed before an order of distribution is entered. (Danan et al. vs. Buencamino, etc. et December 14, 1981).

al.,

G.R.No.

57205,

Purpose of Administration: 1. Liquidation of the estate; and 2. Distribution of the residue among the heirs and legatees. LIQUIDATION – the determination of all the assets of the estate and payment of all debts and expenses. DEGREE OF CARE: reasonable diligence and act in entire good faith in the performance of that trust.

Statute of Limitations

Sets the period to enforce money claims in court against the estate of the decedent

Sets the maximum period after certain events that legal proceedings may be initiated

Applicable to civil actions

Applicable to civil and criminal actions

To protect the estate of deceased persons

To protect persons against claims made after evidence have been lost, memories have faded or witnesses have disappeared

Period commences to run from the first publication of the notice to file all claims

Period commences to run from the accrual of the claim or from the discovery of the act resulting in the alleged injury

Period fixed is not less than 6 months nor more than 12 months from the day of first publication of notice or before an order of distribution is entered

Deadlines vary depending on the type of case or claim

Notice to Be Given for the Filing of Claim: 1. Duties of Executor/Administrator: a. Notices to creditors be published; b. File or cause to be filed in court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication and the name of the newspaper in which the notice has been printed. 2. Where and when to be published: In a newspaper of general circulation in the province for 3 consecutive weeks. 3. Where to be posted: In 4 public places in the province and in 2 public places in the municipality where the decedent last resided within the same period. 

A notice to creditors to file their claims is not proper if only a special administrator has been appointed as a special administrator is

generally not empowered to pay the debts of the deceased and his bond, unlike that a regular administrator, is not conditioned upon the payment of such debts.

Claims to be Filed with the Probate Court Within the time Limited in the Notice: 1. All claims for money against the decedent arising from contract, express or implied whether the same be due, not due or contingent; 2. All claims for funeral expenses and expenses for the last sickness of the decedent; and 3. Judgment for money against the decedent.  



These claims must be filed with the probate court within the time limited in the notice; otherwise, they are barred forever. If the claim is for the recovery of real or personal property from the estate or the enforcement of any lien thereon, an action should be instituted for that purpose against the executor or administrator. Where the defendant dies while the action for a sum of money against him is pending in the Court of Appeals, he shall be substituted therein by his legal representative but the final judgment of the appellate court cannot be enforced by a writ of execution but should be filed in the probate as a money claim in accordance with Section 5, Rule 86 (Paredes vs. Moya, L-38051, December 26, 1973).



If there is no instrument evidencing the debt of the decedent and no writing is offered as proof thereof, the claim cannot be proved. (Sec. 23, Rule 130, Dead Man Statute)

Absolute claim is such a claim as, if contested between living persons, would be proper subject of immediate legal action and would supply a basis of a judgment for a sum certain. Contingent claim is a conditional claim or claim that is subject to the happening of a future uncertain event. Claims Not Barred Even If Filed Beyond The Time Limit: 1. Claims which can be set forth as counterclaims; 2. In cases where an E/A commences or prosecutes an action already commenced by the deceased in his lifetime, the debtor by answer may set forth his claims against the decedent;

3. Mutual claims against each other. Statute of Non-Claims SUPERSEDES the Statute of Limitations insofar as the debts of deceased persons are concerned because if a creditor fails to file his claim within the time fixed by the court in the notice, then the claim is barred forever. However, BOTH statute of Non-Claims and Statute of Limitations MUST CONCUR in order for a creditor to collect. Note: HOWEVER, a creditor barred by the Statute of Non-Claims may file a claim as a COUNTERCLAIM in any suit that the executor or administrator may bring against suce creditor (Sec. 5). Obligation of the Decedent: 1. In solidary obligation – claims should be filed against decedent as if he were the only debtor without prejudice on the part of the estate to recover contribution from the other debtor. 2. In joint obligation – the claim must be confined to the portion belonging to the decedent. Remedies of a Mortgagee-Creditor Upon Death of the Mortgagor: 1. Abandon the security and file a money claim against the estate; 2. Institute a foreclosure suit and recover upon the security; and 3. Rely solely upon his mortgage and foreclose the same at anytime within the statute of limitations. 

 



If the creditor fails to obtain full recovery of his claim, he may obtain a deficiency judgment and file it as a claim against the estate in the manner provided by this Rule, provided that he does so within the period for the filing of claims against the estate, otherwise it will be barred. These remedies are ALTERNATIVE. The judgment approving or disapproving a claim is appealable as in ordinary cases. Judgment against executor and administrator shall not create any lien upon the property of the estate or give to the judgment creditor any priority of payment. (Sec. 13)

CLAIMS EXTINGUISHED BY DEATH Personal to either of the parties and is extinguished by death Examples: legal separation, annulment of marriage, declaration of nullity of marriage

ACTIONS WHICH SURVIVE Claim is not extinguished by death but shall be prosecuted as a money claim against the estate of the deceased Example: contractual money claim

RULE 87

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Actions That May Be Brought Against Executor or Administrator: 1. Actions to recover real or personal property or an interest therein; 2. Actions to enforce a lien thereon; and 3. Actions to recover damages for an injury to person or property, real or personal. Actions That May Not Be Brought Against Executor Or Administrator: 1. Actions for the recovery of money or debt or interest thereon; (Sec. 1) and 2. If the action would result in a direct charge upon the estate, the executor or administrator is to be sued in his representative capacity. Actions Which the Executor or Administrator May Bring or Defend: 1. Actions for the recovery or protection of the property or rights of the deceased; 2. The executor or administrator has the right to sue upon any cause of actions which accrued to the decedent during his lifetime. Heirs or devisees are prohibited from suing the Administrator or Executor for recovery of title to, or possession of, or for damages done to lands of the estate while the Administrator or Executor is still discharging his functions. General

Rule:

Exceptions:

1. Where there is already an order of the court assigning the lands to the heirs or devisees; and

2. When the time allowed for paying debts has expired. 

The prohibition applies only to heirs or devisees and not to a donee inter vivos who may file an action to compel the administrator to deliver the property donated.

Powers Given to Administrators or Executors Which Require Court Approval: 1. Compound with the debtor of the deceased for a debt due; and 2. Give a discharge of such debt on receiving a just dividend of the estate of the debtor. Powers Given to Administrator or Executor Which Do Not Require Court Approval: 1. Foreclose any mortgage belonging to the estate of the deceased; and 2. Enforce payment on the mortgage debt on behalf of the estate of the deceased. Instances Contemplated By Rule 87, Sec. 6: Where a person is: 1.

2.

3.

4.

5.

Suspected of having concealed any of the money, goods or chattels of the deceased; Suspected of having embezzled any of the money, goods or chattels of the deceased; Suspected of having conveyed away any of the money, goods or chattels of the deceased; In possession of any deed, conveyance, bond, contract or other writing which contains evidence of or tends to disclose the right, title, interest or claim of the deceased to real or personal estate, or the last will and testament of the deceased; With knowledge of any deed, conveyance, bond, contract or other writing which contains evidence of or tends to disclose the right, title, interest or claim of the deceased to real or personal estate, or the last will and testament of the deceased. arellano law

Remedies

of the Court When the Property is Concealed, Embezzled or Fraudulently Conveyed: 1. May cite the suspected person to appear before it and may examine him under oath on the matter; 2. May punish him for contempt and commit him to prison until he submits to the orders of the court.

a. 



Property fraudulently conveyed by the deceased to defraud the creditors may be recovered by executor or administrator in an action for the benefit of the creditors. (Sec. 9) If the executor or administrator has not commenced action, any creditors of the estate may, with permission from the court, prosecute to final judgment the recovery of property in the name of executor or administrator. (Sec. 10)

payment b.

Conditions Before an Administrator or Executor Can Pay Debts: 1. All the money claims against the estate have been heard. 2. The amount of such claims has been ascertained; and 3. It appears that there are sufficient assets. 





Writ of execution is not the proper procedure for the payment of debts, expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of the real property of the deceased and satisfy the debts and expenses out of the proceeds. If the testator makes provision in his will, the debts shall be paid according to it. But if the provision made in the will is not sufficient, such part of the estate of the testator, real or personal, not disposed of by will shall be appropriated. (Sec.2)

Order of Priority in the Properties Chargeable for Debts: 1. Personal property designated in the will; 2. Personal property not disposed of by will; and 3. Real property not disposed of by will. CONTINGENT CLAIMS BECOMING ABSOLUTE IN 2 YEARS: 1. If presented to the court or to the Administrator or Executor within 2 years from the expiration of the time limited for other creditors to present their claims:

If disputed – should be proved before the court

2. If not presented within the 2-year period: a. If allowed by the court – the court

RULE 88

PAYMENT OF THE DEBTS OF THE ESTATE

If not disputed – creditor will receive

b.

may order the distribution of the assets retained in the hands of the Administrative or Executor to the claimant. If the property is already in the hands of the distributees, claimant may maintain an action against the distributees to recover the debt. Distributees shall be liable for the debt in proportion to the amount of the estate they have recovered from the property of the deceased. If not allowed – claimant will not receive payment

Conditions Before Payment of Claims of Creditors in Another Country Against an Insolvent Estate of a Resident Citizen is Allowed: 1. Claims have been duly proven in another country against the estate of an insolvent; 2. The Executor or Administrator in the Philippines had knowledge of the presentation of such claims in such country; and 3. The Executor or Administrator had an opportunity to contest their allowance. Orders of Court Relating To Payments of Debts Where an Appeal Has Been Taken: 1. Suspend the order for the payment of the debts; or 2. Order the distribution among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. Instances of Subsequent Distribution of the Assets May Be Ordered By the Court: 1. If the whole of the assets are not paid on the first distribution and if the whole assets are not distributed; and 2. If other assets afterwards come to the hands of the Executor or Administrator. Period for Paying Debts and Legacies: Administrator or Executor shall pay the debts and legacies of the deceased within 1

year after the granting of testamentary or of administration. 





letters

This period is extendible for 6 months after application and hearing. But the whole period allowed for the original executor or administrator shall not exceed 2 years. If the Administrator or Executor dies and a new Administrator is appointed, the new Administrator is given a period not exceeding 6 months beyond the time which the court might have allowed the original Administrator or Executor. If there are no assets sufficient to pay credits of any one class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim.

RULE 89

SALES, MORTGAGES AND OTHER ENCRUMBANCES OF PROPERTY OF DECEDENT Requisites for the Sale of Personalty: 1. There must be an application of executor or administrator; 2. There must be a written notice to the heirs and other persons interested; and 3. It must be necessary for the purpose of paying debts, expenses of administration or legacies or for the preservation of the property. Instances Where Court May Authorize Sale, Mortgage or Other Encumbrance of Realty to Pay Debts and Legacies: 1. When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration and legacies; or 2. Where the sale of such personal estate may injure the business or other interests of those interested in the estate. arellano law When Court May Grant Authority to Sell, Mortgage and Encumber Real Estate: Requisites:

1. The testator has not otherwise made sufficient provisions for the payment of such debts, expenses and legacies;

2. The Executor or Administrator has made an application for authority to sell real estate; 3. Written notice of the application is given to the heirs, devisees and legatees residing in the Philippines; and 4. The sale, mortgage or encumbrance would be beneficial to the persons interested. When Court May Authorize Sale, Mortgage or Other Encumbrance of Estate To Pay Debts And Legacies In Other Countries: Requisites:

1. When the sale of personal estate, or the sale, mortgage or other encumbrance of real estate is not necessary to pay the debts, expenses of administration or legacies in the Philippines; and 2. The estate of the deceased in the other country is not sufficient to pay the debts, expenses of administration and legacies there. When Court May Authorize Conveyance of Realty Which Deceased Contracted to Convey Requisites:

1. The Executor or Administrator has made an application to deed real property or an interest therein. If the conveyance is made in favor of the Administrator or Executor, the deed is executed by the clerk of court; 2. Notice of application for such purpose has been given personally or by mail to all persons interested, and such further notice has been given by publication or otherwise; 3. The assets in the hands of the Executor or Administrator will not be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend. 



This presupposes that there is no controversy as to the contract contemplated therein and that the assets of the estate will not be reduced to the extent of depriving the creditor of full payment of his claim or his just dividend. If such objections obtain, the remedy of the person seeking the execution of the contract is an ordinary and separate action to compel the same.

 

RULE 90

DISTRIBUTION AND PARTITION OF THE ESTATE 

The court loses jurisdiction over an estate under administration only after payment of all the debts and the residue estate has been delivered to the respective heir entitled to receive them.

Instances Where Court May Allow Distribution: 1. After payment of the debts, funeral charges, expenses of administration, allowance to the widow and estate tax, if any, chargeable to the estate in accordance with law, have been paid; or 2. Before payment of said obligations of the estate, if there is a sufficient bond filed by the distributees. Persons Liable To Pay for the Expenses of Partition: 1. The Executor or Administrator, if at the time of partition: (a) has retained sufficient effects in his hands which may be lawfully applied for the expenses of partition of the properties distributed, and (b) when it appears equitable to the court and not inconsistent with the intention of the testator. 2. Otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises. Instances When Probate Court May Issue a Writ of Execution: 1. To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent's assets; (Rule 88, Sec. 6) 2. 3.

To enforce payment of expenses of partition; and (Rule 90, Sec. 3) To satisfy the costs when a person is cited for examination in probate proceedings.

 

A writ of execution may not issue to enforce payment of a legacy because it is not a debt of the estate. A final decree of distribution of the estate of a deceased person vest title to the land in the distributees. In case of non-distribution of the estate, a motion for execution is the proper remedy. The probate court has the authority to order the issuance of a writ of possession for the recovery of the share by the heir or other interested person from the executor or administrator or other persons having possession of the property without the need of previous demand. 

The finality of the approval of the project partition by itself alone does not terminate the probate proceeding. As long as the order of distribution has not been complied with, the probate proceedings cannot be deemed closed and terminated. (Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111)



The better practice for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administration proceedings if it had already been closed, and not through an independent action. (Guilas case, supra)

General Rule: Final liquidation of an estate

may not be set aside when the settlement proceedings are already closed. Exception: When a party interest in the proceedings is left out by reason of circumstances beyond his control, or through mistake, or inadvertence not imputable to negligence. Such party may file a motion to reopen the proceedings within the 30-day reglementary period. Note: Filing of a separate action is NOT a proper remedy. HOWEVER, in some cases, Supreme Court allowed a separate action to prosper since the estate proceedings had been closed and terminated for over 3 years and without the fault or negligence of the party.

RULE 91

ESCHEATS ESCHEAT – a proceeding whereby the real and personal property of a decedent who has no heirs becomes the property of the State upon his death.

Instances of Escheat Proceedings: 1. When a person leaving property in the Philippines died intestate; 2. When a person who has no known heirs died intestate but his will was not allowed; 3. Reversion proceedings when the sale is in violation of a constitutional provision; 4. Unclaimed Balance Act. VENUE:

 

RTC of the province where the deceased last resided or in which he had estate, if he resided outside the Philippines.

The petition shall be filed by the Solicitor General or his representative in behalf of the Republic of the Philippines. The heirs in the proceedings are the relatives up to the 5th civil degree of consanguinity.

Requisites for Filing Petition for Escheat: 1. That a person died intestate; 2. That the decedent left no heirs or person by law entitled to the same; and 3. That the decedent left properties. 

Once the court acquires jurisdiction to hear the petition for escheat, this jurisdiction cannot be converted into one for the distribution of the properties of the decedent. Proper petitions must be presented and proceedings should comply with the requirements of the Rule. (In Re Anne Fallen Murphy, GR No. L-14157, Oct. 26, 1960)

Basis of the State’s Right to Receive Property in Escheat:  In the order of succession under the Civil Code, the State is the last heir of the decedent. Prescriptive Period:  Claims to the estate should be filed within 5 years from the date the property was delivered to the State. Otherwise, the claim shall be barred forever. To Whom Will The Property Escheated Be Assigned: 1. If personal property, in the municipality or city where he last resided; 2. If real property, where the property is situated; or 3. If deceased never resided in the Philippines, where the property may be found.





An action for reversion shall be filed in the province where the land lies in whole or in part (Sec. 5). It is proper in illegal sales of land to disqualified aliens. The court cannot convert escheat proceedings into ordinary special proceedings or vice-versa because the two actions have different requirements in acquiring jurisdiction. In other Special Proceedings, publication is once a week for 3 weeks while in escheat, once a week for 6 weeks.

Escheat vs. Reversion: An action for reversion is slightly different from an escheat proceeding but its effects, they are the same. They only differ in procedure. Escheat – may be constituted as a consequence of a violation of Article XIII of the Constitution which prohibits transfers of private agricultural land to aliens. Reversion – authorized under Public Land Act. (Commonwealth Act No. 141)

RULE 92

GUARDIANSHIP GUARDIANSHIP – the power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of age or other infirmity which renders him unable to protect himself. Nature of Guardianship: A Trust Relation of the most sacred character. Basis: Parens Patriae – the duty of the state in protecting the rights of persons who because of age or incapacity, are in an unfavorable position vis-à-vis other parties. Venue: 1. If the minor or incompetent person is residing in the Philippines – the place of residence of the minor or incompetent; 2. If outside the Philippines – the place where the property is situated.

d; 3.

Guardianship of Minors is now governed by the Rule on Guardianship of Minors (AM No. 03-02-05-SC) which took effect on May 1, 2003. R.A. 8369, Family Courts Act of 1997 vested the Family Courts with exclusive original jurisdiction on Guardianship of Minors. Guardianship of Incompetents are still governed by the provision of the Rules of Court on guardianship. (Rule 92 to 97)







KINDS OF GUARDIANS: A. According to Scope 1. Over the PERSON OF THE WARD; 2. Over the PROPERTY; or 3. Over BOTH of the above. B. According to Constitution 1. Legal Guardian – without the necessity of appointment by court; 2. Guardian Ad Litem – court appointed, to prosecute or defend a minor, insane or incompetent, in a court action; or 3. Judicial – court appointed, in pursuance to law. Persons Considered As Incompetent: 1. Persons suffering under the penalty of civil interdiction; 2. Hospitalized lepers; 3. Prodigals; 4. Deaf and dumb who are unable to read and write; 5. Persons of unsound mind even though they have lucid intervals; and 6. Persons not of unsound mind but by reason of age, disease, weak mind and other similar causes, cannot without outside aid, take care of themselves and manage their property. arellano law

RULE 93

APPOINTMENT OF GUARDIANS Who May Petition for Appointment of Guardian: Minor 1.

Any relative;

2.

Frien

Incompetent 1. Any relative; 2.

4.

5.



Othe r person on behalf of a minor The minor himself if 14 years of age or over; or The Secretary of Social Welfare & Development & by the Secretary of Health in case of an insane person who needs to be hospitalized.

Friend; 3. Other person on behalf of the incompetent who has no parents or lawful guardian; or 4. The Director of Health in favor of the insane person who should be hospitalized or in favor of an isolated leper.

The petition shall be verified and accompanied by a certification against forum shopping. However, no effect in the petition or verification shall render void the issuance of letters of guardianship.

Notice of Application and Hearing to Whom Given: 1. Persons mentioned in the petition residing in the Philippines; and 2. The minor himself if the above is 14 years old or over and the incompetent himself. Ancillary Guardianship – the guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the latter.

Guardian Appointed for Non-Residents: When a non-resident has property situated in the Philippines, any relative, friend or anyone interested in the estate of the nonresident may file a petition for appointment of a guardian. Grounds for Contesting Petition: 1. Majority of the alleged minor; 2. Competency of the alleged incompetent; 3. Unsuitability of the person for whom letters are prayed. Modifications of Sec. 7 of Rule 93 (Parents As Guardians) By Article 225 of the Family Code: 1. The property of the child should now be worth P50,000 or less; 2. Both the father and the mother shall exercise legal guardianship over the property of their unemancipated common child; 3. When the market value of the property or the annual income of the child exceeds P50,000,



the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than 10% of the value of the property or annual income. The appointment of a guardian is good until set aside and, despite an appeal therefrom, the guardian can do whatever is necessary, under the direction of the court, for the protection of the ward or his property.





In the case of mortgages and other encumbrances, the one-year period does not apply.



Appeal, not certiorari or mandamus, is the proper remedy against an order of the court a quo authorizing the sale of a ward’s property.

RULE 94

BONDS OF GUARDIANS Guardians should furnish a bond before entering upon the execution of his trust or before his letters of guardianship issues.  

The purpose is to the end that the minor be assured of honest administration of his funds during his minority. The ordinary and usual condition of a guardian's bond is that he will faithfully discharge his duties as such.

Conditions In The Filing of Bond: 1. 2. 3.

4.

To make and return to the court, within 3 months, a true and complete inventory of all the estate; To faithfully execute the duties of his trust; To render a true and just account of all the estate of the ward in his hands and of all proceeds or interest derived therefrom; and To perform all orders of the court.

RULE 95

SELLING AND ENCUMBERING PROPERTY OF WARD When Guardian May Petition To Sell Or Encumber The Property of the Ward With Leave of Court: 1. When the income of an estate under guardianship is insufficient to maintain the ward and his family; 2. When the income is insufficient to maintain and educate the ward when a minor; and 3. When it appears that it is for the benefit of the ward, his real estate or some part thereof may be sold or mortgaged or

otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security. The order empowering the guardian to sell the property belonging to the ward shall not be effective for more than 1 year after it has been granted.



In the absence of any special authority to sell conferred by will, statute or order of court, a sale of the ward’s realty by the guardian without authority from the court is VOID. (Singco vs. Longa, 51 Phil. 507)



A spouse who desires to sell real property as such administrator of the conjugal property must observe the procedure for the sale of the ward’s estate required under Rule 95, NOT the summary judicial proceedings under Article 124 of the Family Code. (Glenda Uy vs. CA, GR No. 109557, Nov. 29, 2000)

RULE 96

GENERAL POWERS AND DUTIES OF GUARDIANS Powers and Duties of A Guardian: 1. Care and custody of the person of the ward and the management of the ward’s estate; 2. Settle all accounts of his ward; 3. Demand, sue for and receive all debts due to the ward; 4. Compound the debts and give discharge to the debtor, on receiving a fair and just dividend of the estate and effects, with the approval of the court; 5. Represent his ward in all actions and special proceedings unless another person be appointed for the purpose. 6. May join in partition proceedings; and 7. Render an inventory of the estate of his ward within 3 months after his appointment and annually after such appointment, an inventory and account.

Order of Priority In Paying Ward’s Debts: 1. Out of ward’s personal estate; 2. Out of the income of the ward’s real estate; and 3. Out of the ward’s real estate upon obtaining an order for the sale or encumbrance thereof. Requirements Before A Guardian May Be Authorized To Join In Partition: 1. May be granted only after hearing the petition for the grant of such authority; 2. Relatives of the ward are duly notified of such petition for partition; and 3. Authorization may be granted only after a careful investigation as to the necessity and propriety of the proposed action. 



After rendering an account, the guardian, other than a parent, shall be allowed the amount of reasonable expenses incurred in the execution of his trust. The guardian is entitled to compensation for his services, as the court deems just, not exceeding 15% of the net income of the ward. arellano law

RULE 97

TERMINATION OF GUARDIANSHIP GROUNDS FOR TERMINATION: Minor The ward has come of age; or has died

1.

2.



Incompetent Comp etency of the ward has been judicially determined; or Guard ianship is no longer necessary.

Sec. 3 is inoperative because there is no such thing as emancipation by marriage or voluntary emancipation by reason of the lowering of the age of majority to 18. (R.A. 6809)



Sec. 4 is also inoperative by reason of the removal of the municipal court’s jurisdiction over guardianship proceedings under B.P. 129, as amended.



The court which appointed the guardian is also the court competent to decide the petition for restoration of capacity which

is merely a continuation of the original guardianship proceeding (Crisostomo vs. Eudencia, 66 Phil 1)

GROUNDS FOR REMOVAL OF THE GUARDIAN: 1. When he becomes insane; 2. Incapable of discharging his trust; 3. Unsuitable for discharging his trust; 4. Has wasted the estate; 5. Has mismanaged the estate; and 6. Has failed for 30 days after it is due, to render an account or make a return. SPECIAL RULES FOUND IN THE RULE ON GUARDIANSHIP OF MINORS AM No. 03-02-05-SC

A. Grounds for Petition: (Sec. 4) 1. Death, continued absence or incapacity of his parents; 2. Suspension, deprivation or termination of parental authority; 3. Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; and 4. When the best interest of the minor so requires. B. Qualifications of Guardians: 1. Moral character; 2. Physical, mental and psychological condition; 3. Financial Status; 4. Relationship of trust with the minor; 5. Availability to exercise the powers and duties of a guardian for the full period of guardianship; 6. Lack of conflict of interest with the minor; and 7. Ability to manage the property of the minor. Who May Be Appointed Guardian of the Person Or Property, Or Both, of A Minor: In default of parents or a court - appointed guardian, the court may appoint the following, observing as far as practicable, the order of preference: 1. The surviving grandparent and in case several grandparents survived, the court shall select any of them taking into account relevant considerations; 2. The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified; 3. The actual custodian of the minor over 21 years of age, unless unfit or disqualified; or

4.

Any other person who in the sound discretion of the court would serve the best interest of the minor. (Sec. 6)

RULE 98

TRUSTEES TRUST – the right enforceable solely in equity to the beneficial enjoyment of property, the legal title to which is vested in another. Trustor – a person who establishes the trust. Trustee – a person in whom confidence is reposed as regards property or one who takes and holds legal title to the trust property for the benefit of another. Beneficiary – a person for whose benefit the trust has been created.

Kinds of Trusts: 1. Express – those created by the intention of the trustor or the parties (Articles 1443-1446 of the Civil Code) 2.

Implied – those that came into being by operation of law (Articles 1447-1457 of the Civil Code)



This rule applies only to express trusts as these are understood in Arts.1443-1446 of the Civil Code, and does not apply to implied trusts which arise by operation of law.

Who May File Petition for Appointment of Trustee: 1. Executor; 2. Administrator; or 3. Person appointed as trustee under the will or written instrument. 







The appointing court is the RTC in which the will was allowed or the RTC of the province in which the property or some portion thereof, affected by the trust is situated. Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will. The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines. Before entering on the duties of his trust, a trustee shall file a bond. Failure to file such bond, he shall be considered to have

declined or resigned the trust. (Rule 98, Sec. 5)

The non-acceptance of trustee is not sufficient for failure of trust. Remedy is to go to court for appointment of a trustee.



Conditions In Exempting A Trustee From Giving A Bond: 1. When the testator has directed or requested such exemption, and may so exempt any trustee; or 2. When all persons beneficially interested in the trust, being of full age, request the exemption. The court may cancel such exemption at any time and the trustee required to forthwith file a bond.



Conditions Included In the Bond To Be Performed By the Trustee: 1. To make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee; 2. To mortgage and dispose of all such estate, and faithfully discharge his trust in relation thereto; 3. To render a true account of the property in his hands at least once a year; and 4. To settle his accounts in court at the expiration of his trust. Requirement of court order when there is a sale/encumbrance of trust estate. Note:

Distinction Between the Duties of A Trustee And An Executor Or Administrator: Trustee Duties are usually governed by the intention of the testator or the parties, if established by contract May cover a wider range of duties 

Executor/Administrator Duties are fixed and/or limited by law

Lesser range of duties

For purposes of prescription, the possession of the property by the trustee is not an adverse possession, and only a possession in the name and in behalf of the owner of the same. (Tolentino vs. Vitug, 39 Phil. 126)

Grounds for Removal of Trustee:

1.

2. 3. 4.

If removal appears essential to the interests of parties; Insane; Incapable of discharging his trust; or Evidently unsuitable. arellano law

(Sec. 7[b]) The adoptee must be qualified under DAA (Sec. 8).

The adoptee must be a legally free child( one who has been voluntarily or involuntarily committed to the DSWD in accordance with the PD 603 (Sec. 8).

Venue: Family Court of the province/city where the prospective parents reside.

Venue: Family Court having jurisdiction over the place where the child residesn or may be found.

RULE 99

ADOPTION AND CUSTODY OF MINORS Note: Rules 99 and 100 which provide for the rules on adoption particularly custody of minors (Rule 99) and rescission and revocation of adoption (Rule 100) have been MODIFIED with “SUPERSEDED” accordingly by A.M. No. 02-602 New Rules on Adoption effective August 22, 2002.

ADOPTION – a juridical act, a proceeding in rem, which creates between 2 persons a relationship similar to that which results from legitimate paternity and filiation. (Hofilena vs.

RULE ON ADOPTION A.M. 02-6-02 This new rule is designed to protect the “best interests” of the adoptee. 

NOTICE to the Office of the Solicitor General is mandatory when petition for adoption includes a prayer for a change of name. (Sec. 12)



Written consent of the natural parent is indispensable for the validity of the decree of adoption, but it can be dispensed with if the parent has abandoned the child or that such parent is insane or hopelessly intemperate.

Republic, 34 SCRA 550))

Nature of Adoption: 1. NON-ADVERSARIAL proceeding; 2. A proceeding IN REM. 

Only an adoption made through the court, or in pursuance with the procedure laid down in the Rules on Adoption is valid in this jurisdiction.

Venue: Petition for adoption shall be filed with the Family Court of the province or city, where the prospective adopter resides. What the Court Determines: 1. Capacity of the adopters; and 2. Whether the adoption would be for the best interest of the child. Pertinent laws: 1. Domestic Adoption Act (R.A. 8552); 2. Inter-Country Adoption Act (R.A. 8043) DISTINGUISH R.A. 8552 FROM R.A. 8043 Domestic Adoption

Inter-Country Adoption

The alien-adopter must reside in the Philippines for at least 3 years prior to the filing of petition for adoption

There is no residency requirement for alienadopter.

(Cang vs. Court of Appeals, 296 SCRA 128)

WHO MAY ADOPT: 1. Any Filipino citizen: a. Of legal age; b. In possession of full civil capacity and legal rights; c. Of good moral character; d. Has not been convicted of any crime involving moral turpitude; e. Emotionally & psychologically capable of caring for children; f. In a position to support and care for his children, in keeping with the means of the family; and g. At least 16 years older than the adoptee. (Sec. 4) 

The requirement of 16 years difference between the adopter and the adoptee is NOT applicable: 1. If the adopter is the biological parent of the adoptee; or 2. If the adopter is the spouse of the adoptee’s parent.

2. Any alien: 1. Possesses the same qualification as above stated for Filipinos; 2. His country has diplomatic relations with the Philippines; 3. Has been living in the Philippines for at least 3 continuous years, prior to the filing of the application for adoption; 4. Maintains residence until the adoption decree is entered; 5. Certified to have legal capacity to adopt by his country; and 6. His government allows the adoptee to enter his country as his adopted child. 

The requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following: 1. A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; 2. One who seeks to adopt the legitimate child of his Filipino spouse; or 3. One who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse.

3. Guardian ADOPTION BY SPOUSES General Rule: Husband and wife shall jointly adopt.

WHO MAY BE ADOPTED: 1. Any person below 18 years old who has been judicially declared available for adoption; 2. The legitimate child of one spouse, by the other spouse; 3. An illegitimate child, by a qualified adopter to improve the child’s status to that of legitimacy; 4. A person of legal age if, prior to the adoption, said person had been consistently considered and treated by the adopters as his own child since minority; 5. A child whose adoption has been rescinded; 6. A child whose biological or adoptive parents have died; or 7. A child not otherwise disqualified by law or rules. (Sec. 5) WHO MAY NOT BE ADOPTED: 1. Person of legal age, unless he/she is a child by nature of the adopter or his/her spouse, or prior to the adoption, said person has been consistently considered and treated by the adopter as his/her own child during minority; 2. An alien with whose government the Philippines has no diplomatic relations; and 3. A person who has already been adopted unless such adoption has been previously revoked or rescinded. 

Exceptions:

1. If one spouse seeks to adopt the legitimate child of the other; 2. If one spouse seeks to adopt his or her own illegitimate child. Provided, the other spouse signified his consent thereto; or 3. If the spouses are legally separated from each other. WHO MAY NOT ADOPT: 1. Guardian with respect to the ward prior to the approval of final accounts rendered upon the termination of their guardianship relation; and 2. Person convicted of a crime involving moral turpitude. (Article184 of the Family Code)



Petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for a change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. A certification of non-forum shopping shall be included pursuant to Rule 7, Sec. 5 of the 1997 Rules of Civil Procedure.

PROCEDURE: 1. No petition for adoption shall be set for hearing unless a licensed social worker has made a CASE STUDY of the adoptee, adopter and the biological parents. 2. No petition for adoption shall be finally granted until the adopter/s has/ have been given by the court a supervised

trial custody period for at least 6 months. 3. After the publication of the order of hearing, and no opposition has been interposed to the petition, a decree of adoption shall be entered stating the name by which the child is to be known. 4. An amended birth certificate shall be issued. The original birth certificate shall be stamped “Cancelled” and shall be sealed in the Civil Registry Records. SUPERVISED TRIAL CUSTODY:  Refers to a period of time (at least 6 months) during which a social worker oversees the adjustment and emotional readiness of both adopter/s and adoptee in stabilizing their filial relationship.  The period may be reduced or parties may be exempted if it be for the best interest of the adoptee. EFFECTS OF ADOPTION: 1. Parental Authority: Vested unto the adopter/s; All legal ties between biological parents and the adoptee shall be severed, except when biological parent is spouse of adopter; 2. Status: Adoptee shall be considered legitimate child of adopter for all intents and purposes; 3. Use of Surname: Adoptee is entitled to use the surname of the adopter; 4. Succession: Adopter/s & adoptee have reciprocal rights of succession without distinction from legitimate filiation. (Only in legal or intestate succession) 



Citizenship is NOT acquired by the adoptee. Such acquisition partakes of the character of naturalization which is not regulated by the Civil Code but by special laws on naturalization. (Ching Leng vs. Galang, 104 Phil. 1058)

Adoption creates contractual rights.

only

civil

or

AFFIDAVIT OF CONSENT annexed to the petition, is required to be executed by the following: 1. The adoptee, if 10 years of age or over; 2. Biological parents of the child, if known, or the legal guardian, or person or government agency who has legal custody of the child;

3. The legitimate and adopted children of the adopter and of the adoptee, 10 years of age or over; 4. The illegitimate children of the adopter living with him, 10 years of age or over; 5. The spouse, if any, of the adopter or adoptee.

INTER COUNTRY-ADOPTION REPUBLIC ACT NO. 8043 INTER-COUNTRY ADOPTION – refers to the socio-legal process of adoption of Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken and the decree of adoption is issued outside the Philippines. Legally-Free Child – one who has been voluntarily or involuntarily committed to the DSWD, in accordance with the Child and Youth Welfare Code.

Where To File Petition: A verified petition must be filed with the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the InterCountry Adoption Board. WHO MAY ADOPT: 1. Any alien or Filipino citizen permanently residing abroad who is at least 27 years old; and 2. Other requirements same as R.A. 8552. Who May Be Adopted: Only a legally free child may be the subject of Inter-Country adoption. A child, under this Act, is defined as any person below 15 years of age. Who Constitute the Inter-Country Adoption Board: (Appointed by the President) 1. Secretary of the Department of Social Welfare and Development as ex officio Chairman; 2. A psychiatrist or psychologist; 3. 2 lawyers who shall have at least the qualifications of a regional trial court judge; 4. A registered social worker, and;

5. 2 representatives from nongovernmental organizations engaged in child-caring and placement activities. JUDICIAL ADOPTION

EXTRA-JUDICIAL ADOPTION

Proper in domestic adoption Under the jurisdiction of the Family Court (where adopter resides)

Proper in inter-country adoption Under the jurisdiction of the Inter-Country Adoption Board (but a petition may also be filed with the Family Court [where adoptee resides] which may turn it over to ICAB) Trial custody for 6 months in the country of adopter and is mandatory before a decree of adoption is issued (expenses are borne by the adopter) Petition for adoption only

Trial custody is in the Philippines for 6 months (but court may reduce period of exempt parties from trial custody) Petition for adoption may include prayer for change of name, or declaration that child is a foundling, abandoned, dependent or neglected child Legitimate or illegitimate child of a spouse or even a person who is of legal agemay be adopted Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed to the petition Petition must be published at least once a week for 3 successive weeks in a newspaper of general circulation in the province or city where court is situated Application is through a petition with the FC Decree of adoption issued by FC which has jurisdiction over case

Only a child legally available for domestic adoption may be the subject of inter-coutry adoption Income tax returns, police clearance, character reference, family picture, birth certificate of adopter are required to be annexed to the petition No publication requirement

Application may be through agency in foreign country and then submit to ICAB Decree of adoption issued by a foreign court

RULE 100

RESCISSION AND REVOCATION OF ADOPTION

 

Superseded accordingly by A.M. 026-02. Adoption, being in the best interests of the child, shall NOT be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for cause provided for by law. arellano law

GROUNDS 1.

2. 3. 4.

FOR REVOCATION BY ADOPTEE: Repeated physical or verbal maltreatment by the adopter despite having undergone counseling; Attempt on the life of the adoptee; Sexual assault or violence; or Abandonment and failure to comply with parental obligation. (Sec. 19)

Time Within Which To File: Petition for rescission or revocation must be filed within 5 YEARS after reaching the age of majority or if incompetent, from recovery of competency. Rule on Custody of Minors  Sections 6 & 7 of Rule 99 NOT expressly repealed by the New Rule on Adoption. 

“Best Interests of the Minor” is the yardstick to be used by the court in granting custody.



Best Interests means the totality of the circumstances and conditions as are most congenial to the survival, protection, feelings of security of the minor and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.” (Sec. 14, A.M. 0304-04-SC)

Proceedings When Parents of Child Are Separated: The question as to the care, custody and control of a child or children of their marriage must be brought before the FAMILY COURTS via petition or ancillary thereto in a pending case for legal separation or annulment of marriage. (Rule 99, Sec. 6)

Note: This pertinent Rule presupposes a judicial proceeding for the annulment of

marriage, declaration of nullity, or legal separation.

Jurisdiction & Venue of Custody Proceedings: Family Courts of the province or city where petitioner is residing. Guidelines In Awarding Custody of the Child: 1. NO child UNDER 7 years of age shall be separated from its mother, unless the court finds compelling reasons therefor. 2. If the child is OVER 10 years of age, the court shall permit the child to choose which parent he prefers to live with. Child’s preference shall be respected, unless the parent chosen is unfit to take charge of the child by reason of moral depravity, incapacity, habitual drunkenness, or poverty. 3. Order of Preference in Granting Provisional Custody: a. b. c. d. e. f.



Both parents jointly; To either parent, taking into account all relevant considerations; Paternal or maternal grandparents; Oldest brother or sister over 21 years of age; A reputable and discreet person; or To any suitable asylum, children’s home or benevolent society. The remedy of APPEAL is available against order of the court depriving the parents of the custody of their child.

Proceedings As To Abused Or Vagrant Child: This provision contemplates a situation when parents of any minor child are: 1. Dead; 2. By reason of long absence, or physical disability; 3. Cannot support it through vagrancy, negligence, or misconduct or neglect or refuse to support; 4. Treat with excessive harshness; 5. Give corrupting orders; or 6. Cause to allow the minor to engage in begging or to commit offenses contrary to law. (Rule 99, Sec. 7) Who May File: Any reputable resident of the province or city where the child is found.

Venue: This proceeding falls under the original and exclusive jurisdiction of the Family Courts. (Family Courts Act of 1997) Procedure: 1. The Family Court may issue an order requiring such parent/s or the fiscal of the province or city (if the parents are dead or cannot be found) to show cause, at a time and place fixed in the order why the child should not be taken from its parents. 2. If petition is meritorious, and that it is for the best interest of the child, that court may order commitment of the child to a suitable orphan asylum, children’s home, or benevolent society or person.

RULE ON COMMITMENT OF CHILDREN A.M. 02-A-19-SC, April 15, 2002 Purpose: This rule seeks to protect the child from all forms of neglect, abuse, cruelty or exploitation and other conditions prejudicial to his development. Commitment or “Surrender of a Child” – the legal act of entrusting a child to the care of the DSWD or any duly licensed child placement or child-caring agency or individual by the court, parent or guardian or any interested parties. Petition for Involuntary Commitment of A Child: Filed By: The Secretary of DSWD or his authorized representative or any duly licensed child-placement or child-caring agency, having knowledge of a child who appears to be DEPENDENT, ABANDONED or NEGLECTED. Duties of the Public Prosecutor: 1. Appears for and in behalf of the State; 2. To ascertain that there is due notice to all parties concerned; and 3. That there is justification for the declaration of dependency, abandonment or neglect. Voluntary Commitment of A Child To An Institution Or Individual:

This is done by the parent or guardian, which shall be made in writing, duly notarized and signed in the presence of an authorized representative of the DSWD after counseling and other services.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

8.

9.

Petition for Writ of Habeas Corpus Involving Custody of Minors: 1. Where it appears the minor is being kept from a parent by the other, or in similar situations involving other parties; and 2. Time is of the essence. Requisites: 1. Petitioner has the right to the custody over the minor; 2. The rightful custody of the minor is being withheld from the petitioner by respondent; and 3. It is for the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

A.M. 03-04-04-SC Applicability: This rule shall apply to petitions for custody of minor and writs of habeas corpus in relation thereto, where NO proceedings for annulment of marriage or declaration of nullity, or legal separation being filed in the Family Courts. WHO MAY FILE: Petition for the rightful custody of a minor may be filed by any person claiming such right. WHERE: Family Courts of the province or city where petitioner resides or where the minor may be found. Factor To Be Considered Mainly In Determining Custody: The courts shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare.

Where To File: Family Court – where petitioner resides or minor may be found; writ enforceable only within its territorial jurisdiction (judicial region). Regular Regional Trial Court – if no Family Court or its Presiding Judge is absent. Supreme Court or Court of Appeals – enforceable within the entire country. Writ returnable to the Family Court or any regular courts where petitioner resides or minor may be found, for proper determination of custody. 

Court Shall Also Consider: 1. Any extrajudicial agreement respecting the rights of the minor, to maintain direct contact with the non-custodial parent; 2. The desire and ability of parent to foster an open and loving relationship between the minor and the other parent; 3. Health, safety and welfare of the minor; 4. Any history of child or spousal abuse by the person seeking custody or who has had filial relationship with the minor; 5. The nature and frequency of contact with both parents; 6. Habitual use of alcohol or regulated substances; 7. Marital misconduct;

The most suitable environment for the holistic development and growth of the minor; or Preference of the minor over 7 years of age. arellano law

The case of Orda vs. CA, 192 SCRA 768, prohibiting the Court of Appeals from referring the petition for habeas corpus to the trial court may have been abandoned by this pertinent Rule. 

The writ of habeas corpus is the proper legal remedy to enable the parents to regain custody of a minor daughter, even though the latter be in the custody of a third person of her own free will. (Sombong vs. CA, 252 SCRA 662)

RULE 101

HOSPITALIZATION OF INSANE PERSONS

Venue: The proceeding is instituted in the RTC of the province where the person alleged to be insane is found.

detaining another and commanding him to produce the body of a person at a certain time and place with the day and the cause of his capture or detention.

Who May File: It shall be filed by the Director of Health or the present authorized officer, where in his opinion, such commitment is for public welfare or for the welfare of the person who, in his judgment is insane, and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane.



Commitment of an Insane Appointment of a Guardian:

INSTANCES

Person

vs.

Commitment

Appointment

Primarily for the purpose of protecting the community at large and in the nature of police regulation

Purpose is for the protection of the person and estate of the insane

Insanity – a condition of complete deprivation of intelligence, or the power to discern or that there is total deprivation of reason.  Sec. 1 of Rule 101 recognizes the capacity of a Director to determine whether or not a person is insane.  It is the duty of the provincial or city fiscal to prepare a petition for the Secretary of Health and to represent him in court. (Rule 101, Sec 5)

Notice of Hearing To Be Given To: 1. Person alleged to be the insane; and 2. The one having charge of him, or on such of his relatives residing in the province or city.

RULE 102

HABEAS CORPUS HABEAS CORPUS – a high prerogative writ considered as an exceptional remedy to release a person whose liberty is illegally restrained, such as when the constitutional rights of a person are disregarded. WRIT OF HABEAS CORPUS – an order by a competent court directed to the person

Summary in nature because it is attended with unusual dispatch.

Purpose: 1. To obtain immediate relief from illegal confinement; 2. To liberate those who may be imprisoned without sufficient cause; and 3. To deliver them from unlawful custody. WHERE THE WRIT OF HABEAS CORPUS MAY LIE: 1. In all instances of illegal detention whereby a person is deprived of his liberty. 2. In cases where the rightful custody of the person is withheld from the person who is legally entitled thereto. WHO MAY AVAIL OF THE WRIT: 1. Those deprived of their liberty (through illegal confinement); 2. Those illegally detained from rightful custody of the person entitled thereto; 3. Those deprived of their constitutional right resulting in restraint of a person; 4. Those upon whom a sentence was imposed by a court without jurisdiction; and 5. Those upon whom an excessive penalty has been imposed, as such, sentence is void as to such excess. WHO MAY GRANT THE WRIT: 1. Supreme Court or any member thereof; 2. Court of Appeals or any member thereof; 3. Regional Trial Court or any judge thereof; and 4. MTC, in the absence of RTC judges, in the exercise of SPECIAL jurisdiction. REQUISITES OF APPLICATION: 1. The application shall be by petition signed and verified either by the party for whose relief it is intended, or by some other person on his behalf; and 2. Allegations in the Petition: a.

The person in whose behalf the application is made is imprisoned or restrained of his liberty;

b.

c. d.





Officer or name of the person by whom he is imprisoned or restrained (or if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended); Place where he is imprisoned or restrained, if known; and Copy of the commitment or cause of detention of such person, if it can be procured without any legal authority, such fact shall appear.

3. Person is suffering from imprisonment under lawful judgment. Petition for Habeas Corpus Is Not Proper When: 1. Asserting or vindicating denial of right to bail; 2. Correcting errors in appreciation of facts/law; and 3. When the trial court has jurisdiction 

The release of a person illegally detained, whether permanent or temporary renders the petition for habeas corpus moot and academic, UNLESS there are restraints attached to such release which precludes freedom of action, in which case, the court can still inquire into the nature of his involuntary restraint. (Villavicencio vs. Lukban, 39 Phil. 778)



A writ of habeas corpus may be used with the writ of certiorari for the purpose of review. The former reaches the body and jurisdictional matters but not the record; the latter reaches the record but not the body. (Galvez vs. CA, 237 SCRA 685)

A writ of habeas corpus will not be granted when the confinement is or has become legal, although such confinement was illegal at the beginning. (Matsura vs. Director of Prisons, 7 Phil. 1050)

Most important allegation is the restraint of liberty; such restraint should be actual and effective and not merely nominal or moral; however actual confinement is not necessary.



KINDS OF WRIT OF HABEAS CORPUS: 1. Preliminary Citation – Order issued to gov’t officer having the person in his custody to show cause why the writ of habeas corpus should not be issued (The detention must not be patently illegal). 2. Peremptory Writ – issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable. Preliminary Citation

Peremptory Writ

Only requires respondent to appear & show cause why a peremptory writ should not be granted.

Unconditionally commanding respondent to have the body of the detained person appear before the court at a time and place therein specified.

When Writ Not Allowed Or Person Not Discharged: 1. Person alleged to be restrained of his liberty is in custody of an officer under process issued by court or judge or by virtue of a judgment or order of a court of record; 2. Person is charged with or convicted of an offense in the Philippines; and

[Please see Comparative Chart on Habeas Corpus, Writ of Habeas Data and Writ of Amparo on page 152]

RULE 103

CHANGE OF NAME NAME – a word or combination of words by which a person is known or identified. Venue: The petition shall be filed in the RTC of the province in which he resides. 

The nature of the proceeding is in rem; thus, strict compliance with publication is necessary.

General Rule: No entry in the civil registry

shall be changed or corrected without a judicial order. Exception: In case of clerical or typographical errors and change of the first name or nickname which can be corrected or changed by the concerned city or municipal registrar or consul general in accordance with RA 9048. PROCEDURE: A. Form:

Petition must be signed and verified by the person desiring to change his name or some other person in his behalf. 

B.

Distinctions Between Rule 103 and Rule 108 in Relation to R.A. 9048:

Verification of the petition for change of name is not a jurisdictional but a formal requisite. Its non-compliance does not necessarily render the pleading fatally defective. (Oshito vs. Republic, 19 SCRA 700)

Change Of Name Involves substantial changes

Contents: 1. Petitioner has been a bonafide resident of the province or city where the petition is filed for at least 3 years prior to the date of filing; 2. The cause for which the change of name is sought; and 3. The new name asked for.

C. Publication of the Order of Hearing:  For 3 successive weeks in a newspaper of general circulation.

Cancellation Or Correction Of Entries

An appropriate adversary proceeding

An appropriate summary proceeding

Requires judicial order

Directed or changed by the city or municipal civil registrar or consul general without a judicial order

election nor within 4 months after the last publication of the notice.

E. Judgment

petitioner's own use of unauthorized alias); 4.

5.

Having continuously used and been known since childhood by a Filipino name, unaware of his alien parentage; Sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith, without prejudice to public interest and not for a fraudulent purpose.

Insufficient Grounds for the Change of Name: 1. Separation of spouses; 2. No proof of prejudice by use of official name; 3. Mere use and known by different name; 4. No proof that the true name evokes derisive laughter.

Involves clerical or typographical errors such as those which are visible to eye or obvious to the understanding and involves a harmless or innocuous change

Change Of Name

D. Hearing:  Shall not be within 30 days prior to an

JUSTIFIABLE CAUSES FOR CHANGE OF NAME: 1. The name is ridiculous, dishonorable, or is extremely difficult to write or pronounce; 2. The change results as a legal consequence, as in legitimation; 3. The change is necessary to avoid confusion (not confusion caused by

Cancellation Or Correction Of Entries

RULE 107

ABSENTEES Period To File A Declaration of Absence: 1. after the lapse of 2 years from disappearance without any news from him or from the receipt of the last news; or 2. 5 years in case the absentee has left a person in-charge of the administration of his property. WHO MAY FILE: 1. The spouse present; 2. The heirs instituted in a will, who may present an authentic copy of the same; 3. The relatives who may succeed by the law of intestacy; or 4. Those who have over the property of the absentee some rights subordinated to the condition of his death. 



It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration. (Reyes vs. Alejandro, 141 SCRA 65)

The judicial declaration of absence shall not take effect until 6 months after its publication

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

in a newspaper of general circulation. (Art. 386 Civil Code)

Venue: The residence of absentee prior to the filing of petition (Sec. 1, Role 107). Who May Be Appointed As Representative: 3. The spouse, if present, shall have preference in the appointment when there is no legal separation; 4. If the absentee left no spouse, or, if the spouse is incompetent, or, if a minor, any competent person may be appointed by the court; or 5. In case of declaration of absence, the trustee or administrator shall be appointed in the same manner as above cited. When Trusteeship Or Administration of Property Shall Cease Upon the Order of the Court: 1. Absentee appears personally or by means of an agent; 2. Death of the absentee is proved and his testate or intestate heirs appear; and 3. Third person appears, showing by proper document that he has acquired the absentee's property by purchase or other title. Absentee

Beyond 7 years (absence of 4 years under extraordinary circumstances)

Scope: RULE 108 applies to substantial changes or correction of entries in the civil registry, which is an APPROPRIATE ADVERSARY proceeding. R.A. 9048 & Its Implementing Rules apply to changes or correction of clerical errors of a harmless and innocuous nature, which is an administrative proceeding. It is also regarded as an APPROPRIATE SUMMARY proceeding. Who May File: The petition may be filed by any person interested in an act, event, order or decree concerning the civil status of persons, which has been recorded in the civil register. 

Venue: The proceeding is instituted in the RTC of the province where the civil registry is located.

Consequence

0 years to 2 years 2 years to 7 years

Note: This Rule is modified accordingly by R.A. 9048, i.e. Clerical Error Law (infra) and its Implementing Rules, allowing corrections in the civil register without the need of judicial order.

Petition for declaration of absence may be filed Considered dead for all intents and purposes, except for purposes of succession

For purposes of marriage: 4 years continuous absence shall be sufficient for the present spouse to remarry (2 years only under extra ordinary circumstances)

RULE 108

Entries Subject To Correction & Cancellation: 1. Births; 2. Marriages; 3. Deaths; 4. Legal separations; 5. Judgments of annulments of marriage; 6. Judgments declaring marriages void from the beginning; 7. Legitimations; 8. Adoptions; 9. Acknowledgments of natural children; 10. Naturalization; 11. Election, loss or recovery of citizenship; 12. Civil interdiction; 13. Judicial determination of filiation; 14. Voluntary emancipation of minor; and 15. Change of name. Parties To Be Impleaded: 1. The Civil Registrar concerned; and

2. All persons who have or claim any interest which would be affected thereby. Notice & Publication:  Notice of time and place for the hearing to be given to all persons named in the petition.  Publication is for 3 consecutive weeks in a newspaper of general circulation.

Requires judicial order



When Opposition To the Petition Is Filed: 1. 15 days counted from the notice of the petition; or 2. 15 days counted from the last publication of the notice. Petition For Change Of Name

Petition For The Correction Or Cancellation Of Entries

Petition should be filed in the RTC where the petitioner resides

Verified petition filed in the RTC where the corresponding Civil Registry is located

Civil Registrar is not a party

Civil registrar is an indispensable party. If not made a party, proceedings are null and void. Reason: He is an interested party in protecting the integrity of the public documents

Petition is filed by the person desiring to change his name

By an person interested in any ACT, EVENT, ORDER or DECREE

Change of name only

All cancellation or correction of entries

Involves substantial changes

Generally involves clerical or typographical errors such as those which are visible to eye or obvious to the understanding and involves a harmless or innocuous change

An appropriate adversary proceeding

Generally an appropriate summary proceeding

Entry is correct but petitioner desires to change the entry

All cancellation or correction of entries

Generally directed or changed by the city or municipal civil registrar or consul general without a judicial order

Petition for change of name and petition for cancellation or correction of entries are distinct proceedings. Hence, a party cannot change name and correct an entry in a single petition without satisfying the jurisdictional requirement. 

A petition for correction is an action in rem. x x x It is the publication of such notice that brings in the whole world as party in the case and vests the court with jurisdiction to hear and decide. (Barco vs. CA, 420 SCRA 162)



If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. (Republic vs. Valencia [141 SCRA 462, 474) arellano law



An appropriate adversary suit or proceeding is one where the trial court has conducted, proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. (Eleosida vs. Local Civil Registrar of Quezon City, 382 SCRA 22)

CLERICAL ERROR LAW R.A. NO. 9048  



A surname CANNOT be the subject of a petition for change of name under this procedure. Correction of clerical or typographical error shall be availed only once with respect to particular entry or entries in the same civil registry of record. This procedure is SUMMARY and ADMINISTRATIVE.

SALIENT FEATURES: 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname:



No entry in a civil registry shall be changed or corrected without a judicial order, EXCEPT for clerical or typographical errors and change in the first name or nickname which can be corrected by the concerned city or municipal civil registry or consul general.

2. Clerical or Typographical Errors:  Refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding and can be corrected or changed only by reference to other existing record or records, PROVIDED that NO CORRECTION must involve the change of nationality, age, status, sex of the petitioner. 3. Who May File and Where: a. A person shall 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; b. If petitioner had migrated to another place in the country and would be impractical to file the same, it may be done in the local civil registrar of the place where he is presently residing; two (2) local civil registrars concerned will communicate to facilitate the petition; and c. If petitioner is in a foreign country, file in the nearest Philippine Consulate. 4. Grounds: a. Petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write pronounce; or b. The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicity known by that first name or nickname to avoid confusion. 5. Form and Contents:

a. In affidavit form duly subscribed and sworn to by the applicant. Setting forth the facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated; b. Petitioner shall state the particular erroneous entry of entries which are sought to be corrected and/or the change sought to be made; c. The petition shall be supported with the following documents: i. A certified true machine copy of the certificate or of the page or of the registry book containing the entry or entire sought to be corrected or changed. ii. At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and iii. Other documents which the petitioner of the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition. d. The petition shall be published at least once a week for 2 consecutive weeks in a newspaper of general circulation; e. Petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record; f. The petition and its supporting papers shall be filed in 3 copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General, and the third copy of the petitioner.

RULE 109

APPEALS IN SPECIAL PROCEEDINGS

WHO MAY APPEAL:  Only interested persons may be allowed to appeal. A stranger having neither material nor direct interest in a testate or intestate proceeding has no right to appeal from any order issued therein. MODE OF APPEAL: General Rule: In special proceedings, the period of appeals generally is 30 days, a record on appeal being required. Exception: Habeas corpus, where appeal

must be within 48 hours. ORDERS OR JUDGMENTS FROM WHICH APPEALS MAY BE TAKEN: 1. Allowance or disallowance of will; 2. Determination of the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; 3. Allowance or disallowance, in whole or in part, of any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; 4. Settlement of the account of an executor, administrator, trustee or guardian; 5. Orders constituting, in proceedings relating to the settlement of the estate of a deceased person, or the administration of the trustee or guardian, a final determination in the lower court, of the rights of the party appealing EXCEPT that NO appeal shall be

allowed from the appointment of a special administrator; and 6. Final order or judgment rendered in the case and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration. 

The enumeration is not exclusive.

ORDERS NOT APPEALABLE: 1. Order directing administrator to take action to recover amount due to the estate, being purely interlocutory; 2. Order made in administration proceedings relating to inclusion or exclusion of items in the inventory of executor or administrator; and 3. Order appointing a special administrator, being merely incidental to judicial proceedings. When Advance Distribution of the Estate Is Allowed:  Court may permit distribution of the estate among the heirs or legatees, notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, under the following conditions: a. Such part distributed is not affected by the controversy or appeal; and b. Upon compliance with Rule 90 of the Rules of Court. arellano law

COMPARATIVE CHART ON HABEAS CORPUS, WRIT OF HABEAS DATA AND WRIT OF AMPARO Habeas Corpus Nature

Remedy in all cases of illegal confinement and/or detention.

Writ of Habeas Data Remedy against violation of right to privacy in life, liberty or security

Writ of Amparo Remedy against all violation of right to life, liberty and property.

(encroachment of government to right to privacy and communication).

Ground

A. Deprivation of liberty B. Withholding of lawful custody

Habeas Corpus Petitioner

Person confined or detained pr any interested person.

Gathering, collecting or storing of date or information regarding person, family, home and correspondence. Writ of Habeas Data

Any unlawful act or omission in violation of the right to life, liberty and property.

Writ of Amparo

 Any member of the

 Any member of the

immediate family

immediate family

 Ascendant, descendant or collateral relative within the 4th civil degree of consanguinity

 Ascendant, descendant or collateral relative within the 4th civil degree of consanguinity

 Any concerned citizen, organization, association in the absence of the first 2 Respondent

▪ Public Officer

 Private Individual (Exception to special proceedings that there is no respondent)

Jurisdiction

Concurrent – RTC, CA, Sandiganbayan and SC MTC – in the exercised of its special jurisdiction in the absence of RTC

 Public Official or Employee

▪ Public Official or Employee

 Private Individual or Entity

 Private Individual or Entity Concurrent – RTC, CA, Sandiganbayan and SC

Concurrent – RTC, CA, Sandiganbayan and SC

Judge Enforcement of Writ

Within the judicial district

Enforced anywhere

Enforced anywhere

Venue

Residence of petitioner or where it is to be implemented

- residence of petitioner

Place where threat, act or omission was committed

-residence of respondent - place where data were gathered, collected (all at the option of petitioner)

Return (when made)

As ordered

5 working days from service

5 working days from service (72 hours was already amended)

Procedure

Hearing on the returns

Summary

Summary

Pleading

Verified Petition

Verified Petition

Verified Petition

Return (Answer)

Return

Return

(Note: There are prohibited pleadings.

(There are also prohibited pleadings.

Petition for Relief is not a prohibited pleading)

Motion to Dismiss as prohibited pleading is absolute, even on the ground of lack of jurisdiction. The remedy in this case is for the Court to dismiss the petition motu propio by reason of judicial notice of said Rule. No prohibition for Motion for New Trial because the Rule itself provides that in the case of CA, it may admit evidence based only on newly discovered evidence.

Habeas Corpus Fees (Who pays)

Interim Relief

Guilty Party (Note: Costs is pursuant to judgment. No filing fee)

None

Writ of Habeas Data No docket fee if you are indigent.

Writ of Amparo Absolutely no docket fee

(Note: Indigence must be established in the course of the hearing and not immediately when filing.)

None

▪

TPO (Temporary Protection Order

▪

Inspection Order (Similar with Rule 27 of ROC)

▪

Production Order

▪

Witness Protection Order (Similar to the rule provided for by DOJ on Witness Protection Program)

(Note: Inspection and Production Order are also available to respondents)

Judgment

No time frame

10 days from submission

10 days from submission

(Different from the return and writ)

Appeal

48 hours

Final Judgment

▪

To give custody to person entitle thereto

▪

That person be relieved since confinement is illegal

15 days

15 days

Mode: Rule 45 on pure question of law

Mode: Rule 45 on both questions of law and fact (exception to Rule 45 as such rule covers only question of law)

Review, revise or destruction of subject data

Directed to extra-judicial killings and forced disappearances.

CRIMINAL PROCEDURE

CRIMINAL PROCEDURE  method fixed by law or the Rules of Court for the apprehension and prosecution of persons accused of any criminal offense and for their punishment in case of conviction.

CONSTRUCTION  Criminal procedure is a penal statute and as such it should be construed strictly.  Penal statutes, substantive and remedial or procedural are construed strictly or liberally in favor of the accused. CRIMINAL JURISDICTION  is the power of the State to try and punish a person for violation of its penal laws.  Is the authority to hear and try a particular offense and impose the punishment for it. (People v. Mariano, G.R. No. L-40527, June 30 1976)

Requisites for a Valid Exercise of Criminal Jurisdiction: 1. Jurisdiction over the subject matter  The offense is one which the court is authorized to take cognizance of. 2. Jurisdiction over the territory  The offense must have been committed within its territorial jurisdiction 3. Jurisdiction over the person of the accused



The person charged with the offense must have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court. (Cruz v. CA, 388 SCRA 72)

DETERMINATION OF CRIMINAL JURISDICTION 1) By the allegations in the complaint or information not by the results of proof or by the trial courts’ appreciation of the evidence presented. 2) By the law in force at the time of the institution of the criminal action. Once vested, it cannot be withdrawn by: a. A subsequent valid amendment of the information; or b. A subsequent statute amendatory of the rules of jurisdiction. JURISDICTION OF COURTS a. Municipal Trial Courts – imposable imprisonment of 6 years and below. b. Regional Trial Courts – imposable imprisonment of above 6 years  This is regardless of the amount of imposable fine. JURISDICTION BASED ON PENALTY IMPOSED The RTC has jurisdiction over offenses punishable by imprisonment exceeding 6 years.

The MTC has jurisdiction over offenses punishable by imprisonment for a period of 6 years and less.

Regardless of its penalty, the jurisdiction falls within the RTC (People vs. Morales, G.R. No.

JURISDICTION WHERE FINE IS THE ONLY PENALTY The RTC has jurisdiction where the fine is more than 4,000 pesos except in cases of criminal negligence involving damage to property which falls under the exclusive original jurisdiction where the fine is 4,000 pesos or less.

Note: Where the offense is within its exclusive competence by reason of the penalty prescribed therefore, an inferior court shall have jurisdiction to try and decide the case irrespective of the kind and nature of the civil liability arising from the said offense. (Legados vs. de Guzman, G.R. No. 35285, Feb. 20, 1989). Also, the additional penalty for HABITUAL DELINQUENCY is not considered in determining jurisdiction because such delinquency is not a crime.

JURISDICTION OVER COMPLEX CRIMES Jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime. It must be prosecuted integrally and must not be divided into component offenses which may be made subject of multiple information brought in different courts. (Cuyos vs. Garcia G.R. No. L46934, April 15, 1988)

JURISDICTION OVER CONTINUOUS CRIMES Continuing offenses are consummated in one place, yet by the nature of the offense, the violation of the law is deemed continuing (e.g. estafa and libel). As such, the courts of the territories where the essential ingredients of the crime took place have concurrent jurisdiction. But the court which first acquires jurisdiction excludes the other courts. JURISDICTION OVER CRIMES PUNISHABLE BY DESTIERRO Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the Municipal Trial Court, considering that in the hierarchy of penalties under Article 71 of the Revised Penal Code, destierro follows arresto mayor which involves imprisonment. (People vs. Eduarte, G.R. No. 88232 February 26, 1990)

JURISDICTION OVER LIBEL CASES Although punishable by prision correctional, the jurisdiction falls within the RTC. (People vs. MTC of Quezon City, G.R. No. 123263, Dec. 16, 1996)

JURISDICTION OVER VIOLATIONS OF DANGEROUS DRUGS ACT

126621, Dec. 12, 1997)

CRIMINAL JURISDICTION OF SANDIGANBAYAN  Offenses or felonies whether simple or complexed with other crimes committed by the public officials and their employees in relation to their office. If the last element, namely “in relation to his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the Sandiganbayan.  The offense is committed “in relation to the office” if the offense intimately connected with the office of the offender and perpetrated while he was in the performance of his official functions, or when the crime cannot exist without the office, or the office is a constituent element of the crime as defined in the statute. Officials under the exclusive jurisdiction of the Sandiganbayan 1. Those expressly enumerated in PD 1606, as amended by RA 8249; Violations of RA 3019 (Anti-Graft and Corrupt Practices Act), RA 1379 and Chapter 2, Sec. 2, Title 7, Book 2, RPC. 2. Officials of the executive branch, occupying salary grade 27 and higher. 3. Provincial governors vice governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads. 4. City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers and other city department heads.

5. Officials of the diplomatic service occupying the position of consul and higher. 6. Philippine army and air force colonels, naval captains, and all officers of higher rank. 7. Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintendent or higher. 8. City and provincial prosecutors and their assistants and officials and prosecutors in the Office of the Ombudsman and special prosecutors. 9. Presidents/directors/trustees/managers of GOCCs, state universities or educational institutions/foundations. 10. Members of Congress and officials thereof classified as Grade 27 and up. 11. Members of the Judiciary, without prejudice to Constitutional provisions. 12. Chairmen and members of Constitutional Commissions, without prejudice to Constitutional provisions. Exemptions: 1. Election Offenses – It is the Regional Trial Court that has jurisdiction as provided for in the Omnibus Election Code even if they are committed by public officers classified as Grade 27 and higher and in relation to their offices. 2. Court Martial Cases – Offenses committed by members of the Armed Forces and other persons subject to military law are cognizable by court martial if such offenses are “service connected” as expressly enumerated in RA 7055. JURISDICTION OF FAMILY COURTS RA No. 8369 establishing the Family Court granting them exclusive original jurisdiction over child and family cases, namely: Criminal cases where one or more of the accused is below 18 years of age but not less than 9 years of age or where one or more of the victim is a minor at the time of the commission of the offense, provided that if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence shall be suspended without need of an application pursuant to

the “Child and Youth Welfare Code or PD 603. KATARUNGANG PAMBARANGAY (PD 1508) General Rule: Parties have no power to enter into amicable settlement as regards crimes. Exception: Offenses punishable by imprisonment of less than 30 days or a fine not exceeding P200. General Rule: If parties are resident of the same barangay then settle through the Lupon of the Barangay. Exceptions: 1. If residents are from different barangays but in the same city/municipality, then in the barangay where respondent or any of the respondents actually resides, at the complainant’s election. 2. All disputes which involve real property (or any interest therein) shall be brought in the barangay where the real property (or any part thereof) is situated. The Lupon has NO authority over disputes: 1. Involving parties who actually reside in barangays of different cities/municipalities, except where such barangays adjoin each other. 2. Involving real property located in different municipalities. Jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime.

RULE 110

PROSECUTION OF OFFENSES INSTITUTION OF CRIMINAL ACTIONS (Rule 110, Sec. 1)

A. By filing a COMPLAINT with the proper officer:

1.

Where a Preliminary Investigation is required pursuant to Sec. 1 of Rule 112 (Rule 110, Sec. 1a)  Preliminary Investigation is required to be conducted before the filing of a complaint or information for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to fine. (Rule 112, Sec. 1)

In case of summary procedure, it is discretionary upon the Prosecutor if he wants to conduct a Preliminary Investigation. 2. In Metro Manila and other chartered cities outside Metro Manila, unless otherwise provided in their charters (Rule 110, Sec. 1b) 

PROPER OFFICER  person authorized to conduct the requisite preliminary investigation (Rule 112, Sec.2). B. By filing a COMPLAINT/INFORMATION with the MTC and MCTC: 1. Where Preliminary Investigation is not required. 2. Outside Metro Manila and not a chartered city. 3. In case of chartered city, when charter allows it. General Rule: The filing of criminal action interrupts the running of the period of prescription of the offenses charged (even if the court where the complaint or information is filed cannot try the case on the merits. (Arambulo v. Lagui, 342 SCRA 740). Exception: If otherwise provided by special laws. REMEDIES OF OFFENDED PARTY IF PROSECUTOR REFUSES TO FILE INFORMATION 1. File an action for mandamus, in case of grave abuse of discretion. 2. Lodge a new complaint before the court having jurisdiction over the offense where there is no double jeopardy. 3. Take up the matter with the Secretary of Justice in accordance with the Revised Administrative Code.

4.

Institute an administrative charge against the erring prosecutor. 5. File criminal action against the prosecutor. 6. File civil action for damages. 7. Secure appointment of another prosecutor. General Rule: Criminal prosecutions may not be restrained by writs of prohibition or injunction (Asutilla vs. PNB, 141 SCRA 40). Exceptions: 1. To afford adequate protection to the constitutional rights of the accused; 2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of suits; 3. When there is a prejudicial question which is subjudice; 4. When the acts of the officer are without or in excess of authority; 5. When the prosecution is under an invalid law, ordinance or regulation; 6. When double jeopardy is clearly apparent; 7. When the court has no jurisdiction over the offense; 8. When it is a case of persecution rather than prosecution; 9. When the charges are manifestly false and motivated by lust for vengeance; and 10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. 11. To prevent the threatened unlawful arrest of petitioners. (Dominador vs. Sandiganbayan, 328 SCRA 292)

THE COMPLAINT OR INFORMATION shall be: (Rule 110, Sec. 2) 1. In writing; 2. In the name of the People of the Philippines; and 3. Against all persons who appear to be responsible for the offense involved.  If the accused is a corporation, no criminal action can lie against it (Time, Inc. vs. Reyes, 39 SCRA 303).  If the corporation violates the law, the officer, through whom the corporation acts, answers criminally for his acts (People vs. Campos [CA] 40 O.G. Sup. 12, 7). arellano law





A formal accusation of the type required by the statute cannot be waived and in its absence, there is nothing for the court to act upon and the court acquires no jurisdiction. While the information not quashable if not brought in the name of the People of the Philippines, if the information is grossly deficient, the same may be quashed for failure to conform to the prescribed form.

A COMPLAINT is: (Rule 110, Sec. 3) 1. A sworn written statement; 2. Charging a person with an offense; 3. Subscribed by: a. The offended party; b. Any peace officer e.g. members of the Constabulary, Police officers, Agents of NBI, etc.; or c. Other public officer charged with the enforcement of the law violated e.g. Internal Revenue Officer for violation of the NLRC, custom agents with respect to violations of the Tariff and Customs Code. 

The want of an oath is a mere defect which does not affect the substantial rights of the defendant on the merits. It is not permissible to set aside a judgment for such a defect (US vs. Bibal, 4 Phil. 369).

When a Sworn Written Complaint is Required (Hernandez vs. Albano, 2 SCRA 607)

1. If the offense is one which cannot be prosecuted de officio; a. Adultery; b. Concubinage; c. Seduction; d. Abduction or; e. Acts of lasciviousness; f. As well as defamation consisting in the imputation of any of the above crimes (Art. 360 of the RPC, Title XI, Bk II) 2. Is private in nature; or 3. Where it pertains to those cases which need to be endorsed by specific public officers. Examples: a. The City Fiscal of Manila has no authority to prosecute violations of the Anti-Dummy Law independently of the Anti-Dummy Board (Zobel vs. Concepcion, 5 SCRA 428).

b. Internal Revenue Officer for violation of the NIRC c. Custom agents with respect to violations of the Tariff and Customs Code An INFORMATION is: 1. an accusation in writing; 2. charging a person with an offense; and 3. subscribed by the prosecutor and filed with the court. (Rule 110, Sec. 4) INFORMATION

COMPLAINT

Always signed by the fiscal or authorized prosecuting officer

Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated (Rule 110, Sec. 3)

Need not be under oath - reason: prosecuting officer filing it is charged with the special duty in regard thereto and is acting under the special responsibility of his oath of office

Sworn to by person signing it

Always filed with the court

May be filed either with the fiscal’s office or the court.

Persons Authorized to File Information 1. Provincial/City Prosecutor; 2. Chief State Prosecutor; 3. Ombudsman or his deputy; (Rule 112, Sec. 4, par. 3) 4.

Lawyer appointed by Sec. of Justice pursuant to Sec. 1696 of the Revised Administrative Code, as amended.

WHO MUST PROSECUTE CRIMINAL ACTIONS (Rule 110, Sec. 5) All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. 

Once a complaint/information is filed in court, any disposition of the case rests in its sound discretion. Although the fiscal retains direction and control of the prosecution of the criminal case, where it is already in court, he cannot impose his opinion on the trial (Crespo vs. Mogul, 151 SCRA 462).





The right of the offended party to institute the criminal prosecution for the commission of a public offense ceases upon the filing of the complaint in court, the fiscal taking charge of the prosecution of the suit in the name of the People until the termination thereof (Salcedo vs. Liwag, 9 SCRA 609). The determination of whether or not information should be lodged with the court lies within the exclusive realm of the prosecutor (Ogburn v. CA, 212 SCRA 483).

Conditions for a Private Prosecutor to Prosecute a Criminal Action: 1. The public prosecutor has a heavy work schedule, or there is no public prosecutor assigned in the province or city; 2. The private prosecutor is authorized IN WRITING by the Regional State Prosecutor (RSP), Provincial or City Prosecutor; 3. The authority of the private prosecutor must be approved by the court; 4. The private prosecutor shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked; and 5. In case of the withdrawal or revocation of the authority of the private prosecutor, the same must be approved by court. (Memo Circ. No. 25, April 26, 2002, Regarding Amendment to Sec. 5, Rule 110)





In appeals before the CA and the SC, only the Solicitor General is authorized to bring and defend actions in behalf of the People of the Philippines.. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the SC, the Office of the Ombudsman, through the Special Prosecutor shall represent the People of the Philippines, EXCEPT in cases filed pursuant to E.O. Nos. 1, 2, 14 and 14-A, issued in 1986, involving the ill-gotten wealth of Pres. Marcos, his wife, close relatives, etc.

(RA

8249, An Act Defining the Jurisdiction of Sandiganbayan).

PROSECUTION OF PRIVATE CRIMES Art. 360, RPC: Those crimes which cannot be prosecuted de officio and requires that the criminal action be brought at the instance of and upon complaint expressly filed by the offended party. (Rule 110, Sec. 5) 

Compliance with this is a jurisdictional requirement and not merely a formality (People vs. Sunpongco, 163 SCRA 222).



In complex crimes, where one of the component offenses is a private crime and the other a public offense, the fiscal may initiate the proceedings de oficio (People vs. Orcullo, 46 O.G., Supp.11,238).

PROSECUTION OF THE CRIMES OF ADULTERY AND CONCUBINAGE (Rule 110, Sec. 5, Par. 2)

Upon a complaint filed by the offended spouse;  The offended party must include, the guilty parties, if both are alive;  The offended party must not have consented to the offense or pardoned the offenders. 

PROSECUTION OF THE CRIMES OF SEDUCTION, ABDUCTION AND ACTS OF LASCIVIOUSNESS (Rule 110, Sec. 5, Par. 3) Upon a complaint filed by the: 1. Offended Party, even if a minor, unless she is incompetent or incapable; 2. Parents; 3. Grandparents; 4. Guardian; 5. State, if the offended party dies or becomes incapacitated before she can file, the complaint, and she has no known parents, grandparents or guardian. 

 

The prosecution of a crime of Defamation imputing to a person any of the following crimes: concubinage, adultery, seduction, abduction, rape or acts of lasciviousness can be done only by the party defamed (Art. 360, RPC). The right to prosecute these crimes shall be exclusive of all other persons and shall be exercised successively in the order provided. These crimes cannot be prosecuted in any case, if the offender has been expressly pardoned by any of them.

Rules on Pardon: a. The offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead; b. The parents, grandparents or guardian of the offended minor, in that order, CANNOT extend a valid pardon in said crimes WITHOUT the conformity of the offended party, even if the latter is a minor;

c.

If the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.



The pardon refers to that made BEFORE filing of the criminal complain in court. Pardon made after filing does not prohibit continuance of the prosecution of the offense EXCEPT in case of marriage between the offender and offended party.





B.

If the accused believes that there is a mistake in his name as set forth in the complaint or information, he should call the attention of the court about it at the time of arraignment. If he fails to do so he is estopped from raising the same question later on (People vs. Narvaez, 59 Phil. 738).

DESIGNATION

OF

THE

OFFENSE

(Rule 110, Sec. 8)

Complaint or Information Shall State: 1. The designation of the offense given by the statute;

The ACQUITTAL or DEATH of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People vs. Topiño, 35 Phil. 901).

REQUIREMENTS IN SPECIAL LAWS The prosecution for violation of special laws shall be governed by the provisions thereof (Rule 110, Sec. 5, Par. 6).



The failure to make a designation of the offense must be disregarded as constituting a mere defect in the form, not tending to prejudice any substantial right of the defendant (US vs. Li-Dao, 2 Phil. 458).

A COMPLAINT OR INFORMATION IS SUFFICIENT IF IT STATES: (Rule 110, Sec. 6) 1. The name of the accused (Rule 110, Sec. 7); 2. The designation of the offense given by the statute (Rule 110, Sec. 8); 3. The acts or omissions complained of constituting the offense (Rule 110, Sec. 8 & 9); 4. The name of the offended party (Rule 110, Sec. 12); 5. The approximate date of the commission of the offense (Rule 110, Sec. 11); and 6. The place where the offense was committed (Rule 110, Sec. 10).



The facts alleged therein, and not its title, determine the nature of the crime (People vs. Magdowa, 23 Phil. 512).



A.

When an offense is committed by more than one person, all of them shall be included in the complaint or information.

NAME OF THE ACCUSED

(Rule 110, Sec.

7)

Complaint or Information Must State: 1. The name and surname of the accused; or 2. Any appellation or nickname by which he has been or is known. 



If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record.

2. The acts or omissions constituting the offense; and 3. Qualifying and aggravating circumstances  

C.

Allegations prevail over the designation of the offense in the information. The qualifying and aggravating circumstances cannot be appreciated even if proved UNLESS alleged in the information.

CAUSE OF THE ACCUSATION

(Rule

110, Sec. 9)

1. Acts or omissions complained of as constituting the offense; and 2. Qualifying and aggravating circumstances. 



These must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient: a. To enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances; and b. For the court to pronounce judgment. Defendant cannot be convicted of an offense of which he has not been informed or for a crime higher than that alleged in the information.





D.

E.

Even if the Information filed did not allege that the complainant was 9 years old, there was substantial compliance with the constitutional mandate that an accused be informed of the nature of the charge against him when the order issued by the investigating judge, a copy of which was attached in the record of the Preliminary Investigation, clearly stated that the complainant was 9 years old (People vs. Villamor, 297 SCRA 262). Allegations in a complex crime: the allegations contained therein do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which state that one offense was a necessary means to commit the other (People vs. Alagao, 16 SCRA 879).

PLACE OF COMMISSION OF THE OFFENSE (Rule 110, Sec. 10) General Rule: The complaint or information is sufficient if it can be understood from its allegation that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court. Exception: The particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification; e.g. Theft in National Library (Art. 311, RPC). DATE OF COMMISSION OF THE OFFENSE (Rule 110, Sec. 11) General Rule: It is not necessary to state the precise date of the commission of the offense. Exception: When it is a material ingredient of the offense. E.g. Interruption of Religious Worship (Art. 132, RPC).





F.

The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for a bill of particulars. Failure to specify the exact date/time when the rape occurred does not ipso facto make the Information defective on its face. The date/time of the commission of rape is not material ingredient of said crime because the gravamen of rape is carnal knowledge of a woman, through force and intimidation (People vs. Magbanua, 319 SCRA 719).

NAME OF THE OFFENDED PARTY (Rule 110, Sec. 12)

The complaint or information must state: 1. The name and surname of the person against whom or against whose property the offense was committed; or 2. Any appellation or nickname by which such person has been or is known. 

If there is no better way of identifying him, he must be described under a fictitious name.

In Offenses against Property: 1. If the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. 2. If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. If the Offended Party is a Juridical Person: 1. State its name or any name or designation by which it is known or by which it may be identified 2. No need to aver that it is a juridical person or that it is organized in accordance with law. DUPLICITY OF THE OFFENSE

(Rule 110,

Sec. 13)

General Rule: A complaint or information must charge only one offense. Exceptions: 1. Complex crimes; 2. Special complex crimes; 3. When the other offense stated is only an ingredient or essential element of the real offense charged 4. Continuous crime or delito continuado 5. Crimes susceptible of being committed in various modes. DUPLICITY IN CRIMINAL PLEADING is the joinder of 2 or more distinct and separate offenses in the same count of an indictment or information.



Duplicity in the charge is a ground for a motion to quash, but the failure to timely interpose any objection on this ground constitutes waiver.

AMENDMENT OR SUBSTITUTION OF THE INFORMATION OR COMPLAINT (Rule 110, Sec. 14)

Rules on Amendment: 1. Before plea - formal and substantial amendments are allowed without leave of court. EXCEPTION: Amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only: a) upon motion by the prosecutor; b) with notice to the offended party; c) with leave of court Note: In (b), the rule does not provide if consent of the offended party is necessary.

2.

After plea and during trial – only formal amendments, provided: a) leave of court is obtained; and b) amendment is not prejudicial to the rights of the accused EXCEPTION: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, amendment as to substance may be made but there is a need for another arraignment of the accused for the amended information.

RULE ON SUBSTITUTION: May be made: 1. At any time before judgment; and 2. When mistake has been made in charging the proper offense. Procedure: 1. File a new one charging the proper offense in accordance with Sec. 11, Rule 119 Limitations: a. The accused would not be placed in double jeopardy b. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein.

2. The court shall dismiss the original complaint or information after filing of the new one. 

The court may require the witnesses to give bail for their appearance at the trial.

Distinction Between Amendment Substitution of Information/Complaint Amendment

and

Substitution

May involve either formal or substantial changes.

Involves substantial change from the original charge.

If made before plea has been entered, it can be effected without leave of court.

Must be with leave of court as the original information has to be dismissed.

When only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused.

Another preliminary investigation is needed and the accused has to plead anew to the new information.

An amended information refers to the same offense charged in the original information or to an offense which necessarily included in the original charge, hence substantial amendments to the information would be withdrawn the accused could invoke double jeopardy.

Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

A Matter of Form All that relates to the mode, form or style of expressing the facts involved, the choice or arrangement of words, and other such particulars, without affecting the substantial validity or sufficiency of the instrument or without going to the merits. (Black’s Law Dictionary)

Substantial Matter in a Complaint/Info The recital of facts constituting the offense charged and the determination of the jurisdiction of the court. (Almeda v. Villaluz, 66 SCRA 38).



Petitioner is charged as a principal in the case for murder. The addition of the phrase “conspiring, confederating and helping one another” does not change the nature of petitioner’s participation as principal in the killing; it is a mere formal amendment (Buhat vs. CA, December 17, 1996).



To amend the Information so as to change the charge from homicide to murder after the petitioner has pleaded not guilty to the former is proscribed by the 1st paragraph of Sec. 13 of Rule 110. For certainly, a charge from homicide to murder is not a matter of form; it is one of substance with very serious consequences (Dionaldo vs. Dacuycuy, 180 SCRA 736).



Petitioner in this case maintains that, having already pleaded "not guilty" to the crime of homicide, the amendment of the crime charged in the information from homicide to murder is a substantial amendment prejudicial to his right to be informed of the nature of the accusation against him. He utterly fails to dispute, however, that the original information did allege that petitioner stabbed his victim "using superior strength". And this particular allegation qualifies a killing to murder, regardless of how such a killing is technically designated in the information filed by the public prosecutor (Buhat vs. CA, December 17, 1996).

VARIANCE BETWEEN THE INDICTMENT AND THE PROOF 1. When the offense proved is less serious than, and is necessarily included in, the offense charged, the defendant shall be convicted of the offense proved. 2. When the offense proved is more serious than and includes the offense charged, the defendant shall be convicted only of the offense charged. 3. When the offense proved is neither included in nor does it include, the offense charged and is different therefrom, the court should dismiss the action and order the filing of new information charging the proper offense. (Substitution) Guide: “Always in favor of the accused.”

PLACE WHERE ACTION INSTITUTED (Rule 110, Sec. 15)

IS

TO

BE

Venue, in criminal cases, is: 1. Jurisdictional 2. Cannot be the subject of agreement 3. Ground for motion to quash if erroneously laid General Rule: Criminal action shall be instituted and tried in the court of the

municipality or territory where the offense was committed or where any of its essential ingredients occurred. Exceptions: 1. Cases originally cognizable by the Sandiganbayan, as its jurisdiction is national in scope; 2. Libel cases which may be filed or instituted at the election of the offended party, subject to the objection of the accused; 3. Continuing offenses; 4. Piracy, which is triable anywhere; 5. Extraterritorial crimes pursuant to Art. 2 of the RPC; 6. Offenses committed in a train, aircraft or other vehicle while in the course of the trip; 

The criminal action shall be instituted and tried in the court of any municipality or territory where such vehicle passed during its trip, including the place of its departure and arrival.

7. Offenses committed on board a vessel in the course of its voyage 

The criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law.

INTERVENTION OF THE OFFENDED PARTY IN CRIMINAL ACTION (Rule 110, Sec. 16)

General Rule: Offended party has the right to intervene by counsel in the prosecution of the criminal action. Exceptions: 1. Where from the nature of the crime and the law defining and punishing it, NO civil liability arises in favor of the offended party; and 2. Where the offended party has waived his right to civil indemnity OR has expressly reserved his right to institute a civil action OR has already instituted said action.

RULE 111

PROSECUTION OF CIVIL ACTION

INSTITUTION OF CRIMINAL AND CIVIL ACTIONS (Rule 111, Sec. 1) General Rule: When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action. Exceptions: 1. When the offended party waives the civil action 2. When the offended party reserves his right to institute a separate civil action; 3. When offended party institutes a civil action prior to the criminal action. 



Art. 104, RPC: The civil liability may consist of’ restitution, reparation of the damage caused or indemnification of consequential damages. Civil liability is not part of the penalty for the crime committed (Ramos vs. Gonong, 72 SCRA 565).

WHEN RESERVATION SHALL BE MADE 1. Before the prosecution starts to present its evidence; and 2. Under circumstances affording the offended party reasonable opportunity to make such reservation.

fees thereat shall constitute a first lien on the judgment awarding such damages. 3. Where the amount of damages, other than actual, is specified the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. 

No counterclaims, cross-claims or 3rd party complaints are allowed in a criminal proceeding. Any claim which would have been the subject thereof may be litigated in a separate civil action.

Rule Where the Civil Action Has Been Filed Separately and Trial Thereof Has Not Yet Commenced It may be consolidated with the criminal action upon application with the court trying the latter case.  



Should be done before judgment on the merits in the civil action. If the application is granted, the trial of both actions shall proceed in accordance with Sec. 2 of this Rule governing consolidation of the civil and criminal actions. An independent civil action cannot be consolidated with a criminal action. arellano law





Where the civil action is instituted separately, the general rules of venue in civil actions apply, except in case of libel, which has a special rule of venue. Where there is waiver/reservation, the private prosecutor disqualifies himself from the criminal proceeding.

Instances when party is not authorized to make reservation: 1. B.P. 22 cases (Rule 110, Sec. 1, Par. b) 2. Cases cognizable by Sandiganbayan 3.

(Sec. 4 of PD 1606, Sandiganbayan Act, as amended by RA 8249) Tax cases (Sec. 7, Par. b, No. 1, RA 9282, An Act Expanding the Jurisdiction of CTA)

RULES ON FILING FEES OF CIVIL ACTIONS DEEMED INSTITUTED 1. No filing fees are required for actual damages, except in criminal actions for B.P. 22 2. When the civil liability is sought to be enforced by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing

Rules on Civil Aspect in Cases Involving Violation of B.P. 22 1. The corresponding civil action shall be deemed instituted. 2. No reservation to file such civil action separately shall be allowed. 3. The filing fees shall be paid in full based on the amount of the check involved, which shall be considered as the actual damages claimed. 4. Additional filing fees shall be paid if other forms of damages are sought. If the amounts thereof are not alleged but any of these damages are subsequently awarded, the filing fees based on the amount awarded shall constitute a first lien on the judgment. DOCTRINE OF PRIMACY OF CRIMINAL CASES OVER CIVIL ACTIONS Rules: 1. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted

until final judgment in the criminal action. 2. 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. 

Suspension shall last until final judgment is rendered in the criminal action.

Exceptions to the Rule: 1. Independent civil actions; 2. Prejudicial civil actions; 3. When the civil case is subsequently consolidated with the criminal action; 

 

Done before judgment on the merits is rendered in the civil action, upon motion of the offended party. Not mandatory Evidence already adduced in the civil action deemed automatically reproduced in the criminal action (Rule 111, Sec.2, par.2)

4. Where the civil action does not arise from the offense charged in the criminal case 

Even if the civil action is suspended, the court wherein it is pending can issue auxiliary writs therein, such as preliminary injunction or attachment, appointment of receivers and similar processes which do not necessarily go into the merits of the case (Babala vs. Abano, 90 Phil. 827).

When ACQUITTAL IN A Criminal Action BARS The Civil Action Arising Therefrom 1. The judgment of acquittal holds that the accused did not commit the acts imputed to him. 2. The accused was not guilty of criminal, or even civil negligence. When ACQUITTAL In Civil Case DOES NOT BAR Civil Action 1. Where acquittal is based on reasonable doubt; 2. Where the assessed liability is not criminal but only civil in nature; 3. Where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted. 

The extinction of the penal action does not carry with it extinction of the civil action. 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 (Sapiera vs. CA, 314 SCRA 370).

RULES ON INDEPENDENT CIVIL ACTIONS (Rule 111, Sec.3) 1. Involve cases provided in Arts. 32, 33, 34 & 2176 of the Civil Code. 2. The civil liability under all the said articles arise from the same act or omission of the accused. 3. Only preponderance of evidence is required. 4. The offended party may not recover damages twice for the same act or omission. 5. May be brought by the offended party during the pendency of the criminal case. Note: There is no more need for a reservation (Casupanan vs. Laroya, 388 SCRA 28). General Rule: Independent civil action is deemed instituted with criminal action. Exception: When the civil action is filed prior to criminal action. Exception to the Exception: When the prosecution of independent civil action is parallel to the prosecution of criminal action, there is neither suspension of independent civil action nor consolidation thereof. EFFECT OF DEATH ON CIVIL ACTIONS (Rule 111, Sec. 4)

If accused dies: 1. Before arraignment – the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. 2. After arraignment and during the pendency of the criminal action – the death of the accused shall extinguish the civil liability arising from the delict. 

However, the independent civil action instituted under Sec. 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be (People vs. Bayotas, G.R. No. 102007 September 2, 1994)

JUDGMENT IN CIVIL ACTION NOT A BAR. A final judgment rendered in a civil action absolving the defendant from civil

liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. (Rule 111, Sec. 5)

SUSPENSION BY REASON OF PREJUDICIAL QUESTION (Rule 111, Sec. 6) PREJUDICIAL QUESTION is that which arises in a case, the resolution of which is the logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It must be determinative of the case before the court but the jurisdiction to try and resolve must be lodged in another court or tribunal. ELEMENTS OF PREJUDICIAL QUESTION: 1. Previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. 2. The resolution of such issue determines whether or not the criminal action may proceed. (Rule 111, Sec. 7) 

Illustration – Where the husband was charged with bigamy by the 2nd wife, a civil action previously brought by said husband for the annulment of the marriage on the ground that he was forced to contract said subsequent marriage is prejudicial to the criminal action.

WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION (Rule 111, Sec. 6) 1. During Preliminary Investigation – in the office of the prosecutor or the court conducting the preliminary investigation. 2. During Trial – in the same court trying the criminal action at any time before the prosecution rests. 

The doctrine of prejudicial question does not apply where no civil but only administrative case is involved.

RULE 112

PRELIMINARY INVESTIGATION PRELIMINARY INVESIGATION PRELIMINARY INVESTIGATION is an inquiry or proceeding to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. WHEN PRELIMINARY INVESTIGATION IS REQUIRED General 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 4 years, 2 months and 1 day without regard to the fine. Exception: Sec. 7, Rule 112 (upon inquest proceedings, or affidavit of the offended party or arresting officer or person in lawful warrantless arrests) Note: On cases governed by the Rules on Summary Procedure, the prosecutor may not conduct preliminary investigation anymore.

INQUEST – The determination of the prosecutor whether to charge the accused or not when there is a lawful warrantless arrest. Purposes of Preliminary Investigation: 1. To inquire concerning the commission of a crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if, there is probable cause for believing him guilty, that the State may take the necessary steps to bring him to trial; 2. To preserve the evidence and to keep the witnesses within the State’s control; 3. To determine the amount of bail, if the offense is bailable.

Preliminary Investigation

Preliminary Examination

Executive function.

Judicial function.

Conducted by prosecutor.

Conducted by the judge.

Objective: find probable cause for indictment.

Objective: to find whether or not he should issue a warrant of arrest.

End Goal: Resolution.

End Goal: Warrant of Arrest.

NATURE OF RIGHT TO PRELIMINARY INVESTIGATION  Not part of the due process clause of the Constitution but is purely statutory. However, if the law provides for preliminary investigation and such right is claimed by the accused, a denial thereof is a denial of due process and prohibition will lie against the trial court or, if a judgment of conviction has already been rendered, on appeal the same shall be reversed and the case remanded for preliminary investigation.  



  

The right thereto can be invoked only when so established and granted by law. Since it is a personal right, the same may be waived expressly or impliedly. If waived, the fiscal may forthwith file the corresponding information with the proper court. The absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused before entry of his plea. Merely inquisitorial; Not a trial of the case on the merits. Can be conducted ex parte if the respondent cannot be subpoenaed or does not appear after due notice. Does not place the person against whom it is taken in jeopardy.

File a complaint-affidavit With all supporting documents and affidavits 2 copies plus over and above number of respondents

Office of the City Prosecutor The case will be raffled among all the Asst. Prosecutors to determine who will conduct the preliminary investigation

Within 10 days after filing complaint-affidavit, the prosecutor shall issue a subpoena

Within 10 days from receipt of complaint-affidavit, the respondent will file a counteraffidavit and other supporting documents.

If respondent cannot be subpoenaed or if subpoenaed but does not submit his counteraffidavit within 10 days

Clarificatory hearing (optional)

Resolution of the investigating prosecutor Only recommendatory to City prosecutor Must include an Information

City Prosecutor

PROCEDURE IN PRELIMINARY INVESTIGATION (Rule 112, Sec. 3)

Approve Resolution

Disapprove Resolution

File Information with court

Information may be dismissed

OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION: 1. Provincial or city prosecutors and their assistants;

2. National and Regional State prosecutors; and 3. Other officers as may be authorized by law (e.g. COMELEC on criminal violations of the election law, the office of the Tanodbayan or its deputies in cases cognizable by the Sandiganbayan, lawyers appointed as special prosecutor under Sec. 1686, of the Revised Administrative Code)

1. Prepare the resolution and information; 2. Certify under oath in the information that: a. He, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; b. That there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; c. That the accused was informed of the complaint and of the evidence submitted against him; d. That he (accused) was given an opportunity to submit controverting evidence. 3. Within 5 days from his resolution, forward the record of the case to the: A. Provincial or City Prosecutor; or B. Chief state Prosecutor, or c. To the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of original jurisdiction.

IMPORTANT: A.M. No. 05-8-26-SC  



removed the conduct of Preliminary Investigation from Judges of the First Level Courts starting October 3, 2005 MTC, MTCC, MeTC and MCTC Judges can continue with the preliminary investigation of pending cases, which should be terminated not later than Dec. 31, 2005. The Ombudsman is given primary jurisdiction over cases cognizable by the Sandiganbayan. He is authorized to take over at any stage, from any investigating body, the investigation of such cases; a power not given to investigative bodies (DOJ vs. Liwag, 451 SCRA 83). arellano law

Guidelines as to the Clarificatory Hearing: a. The hearing may be set only when there are facts and issues to be clarified from a party or a witness. b. The parties can be present at the hearing but without the right to examine or cross-examine. c. The parties may submit to the investigating officer questions which may be asked to the party or witness concerned. d. The hearing shall be held within 10 days from submission of the counteraffidavits and other documents or from the expiration of the period for their submission. e. The hearing shall be terminated within 5 days. f. Resolution, within 10 days after investigation by investigating officer.

DUTIES OF THE INVESTIGATING PROSECUTOR (Rule 112, Sec. 4) A. If the investigating prosecutor finds CAUSE to hold the respondent for trial:

They shall act on the resolution within 10 days from their receipt thereof and shall immediately inform the parties of such action. B. If the investigating prosecutor finds NO CAUSE to hold respondent for trial - He shall recommend the dismissal of the complaint. 

A complaint or information may be dismissed by an investigating prosecutor ONLY with the prior written authority or approval of the provincial or city prosecutor; or chief state prosecutor, or the Ombudsman or his deputy.



Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, The latter may: 1. by himself, file the information against the respondent; OR 2. direct another assistant prosecutor or state prosecutor to do so without

conducting investigation.

another

preliminary

REVIEW POWER OF THE SECRETARY OF JUSTICE (DOJ Circular No. 70, July 3, 2000) 

By implication, the rule authorized the parties concerned to file a petition to the Sec. of Justice for the review of the resolution (Public Utilities Dept., Olangapo City vs. Guingona, Jr., 365 SCRA 467).

The aggrieved party may appeal to the Secretary of Justice within 15 days from receipt of the resolution of the prosecutor, or of the denial of a timely motion for reconsideration/ reinvestigation.





The Sec. of Justice may reverse the resolution and thereafter: a. Direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation; or b. Dismiss or move for the dismissal of the complaint or information (Marcelo, et al vs. CA, et al, July 5, 1993).

When appeal shall not be given due course: 1. If an information has been filed pursuant to the appealed resolution; and 2. The accused has already been arraigned.



An appeal shall not bar the filing of the corresponding information, unless otherwise directed by the Secretary.





In case appeal to the Sec. of Justice was denied and so with the motion for reconsideration, a petition for certiorari with the Court of Appeals on the ground of grave abuse of discretion is the next remedy (Filandamus Phrama, Inc. vs. CA, 426 SCRA 460).

Appeal from the Resolution of the Ombudsman Involving: A. Administrative and disciplinary cases – with the CA B. Criminal cases – with the SC WHEN ISSUE

WARRANT

OF ARREST

26-SC)

1. By the Regional Trial Court.

1. 2.

MAY

(Rule 112, Sec. 5, as amended by AM 05-8-

Within 10 days from the filing of the complaint/information, the judge shall personally evaluate: The resolution of the prosecutor; and Its supporting evidence

Judge may immediately dismiss case if evidence on record clearly fails to establish probable cause

In case of doubt on existence of probable cause: judge may  Order prosecutor to present additional evidence within 5 days from notice; and  Resolve issue w/in 30 days from filing of

If he finds probable cause, he shall issue: 1. Warrant of arrest; or 2. Commitment order if accused was already arrested pursuant to warrant issued

2. By the Municipal Trial Court.  The procedure for the issuance of a warrant of arrest by the judge shall be the same as that of the RTC.  However, without waiting for the conclusion of the preliminary investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

“SEARCHING QUESTIONS AND ANSWERS” means taking into consideration the purpose of the preliminary investigation which is whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof

and should be held for trial, such questions as may have the tendency to show the commission of the crime and the perpetrator thereof. PROBABLE CAUSE 1. An apparent state of facts found to exist upon a reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime charged. 2. Presupposes a reasonable ground for belief in the existence of facts warranting the proceedings complained of. WHEN WARRANT OF ARREST NOT NECESSARY 1. If the accused is already under detention (Rule 112, Sec. 5[c], as amended by AM 05-8-26-SC); or 2. If the complaint or information was filed pursuant to a lawful warrantless arrest (Rule 112, Sec. 6, as amended by AM 05-8-26SC); or

3. If the complaint or information was for an offense penalized by fine only. RULES IN LAWFUL WARRANTLESS ARRESTS WHERE CRIME INVOLVED REQUIRES PRELIMINARY INVESTIGATION (Rule 112, Sec. 6, as amended by AM 05-8-26-SC)

1. 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. 2. If there is no 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. OPTIONS OF ACCUSED LAWFULLY ARRESTED WITHOUT WARRANT (Rule 112, Sec. 6, as amended by AM 05-8-26-SC)

1. Before complaint or information is filed a. The person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision

of Art 125 of the RPC, as amended, in the presence of his counsel.  Art. 125, RPC: Delay in the delivery of detained persons to the proper judicial authorities b. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception. 2. After complaint or information is filed without Preliminary Investigation  The accused may, within 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. RECORDS OF PRELIMINARY INVESTIGATION The Record of Preliminary Investigation is not part of the record of the case. But it may be produced in court— 1. upon its own initiative; or 2. on motion of any party, if (a) necessary in the resolution of the case or any incident therein, or (b) when it is to be introduced as evidence in the case. (Rule 112, Sec. 7[b], as amended by AM 05-8-26-SC)

CASES NOT REQUIRING A PRELIMINARY INVESTIGATION NOR COVERED BY THE RULE ON SUMMARY PROCEDURE (Rule 112, Sec. 8, as amended by AM 05-8-26-SC)

This refers to cases within the exclusive original jurisdiction of the inferior courts but the penalty for the offense is either a. less than 4 years, 2 months and 1 day, or b. not covered by the Rule on Summary Procedure, hence no preliminary investigation is conducted, but the case has to be tried in accordance with the regular procedure in said inferior courts. 1. If filed with the Prosecutor – the prosecutor shall act on the complaint based on the affidavits and other supporting documents within 10 days from its filing. 2. If filed with the Judge – He shall act on the complaint/information within 10 days from filing by personally evaluating evidence or conducting searching questions and answer

answer for the commission of an offense (Rule 113, Sec. 1).

If he finds no probable cause

Dismiss case

Require additional evidence

If he finds probable cause, issue a. warrant of arrest, or b. commitment order, or c. summons (if he finds that there is no need to place accused under custody)

If within 10 days from submission, he still finds no probable cause, = dismiss case

REMEDIES ONCE COMPLAINT OR INFORMATION IS FILED IN COURT 1. If from inquest, right to file a motion for Preliminary Investigation. 2. If from inquest but in reality no Preliminary Investigation conducted (due to fraud, mistake, etc.), can still file motion for preliminary investigation and show you were deprived of right of preliminary investigation. 3. Warrant of arrest was issued (within 10 days from filing of complaint), whether or not there was preliminary investigation, file Motion for Determination of Probable Cause with Motion to Quash Warrant. 4. File Petition for Review with Secretary of Justice. 5. File a Motion for Reinvestigation.  Cannot pursue motion for reinvestigation where a motion for preliminary investigation was already made. 6. Rule 65.

RULE 113

ARREST

ARREST is the taking of a person into custody in order that he may be bound to

Persons Immune from Arrest 1. Members of Congress, in all offenses punishable by not more than 6 years imprisonment, while Congress is in session; 2. Heads of State; 3. Diplomatic officers and their duly registered domestics. HOW ARREST IS MADE (Rule 113, Sec. 2) 1. By an actual restraint of the person to be arrested; or 2. By his submission to the custody of the person making the arrest.  

Violence or unnecessary force shall not be used. Restraint should not be greater than that is necessary for the accused’s detention. 

Arrest is not necessary when the accused voluntarily appears after a complaint in a criminal action is filed against him and gives bond for his appearance at any time he may be called (People vs. Joson, 46 Phil 381).



Remedy for improperly issued warrants: Quashal of warrant or information (Ilagan vs. Enrile, 139 SCRA 349). After implementation of warrant, remedy is suppression of evidence.



Where the investigation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken, not as strictly voluntary invitation which purports to be, but as an authoritative command which one can only defy at his peril. The requisites of custodial investigation are applicable even to a person not formally arrested but merely “invited” for questioning (Sanchez vs. Demetriou, 227 SCRA 627).

DUTY OF OFFICER EXECUTING THE WARRANT (Rule 113, Sec. 3) 1. Arrest the accused; and 2. Deliver him to the nearest police station or jail without unnecessary delay Additional Duties of Arresting Officer: 1. To inform person arrested of the reason for the arrest; 2. Show warrant of arrest, if any; 3. Inform person of his constitutional right to remain silent and to counsel and that

any statement he might make could be used against him (People vs. Lacap, 171 SCRA 147). EXECUTION OF WARRANT (Rule 113, Sec. 4) Duty of Officer to Whom Warrant Was Assigned For Execution 1. Cause the execution within 10 days from receipt 2. Within 10 days from the expiration of the period to execute, to make a report to the judge who issued the warrant.

Philippines without permission of the court where the case is pending (Rule 114, Sec. 23[2]). 

   

In case of failure to execute, state reasons. Unlike a search warrant, the 10-day period stated here is not the lifetime or period of enforceability of the warrant of arrest. The warrant of arrest does not become functus officio by the mere lapse of said period and is enforceable indefinitely until such time as the arrest of the person or persons named therein has not been effected.

MODES OF ARREST: 1. By virtue of a warrant; 2. Arrest WITHOUT a warrant under exceptional circumstances as may be provided by statute. LAWFUL ARREST WITHOUT WARRANT (Rule 113, Sec. 5)

A peace officer or a private person may, without a warrant, arrest a person: a. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b. 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; Note: par. (a) and (b)- The person arrested

without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Sec. 7, Rule 112.

c.

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; d. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the



In addition, arrest without warrant may also be validly made: 1. Where the person who has been lawfully arrested escapes or is rescued; 2. By the bondsman for the purpose of surrendering the accused; 3. Where the accused attempts to leave the country without the court’s permission. A warrantless arrest is not a jurisdictional defect. Objection to a warrantless arrest is waived where the person arrested submits to arraignment without objection.

TIME OF MAKING ARREST (Rule 113, Sec. 6) An arrest may be made on any day and at any time of the day or night. METHOD OF ARREST BY OFFICER BY VIRTUE OF WARRANT (Rule 113, Sec. 7) General Rule: The arresting officer shall: 1. inform the person to be arrested of the cause of the arrest and 2. the fact that a warrant has been issued for his arrest Exceptions: 1. When the person to be arrested flees or forcibly resists before the officer has opportunity to so inform him; OR 2. When the giving of such information will imperil the arrest. 

The officer need not have the warrant in his possession at the time of the arrest. But after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

METHOD OF ARREST BY OFFICER WITHOUT WARRANT (Rule 113, Sec. 8) General Rule: The officer shall inform the person to be arrested of his authority and the cause of the arrest. Exceptions: 1. The person arrested is engaged in the commission of an offense; 2. He is pursued immediately after its commission, 3. He has escaped, flees, or forcibly resists before the officer has opportunity to so inform him; OR

4. When the giving of such information will imperil the arrest. METHOD OF ARREST PERSON (Rule 113, Sec. 9)

BY

PRIVATE

ARREST AFTER ESCAPE OR RESCUE (Rule 113, Sec. 13)

Any person may immediately pursue or retake without a warrant at any time and in any place within the Philippines a person who escapes or is rescued. 

CITIZEN’S ARREST – arrest effected by a private person. General Rule: The private person shall inform the person to be arrested of the: a. intention to arrest him; and b. the cause of the arrest. Exceptions: 1. The person arrested is engaged in the commission of an offense; 2. He is pursued immediately after its commission; 3. He has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him; or 4. When the giving of such information will imperil the arrest. OFFICER MAY SUMMON ASSISTANCE Every person so summoned shall assist the officer in effecting the arrest when he can render assistance without detriment to himself. (Rule 113, Sec. 10) RIGHT OF OFFICER TO BREAK INTO BUILDING OR ENCLOSURE (Rule 113, Sec. 11)

Requisites: 1. That the person to be arrested is or is reasonably believed to be in the building or enclosure; 2. That the officer announced his authority and purpose; 3. That the officer has been refused admittance thereto. RIGHT TO BREAK OUT FROM BUILDING OR ENCLOSURE (Rule 113, Sec. 12) The right to break into and out of a building is not extended to a private person even if his purpose is to make an arrest. When the right to break out from a building or enclosure may be exercised 1. Whenever an officer has entered the building or enclosure in accordance with Sec.11; and 2. When necessary to liberate himself.

The escapee must have been lawfully arrested.

RIGHT OF ATTORNEY OR RELATIVE TO VISIT PERSON ARRESTED (Rule 113, Sec. 14)

Must be made at the request of the person arrested or of another acting in his behalf. Scope of Right 1. To visit; and 2. To confer privately with such person. Who is entitled to this right? 1. Any member of the Philippine bar; or 2. A relative of the person arrested, subject to reasonable regulations. Time of Visit Any hour of the day or night.

RULE 114

BAIL BAIL is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions specified by the rule. (Rule 114, Sec. 1). CONDITIONS OF THE BAIL; REQUIREMENTS (Rule 114, Sec. 2)

All kinds of bail are subject to the following conditions: 1. Effectivity – Effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it. 2. Appearance – The accused shall appear before the proper court whenever required by the court or these Rules. 3. Trial in absentia – The failure of the accused to appear at the trial without

justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia. 4. Duty of bondsman – The bondsman shall surrender the accused to the court for execution of the final judgment. 5. Original papers – These shall state the: a. Full name of the accused b. Address of the accused c. Amount of the undertaking d. Conditions required e. Photographs (passport size) taken within the last 6 months showing the face, left and right profiles of the accused which must be attached to the bail. 

A court cannot entertain an accused’s motion or petition for bail unless he is in the custody of law (Dinapol vs. Baldado, 225 SCRA 110).

NO RELEASE OR TRANSFER EXCEPT ON COURT ORDER (Rule 114, Sec. 3)

General Rule: No person under detention by legal process shall be released or transferred. Exception: 1. When ordered by the court; or 2. When he is admitted to bail. RULES ON AVAILABILITY OF BAIL 1. Regardless of the stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong (Rule 114, Sec. 7). 2.

Bail is a Matter of Right: a. Before or after conviction by the MeTC, MTC, MTC in Cities or Municipal Circuit Trial Court; AND b. Before conviction by the Regional Trial Court. (Rule 114, Sec. 4) Exception: Where the offense is punishable by death, reclusion perpetua or life imprisonment AND the evidence of guilt is strong. 

Whether a bail is a matter of right or discretion, and even if no charge has yet been filed in court against a suspectdetainee, reasonable notice of hearing is required to be given to the prosecutor, or at



least his recommendation must be sought (Floresta vs. Ubiadas, 429 SCRA 270). The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended (Art. III, Sec. 13, Constitution).

Note: AN EXTRADITEE IS NOT ENTITLED TO BAIL.  The constitutional provision on bail as well as Sec. 4 of Rule114 applies only when a person has been arrested and detained for violation of Philippine Criminal Laws. It does not apply to extradition proceedings because extradition courts do not render judgment of conviction or acquittal.  The right to bail, embodied in the Constitution, is not available to military personnel or officer charged with a violation of the Articles of War (Aswat vs. Galido, G.R. No. 88381-82, November 21, 1991). 3.

Bail is Discretionary (Rule 114, Sec. 5) a. Upon conviction by the RTC of an offense NOT punishable by death, reclusion perpetua or life imprisonment; b. After conviction by the RTC wherein a penalty of imprisonment exceeding 6 but not more than 20 years is imposed, and not one of the circumstances below is present and proved: When bail may be denied or cancelled: a. Recidivism, quasi-recidivism or habitual delinquency or commission of crime aggravated by the circumstances of reiteration. b. Previous escape from legal confinement, evasion of sentence or violation of the conditions of bail without valid justification. c. Commission of the offense while on probation, parole or under conditional pardon. d. Circumstance of the accused or his case indicates the probability of flight if released on bail. e. Undue risk of commission of another crime by the accused during pendency of appeal.

c.

If the decision of the RTC convicting the accused change the nature of the offense from non-bailable to bailable. Court That May Act Upon the Application for Bail 1) The Trial Court – despite the filing of a notice of appeal, unless it has transmitted the original record to the appellate court. (applies to “a”) 2) The appellate court – if from the decision of the trial court, conviction of the accused changed the nature of the offense from non-bailable to bailable. (applies to “c”) Note: Applications for bail in cases where the grant of bail is a matter of discretion, or where the accused seeks to be released on recognizance, can only be filed in the court where the case is pending, on trial or on appeal (A.M. No. 05-8-26SC).

4.

5.

After conviction by the RTC imposing a penalty of imprisonment exceeding 6 years but not more than 20 years and any of the circumstance enumerated above and other similar circumstance is present and proved, no bail shall be granted (Rule 114, Sec. 5). After judgment has become final, no bail shall be allowed unless accused applied for probation before commencing to serve sentence or penalty and offense within purview of probation law (Rule 114, Sec. 25).

punishable by reclusion perpetua or life imprisonment shall be admitted to bail. BURDEN OF PROOF IN BAIL APPLICATION (Rule 114, Sec. 8)  The prosecution has the burden of showing that evidence of guilt is strong at the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment. Reason: Bail is a matter of right. 

The hearing should be summary or otherwise, in the discretion of the court, but the right of the prosecution to control the quantum of evidence and the order of presentation of witnesses must be equated with the purpose of the hearing, i.e., to determine the bailability of the accused.



SUMMARY HEARING is meant such brief and speedy method of receiving and considering the evidence of guilt as practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for purposes of bail.



As evidence presented under this section are automatically reproduced at the trial, the proceedings should be conducted as a regular trial. But upon motion of either party, the court may recall any witness for additional examination when the latter is dead, outside of the Philippines or otherwise unavailable to testify.

AMOUNT OF BAIL; GUIDELINES

(Rule 114,

Sec. 9)

Excessive bail shall not be required. The remedy of the accused where there is excessive bail is a Motion for Reduction of Bail, which is a litigated motion.

CAPITAL OFFENSE is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death (Rule 114, Sec. 7).

 

Note: Death Penalty cannot be imposed, pursuant to RA 9346, signed by PGMA on June 24, 2006. NON-BAILABLE OFFENSE (Rule 114, Sec. 7) When evidence of guilt is strong, no person charge with a capital offense or an offense

Factors for Fixing Reasonable Amount of Bail (not exclusive) 1. Financial ability of the accused to give bail; 2. Nature and circumstances of the offense; 3. Penalty for the offense charged;

4. Character and reputation of the accused; 5. Age and health of the accused; 6. Weight of the evidence against the accused; 7. Probability of the accused appearing at the trial; 8. Forfeiture of other bail; 9. The fact that the accused was a fugitive from justice when arrested; 10. Pendency of other cases where the accused is on bail.

1. Each must be a resident owner of real estate within the Philippines. 2. Where there is only one surety, his real estate must be worth at least the amount of undertaking. 3. If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.

FORMS OF BAIL: 1. Corporate surety; 2. Property bond; 3. Cash deposit ; 4. Recognizance.



Justification of Sureties Every surety shall justify by affidavit taken before the judge that he possesses the qualification of sureties in property bonds and describe his property. (Rule 114, Sec.

1. CORPORATE SURETY (Rule 114, Sec. 10) Requisites:

1. Joint affidavit of the accused and duly authorized officer of the corporation; 2. Accreditation from the court where the case is pending; 3. Accreditation from the Supreme Court; and 4. Submission of picture of the accused (not earlier than 6 months prior)—at least 3 (Rule 114, Sec. 3, last par.). Effectivity of a Corporate Surety Bond – Until termination of the case; exception only is when the surety corporation cancels it for non-payment of premium.

2.

PROPERTY BOND is an undertaking constituted as lien on the real property given as security for the amount of the bail (Rule 114, Sec. 11).  When there is no showing that the bondsman is the true owner of the land offered as bond, the court may properly refuse to accept the same (Lira, Jr. vs. Hon. Reyes, 4 C.A. Rep. 614).  What should be presented in court? (i) Transfer Certificate of Title, and (ii) Tax Declaration.  It need not be the property of the accused. Qualifications of Sureties in Property Bond

In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

13)

 

3.

The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified.

DEPOSIT OF CASH AS BAIL

(Rule 114,

Sec. 14)

Who may deposit in cash 1. The accused; or 2. Any person acting in his behalf. To whom the cash is deposited 1. With the nearest Collector of Internal Revenue; or 2. Provincial, City or Municipal Treasurer Amount of Deposit (Bail) 1. The amount of bail fixed by the court; or 2. The amount of bail recommended by the prosecutor or who investigated or filed the case. 

The bail bond posted for the accused was in the form of cash deposit which, as mandated by Rule 114, Sec. 14 shall be applied to the payment of fine and costs, and the excess, if any, shall be returned to the accused or to any person who made the deposit.

The Rule thus treats a cash bail differently from other bail bonds. A cash bond may be posted either by the accused or by any person in his behalf. When a cash bail is allowed, the two parties to the transaction are the State and the defendant. Unlike other bail bonds, the money may then be used in the payment of that in which the State is concerned – the fine and costs. The right of the government is in the nature of a lien on the money deposited. (Esteban vs. Alhambra, G.R. No. 135012, Sept. 7, 2004).

4. RECOGNIZANCE (Rule 114, Sec. 15) Whenever allowed by the law or the Rules, the court may release a person in custody on his own recognizance or that of a responsible person. Instances When Accused May Be Released On Recognizance 1. Where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, the court, in its discretion, may allow his release on a reduced bail or on his own recognizance (Rule 114, Sec. 16). 2. Where, after judgment of conviction but before its finality, the accused applies for probation and no bail was filed or he is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community (Rule 114, Sec. 24) (Sec. 7, P.D. 968, amended).

Probation

System

Act,

as

3. In case of a youthful offender held for physical and mental examination, trial or appeal, if unable to furnish bail and under the circumstances contemplated in The Child and Youth Welfare Code (Art. 191, P.D. 603, The Child and Youth Welfare Code as amended).

4. When the offense charged is a violation of an ordinance, a light felony or a criminal offense the imposable penalty for which is not higher than 6 months imprisonment and/ or P2,000 fine under the

circumstances provided 6036. arellano law Bail Bond

in

R.A.

Recognizance

Is an obligation under seal given by the accused with one or more sureties, and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform

Is an obligation of record, entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.

Requires the signature of the accused for its validity.

Does not require the signature of the accused for its validity.

RELEASE WITHOUT BAIL

(Rule 114,

Sec. 16)

1. When the accused has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, without prejudice to the continuation of the trial or the proceedings on appeal. 2. When the maximum penalty to which the accused may be sentenced is destierro, but only after 30 days of preventive imprisonment. BAIL, WHERE FILED (Rule 114, Sec. 17) a. Bail in the amount fixed may be filed with the: 1. Court where the case is pending; or 2. In the absence or unavailability of the judge thereof, with any, regional trial judge, metropolitan trial judge or municipal circuit trial judge in the province, city or municipality. Note: This is a special jurisdiction of the MTC/MCTC.

b. Where the grant of bail is a matter of discretion or the accused seeks to be released on recognizance  The application may only be fixed in the court where the case is pending, whether on preliminary investigation, trial or appeal.

c.

Any person in custody who is not yet charged in court.  May apply for bail with any court in the province, city or municipality where he is held.  Failure to give bail in the increased amount shall be a ground for the accused to be committed to custody.  An accused who is released without bail, upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody.

FORFEITURE OF BOND (Rule 114, Sec. 21) If the accused fails to appear in person as required by the law or the Rules: 1. His bail shall be declared forfeited; and 2. His bondsmen are given 30 days within which to produce his principal and to show why no judgment should be rendered against then on the amount of their bail. The bondsman may be held liable for the amount of the bail if he fails to do the following in the said period: 1. Produce the body of their principal or give the reason for his non-production; and 2. Explain why the accused did not appear before the court when first required to do so. CANCELLATION OF BAIL (Rule 114, Sec. 22) 1) By application Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled: a. Upon surrender of the accused; or b. Upon proof of the accused’s death. 2) Automatic The bail shall be deemed automatically cancelled upon: a. Acquittal of the accused; b. Dismissal of the case; or c. Execution of the judgment of conviction. 

In all instances, the cancellation shall be without prejudice to any liability on the bail.

ARREST OF ACCUSED OUT ON BAIL (Rule 114, Sec. 23)

An accused released on bail may be rearrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. BAIL AFTER FINAL JUDGMENT

(Rule 114,

Sec. 24)

General Rule: No bail shall be allowed after

judgment of conviction has become final. Exception: If before a judgment of conviction has become final, the accused applies for probation, he may be allowed temporary liberty under his bail. 

When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community.

BAIL NOT A BAR TO OBJECTIONS ON ILLEGAL ARREST, LACK OF OR IRREGULAR PRELIMINARY INVESTIGATION (Rule 114, Sec. 26) An application for or admission to bail shall not bar the accused from: 1. Challenging the validity of his arrest 2. Challenging the legality of the warrant issued therefore 3. Assailing the regularity or questioning the absence of a preliminary investigation of the charge against him 

He must raise these matters before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case.

BAIL IN EXTRADITION CASES

(Govt. of Hong Kong Special Administrative Region vs. Olalia, Jr., 521 SCRA 49) 



While our extradition law does not provide for the grant of bail an extradite, there is no provision prohibiting him/her from filing a motion for bail, a right to due process under the constitution. An extradition proceeding being sui generis, the standard of proof required in granting/denying bail is showing of clear and convincing evidence: that which is lover than proof beyond reasonable doubt but higher than proof of preponderance of evidence.

RULE 115 RIGHTS OF THE ACCUSED RIGHTS OF ACCUSED AT THE TRIAL 1) To be presumed innocent until the contrary is proved beyond reasonable doubt.

3) To be present and defend in person and by counsel.  

REASONABLE DOUBT – is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. NOTE: Absolute certainty of guilt is not required, but moral certainty. EQUIPOISE RULE – where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused and must be acquitted. Exception to Presumption of Innocence (Prima Facie Evidence of Guilt)  Without infringing on the right of the accused to be presumed innocent, the law may properly provide that the existence of certain set of facts, duly proved, may be taken as prima facie evidence of the guilt of a person (E.g. Art. 217, RPC).  However, the statute established only a prima facie presumption, thus giving the accused opportunity to rebut it (People vs. Mingoa, 92 Phil. 856)

2) To be informed of the nature and cause of the accusation against him.  This right is safeguarded by the provisions on: a. preliminary investigation b. arraignment c. requirements for sufficient allegations in the information d. bill of particulars and the rules against duplicity (People vs. Geverola, [CA], 66 O.G. 6043).  Cannot be waived for reasons of public policy.

Trial in absentia may be validly conducted only if the accused has been arraigned. The presence of the accused is required only (Art. III, Sec. 14 (2), 1987 Constitution): 1. At the arraignment and plea; 2. At the promulgation of judgment, EXCEPT when the conviction is for a light offense, in which case the judgment may be pronounced in the presence of his counsel or representative, but is not indispensable therein, as promulgation may be made in absentia; and 3. When ordered by the court for purposes of identification during trial.

Requirements for Trial in Absentia a. Accused has been arraigned b. He has been duly notified of the trial c. His failure to appear is unjustified (Gimenez vs. Nazarreno, 160 SCRA 1). RIGHT TO COUNSEL 

It is absolute and may be invoked at all times even on appeal. (Telan vs. CA, G.R. No. 95026, Oct 4, 1991)

The right covers the period beginning from custodial investigation, well into the rendition of the judgment and even on appeal. (People vs. Serzo, Jr., G.R. No. 118435, June 20, 1997) NOTE: While the right to counsel is absolute, the right to counsel de parte is not.  It is not required, however that counsel for the accused be present at the promulgation of judgment of conviction in order that such promulgation will be valid.  The right to counsel being a fundamental one, the judge may not hold trial of a criminal case in the absence of the counsel for the accused (Valdez vs. Aquilizan, 133 SCRA 150). Its disregard will constitute a ground for reversal of judgment of conviction 

(People vs. Holgado, 85 Phil 752).



When the accused appears without counsel: 1. The court must inform the defendant that it is his right to have an attorney before being arraigned; 2. After giving him such information, the court must ask him if he desires the aid of an attorney;

3. If he desires but is unable to employ one, the court must assign an attorney de oficio to defend him; and 

“Preference in the choice of counsel” pertains more aptly and specifically to a person under investigation rather than an accused in a criminal prosecution (People vs. Larrañaga, July 21, 2005).

4. If the accused desires to procure an attorney of his own, the court must grant him reasonable time therefor. 

An application for continuance in order to secure the services of counsel is ordinarily addressed to the discretion of the court and the denial thereof is not ordinarily and infringement of accused’s right to counsel.



Accused

Ordinary Witness

Can refuse to either take the stand or answer the question.

An ordinary witness can be compelled to take the stand and can object only when the incriminating question is asked.

6) To confront and cross-examine the witnesses against him at the trial. 

Constitutional guaranty to representation does not mean that accused may avoid trial by neglecting or refusing to secure assistance of counsel and by refusing to participate in his trial (People vs. Larrañaga, July 21, 2005).



However, the accused is now permitted to defend himself in person, upon motion, where it sufficiently appears to the court that he can properly protect his rights by himself (Rule 115, Sec. 1[c]).

4) To testify as a witness in his own behalf. 



If he testifies, he may be crossexamined but only on matters covered by his direct examination, unlike an ordinary witness who can be crossexamined as to any matter stated in the direct examination or connected therewith. His failure to testify is not taken against him; but failure to produce evidence in his behalf is considered against him.

5) To be exempt from being compelled to be a witness against himself. 



This right may be waived by the failure of the accused to invoke the privilege after the incriminating question is asked and before his answer. Covers testimonial compulsions only and the production by the accused of incriminating documents and articles demanded from him; it does not cover examination of his body as evidence when it may be material.

The accused may refuse altogether to take the witness stand except where a separate civil case is filed in which case he has to take the stand therein but can object to incriminating questions, where he may be called as an adverse witness.





Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. Main purpose is to secure the opportunity of cross-examination and the secondary purpose is to enable the judge to observe the demeanor of witnesses. The right of confrontation and crossexamination may be waived expressly or impliedly.

Confrontation in Criminal Law The act of setting a witness face to face with the accused so that the latter may make any objection he has to the witness, and the witness may identify the accused, and this must take place in the presence of the court having jurisdiction to permit the privilege of cross-examination. 7) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. 

It is a necessary and legitimate court process to issue a warrant of arrest to compel the attendance of witnesses who have failed to appear on the date of the trial despite due notice (Beltran vs. Garcia, 41 SCRA 158).

8) To have speedy, impartial and public trial. 

It means one that is conducted without capricious, vexatious or oppressive delays.  May be waived by not objecting to postponements or other delays of the trial (Gunabe vs. Dir. Of Prisons, 77

 

Phil.993). There is no violation of the right when the delay is imputable to the accused.

It is an impartial trial when the judge is not biased. Note: Remedy if the judge is biased— Motion to Inhibit.

TIME LIMIT FOR THE TRIAL OF CRIMINAL CASES (RA No. 8493, Speedy Trial Act of 1998”)

Shall not exceed 180 days from the first day of trial. General Rule: Exceptions:

1. Those governed by the Rules on Summary Procedure; or 2. Where the penalty prescribed by law DOES NOT EXCEED 6 months imprisonment or a fine of P1,000 or both; 3. Those authorized by the Chief Justice of the Supreme Court  Where the prosecution, through repeated motions for postponement causes delay to supervene over the objections of the accused, the court can dismiss the case on motion of the accused and such dismissal amounts to an acquittal.

TIME LIMIT BETWEEN FILING OF INFORMATION AND ARRAIGNMENT AND BETWEEN ARRAIGNMENT AND TRIAL (Section 7, RA No. 8493, Speedy Trial Act)

The arraignment of an accused shall be held within 30 days from the filing of the information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. Trial shall commence within 30 days from arraignment as fixed by the court.

EXTENDED TIME LIMIT Notwithstanding the provisions of Sec. 7, RA No. 8493, for the 1st 12-calendarmonth period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Sec. 7, RA No. 8493, shall be 180 days. For the 2nd 12-month period the time limit shall be 120 days, and for the 3rd 12-month period the time limit with respect to the period from arraignment to trial shall be 80 days. Exclusion of the public from the courtroom is valid when: 1. Evidence to be produced is offensive to decency or public morals; or 2. Upon motion of the accused; 3. Under the Child Witness Rule, because the child might be intimidated. 9) To appeal in all cases allowed and in the manner prescribed by law.  An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal.  But where the statute provides for the right to appeal, such a right becomes a part of the legal process and a denial thereof would be transgressive of the due process clause.

AN ACT DEFINING CERTAIN RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF REPUBLIC ACT 7483 Rights Of Persons Arrested, Detained, Or Under Custodial Investigation: Duties of Public Officers: a. Any person arrested detained or under custodial investigation shall AT ALL TIMES BE ASSISTED by counsel. b. Any public officer or employee, or anyone acting under his order or his

place, who arrests, detains or investigates any person for the commission of an offense shall:  INFORM the latter, in a language KNOWN TO AND UNDERSTOOD by him, of his rights:  To remain silent and  To have competent and independent counsel, preferably of his own choice: 1. Who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. 2. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

e.

f. c.

CUSTODIAL INVESTIGATION REPORT  Reduced to writing by the investigating officer.  Before such report is signed or thumbmarked by the person arrested, detained or under custodial investigation 1. It shall be READ AND ADEQUATELY EXPLAINED to him by his counsel or assisting counsel provided by the investigating officer 2. In the language or dialect known to such arrested or detained person 3. EFFECT OF FAILURE TO COMPLY: The investigation report shall be INADMISSIBLE as evidence in any proceeding.

d.

Any EXTRAJUDICIAL CONFESSION made by a person arrested, detained or under custodial investigation shall be: 1. In writing; and 2. Signed by such person.  in the presence of his counsel or  in the latter’s absence, upon a VALID WAIVER, and in the presence of: i. any of the parents ii. elder brothers and sisters, iii. his spouse, iv. the municipal mayor,

v. the municipal judge, vi. district school supervisor, or vii. priest or minister of the gospel as chosen by him;  FAILURE TO COMPLY: Such extrajudicial confession shall be INADMISSIBLE as evidence in any proceeding. Any WAIVER by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be: 1. in writing and 2. signed by such person 3. in the presence of his counsel  FAIILURE TO COMPLY: The waiver shall be null and void and of no effect. Allowed VISITS by or conferences with: 1. Any member of his immediate family; or 2. Any medical doctor or 3. Priest or religious minister chosen by him of by any member of his immediate family or by his counsel, or 4. By any national non-governmental organization duly accredited by the Commission on Human Rights or 5. By any international nongovernmental organization duly accredited by the Office of the President  “IMMEDIATE FAMILY” shall include: i. his or her spouse; ii. fiancé of fiancée; iii. parent or child; iv. brother or sister; v. grandparent or grandchild; vi. uncle or aunt; vii. nephew or niece; and viii. guardian or ward.

ASSISTING COUNSEL Any Lawyer except: 1. Those directly affected by the case; 2. Those charged with conducting preliminary investigation; or 3. Those charged with the prosecution of crimes. arellano law

RULE 116

ARRAIGNMENT AND PLEA ARRAIGNMENT is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him (People vs. Pangilinan, 518 SCRA 368). PARTS OF ARRAIGNMENT 1. Providing the accused with a copy of the information/complaint 2. Reading the information/complaint to the accused in a language/dialect known to him WHERE AND HOW MADE (Rule 116, Sec. 1) 1. Before the court where the complaint or information was filed or assigned for trial; 2. In open court; 3. By the judge or clerk of court; 4. By furnishing the accused with a copy of the complaint or information; 5. By reading the complaint or information in the language or dialect known to the accused; 6. By asking the accused of his plea. The prosecution may call at the trial witnesses other than those named in the complaint or information.  There can be no arraignment in absentia. The accused must be present at the arraignment and must personally enter his plea.  Where the accused went to trial without arraignment, but his counsel had the opportunity to cross-examine the witness of the prosecution, and after the prosecution rested he was arraigned, the procedural defect was cured (People vs. Pangilinan, 518 

SCRA 368).

PERIOD TO PLEA If Under Preventive Detention

A)

(Rule 116,

Sec. 1[e])

The case shall be raffled and its records transmitted to the judge whom the case was raffled within 3 days from the filing of the information or complaint. The accused shall be arraigned within 10 days from the date of the raffle. The pre-trial conference of his case shall be held within 10 days after arraignment.

B)

If Not Under Preventive Detention (Rule 116, Sec. 1[g])

Within 30 days from the filing of the information, or from the date the accused appealed before the justice/judge/court in which the charge is pending, whichever date last occurs 





30 days is not absolute as the Rules further states that the time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. A failure to observe the rules on arraignment is reversible error and a judgment of conviction cannot stand upon an invalid arraignment. Where the accused was arraigned on the original, and not on the substantially amended information, although such defect was pointed out to the trial court by the defense counsel, the same constitutes reversible error.

PLEA is the matter which the accused on his arraignment alleges in answer to the charge against him. When a Plea of “NOT GUILTY” Should Be Entered 1. When the accused so pleaded; 2. When he refuses to plead; 3. Where in admitting the act charged, he sets up matters of defense or with a lawful justification; 4. When he enters a conditional plea of guilt; 5. Where, after a plea of guilt, he introduces evidence of self-defense or other exculpatory circumstances; 6. When the plea is indefinite or ambiguous. Conditional Plea of Guilty (NEGATIVE PLEA) One entered subject to the proviso that a certain penalty be imposed upon him. It is equivalent to a plea of not guilty which requires a full-blown trial before judgment may be rendered.  It is likewise a conditional plea where he pleads guilty but submits exculpatory evidence and interposes lawful defenses.

PLEA OF GUILTY An unconditional plea of guilty by the accused admits the crime and all the

attendant circumstances alleged in the information including the allegations of conspiracy, and warrants a judgment of conviction without need of further evidence. When Accused Is Allowed To Plead Guilty To A Lesser Offense Which Is Necessarily Included In The Offense Charged (Rule 116, Sec. 2) 1. At

2. 3.

arraignment, the accused, with the consent of the offended party and prosecutor. After arraignment but before trial, if the accused withdraws his plea of not guilty. In case of failure of the offended party to appear at arraignment despite due notice, with the conformity of the trial prosecutor alone. (Rule 116, Sec. 1[f])

DUTIES OF THE COURT WHEN PLEA OF GUILTY TO A CAPITAL OFFENSE IS MADE (Rule 116, Sec. 3) 1. Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea. 2. Require the prosecution to prove his guilt and the precise degree of culpability.  The accused may present evidence in his behalf.  As there is no more death penalty, the requirements do not apply. DUTY OF COURT WHEN PLEA OF GUILTY TO NON-CAPITAL OFFENSE IS MADE The court may receive evidence from the parties to determine penalty to be imposed. (Rule 116, Sec. 4) 



Crimes punishable by reclusion perpetua and life imprisonment do not need searching questions. When the facts charged in the information do not state an offense, no conviction thereon can be had notwithstanding the defendant’s plea of guilty thereon.

WITHDRAWAL OF IMPROVIDENT PLEA OF GUILTY (Rule 116, Sec. 5) At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.



The withdrawal of a plea of guilty is not a matter of a strict right to the accused but of sound discretion to the trial court (People vs. Lambrino, 103 Phil. 504).

Instances of Improvident Plea 1. Plea of guilty was compelled by violence or intimidation. 2. The accused did not fully understand the meaning and consequences of his plea. 3. Insufficient information to sustain conviction of the offense charged. 4. Information does not charge an offense, any conviction thereunder being void. 5. Court has no jurisdiction (p.392, Pamaran). DUTY OF COURT AS TO THE RIGHT TO COUNSEL OF THE ACCUSED (Rule 116, Sec. 6)

1. Inform the accused, before arraignment, of his right to counsel; 2. Ask the accused if he desires to have one; 3. If he desires and is unable to employ an attorney, the court must assign counsel de officio for the accused, unless: a. He is allowed to defend himself in person; or b. He has employed a counsel of his choice. If he has not yet employed one, the court must grant him reasonable time therefore. THE COUNSEL DE OFICIO TO BE APPOINTED MUST BE (Rule 116, Sec. 7) 1. A member of the bar in good standing; and 2. Able to competently defend the accused by reason of his experience and ability. 

The counsel de officio appointed must be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment (Rule 116, Sec. 8). Where no member of the bar is available, the court may appoint any person to defend the accused who is: 1. A resident of the province; and 2. Of good repute for probity and ability to defend the accused.

BILL OF PARTICULARS (Rule 116, Sec. 9) The Rules provide for this remedy to protect the accused from vague and indefinite allegations in the complaint or information. Requirements: 1. The motion must be made before arraignment 2. It must specify the alleged defects 3. It must state the details desired PRODUCTION OR INSPECTION OF MATERIAL EVIDENCE IN POSSESSION OF PROSECUTION (Rule 116, Sec. 10) Requirements: 1. On motion of the accused showing good cause 2. With notice to the parties 3. Material evidence refer to written statements, documents and things not otherwise privileged in the possession or under the control of the prosecution, police or other law investigating agencies

RULE 117

MOTION TO QUASH MOTION TO QUASH is a special pleading filed by the defendant before entering his plea which hypothetically admits the truth of the facts alleged in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings.  The court in resolving the motion cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution. Motion To Quash Governed by Rule 117 of the Rules of Criminal Procedure

Governed by Rule 16 of the Rules of Civil Procedure

Filed before the defendant enters his plea

Should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him.

Filed by the accused

May be filed by any defending party against whom a claim is asserted in the action.

If sustained, the court may order that another complaint or information. It is not a bar to another prosecution for the same offense unless the motion was based on grounds specified in sec. 3 (g) and (i) of Rule 117.

If granted, plaintiff may appeal or if subsequent case is not barred, he may refile the case; An order granting a motion to dismiss based on res judicata or where the claim or demand has been paid, waived, abandoned, or otherwise extinguished or where the claim is unenforceable under the Statute of Frauds shall bar the refiling of the same action or claim.

 This is one of the modes of discovery in criminal cases for the accused only.

GROUNDS FOR SUSPENSION OF ARRAIGNMENT (Rule 116, Sec. 11) 1. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. 

The court shall order his mental examination and, if necessary, his confinement for such purpose.

2. There exists a prejudicial question. 3. 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 60 days counted from the filing of the petition with the reviewing office. 

The proper party must move for the suspension based on the above grounds.

Motion To Dismiss Under Rule 16

If denied, defendant

answers, or else he may be declared in default.

4. The defendant has been in former jeopardy. 

RULES AS TO MOTION TO QUASH 1. If denied – go to trial without prejudice to reiterating special defenses invoked in said motion 2. If after trial on the merits, an adverse decision is rendered – appeal in the manner authorized by law (Marcelo v. CA, July, 5, 1993). 3. If granted – a final order; immediately appealable, provided defendant will not be placed in double jeopardy. When certiorari may be entertained if MTQ is denied 1. When the action is necessary to promote public welfare and public policy; or 2. Where the case has attracted nationwide attention, making it imperative to proceed with dispatch in the consideration thereof, or 3. Where the appeal is found to be an improper remedy because the order which is sought to be reviewed is merely interlocutory or peremptory in character and the appeal therefrom can be interposed only after final judgment and may, therefore, be of no avail; 4. In the interest of more enlightened and substantial justice. WHEN TO FILE General Rule: At any time before entering his plea, the accused may move to quash the complaint or information. 



The motion to quash must be filed before the arraignment. Thereafter, no motion to quash can be entertained by the court. It may even be filed during the preliminary investigation.

Exceptions: A motion to quash can be filed and entertained at any stage of the proceeding when: (Miranda vs. Sandiganbayan, 464 SCRA 165)

1. The complaint or information does not charge an offense. 2. The court has no jurisdiction over the offense charged. 3. The offense or penalty has been extinguished.

Prescription of the offense as a ground for a motion to quash is not waived as this is a substantive right. arellano law

FORM AND CONTENTS (Rule 117, Sec. 2) 1. In writing; 2. Signed by the accused or his counsel; 3. Distinctly specify its factual and legal grounds. 

The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged.

GROUNDS FOR MOTION TO QUASH

(Rule

117, Sec. 3)

1. That the facts charged do not constitute an offense; 2. That the court trying the case has no jurisdiction over the offense charged; 3. That the court trying the case has no jurisdiction over the person of the accused; 4. That the officer who filed the information had no authority to do so; 5. That it does not conform substantially to the prescribed form; 6. That more than one offense is charged except when a single punishment for various offenses is prescribed by law; 7. That the criminal action or liability has been extinguished; 8. That it contains averments which, if true, would constitute a legal excuse or justification; and 9. That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without this express consent. Motion To Quash

Demurrer To Evidence

Filed before the defendant enters his plea.

Filed after the prosecution has rested its case.

Does not go into the merits of the case but is rather anchored on matters not directly concerned with the question of guilt or innocence of the accused.

Based upon the inadequacy of the evidence adduced by the prosecution in support of the accusation.

Governed by Rule 117.

Governed by Sec. 23, Rule 119.

AMENDMENT OF THE COMPLAINT OR INFORMATION (Rule 117, Sec. 4) If based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment.  The motion to quash shall be granted if: 1. The prosecution fails to make the amendment; or 2. The complaint or information still suffers from the same defect despite the amendment EFFECT OF SUSTAINING THE MOTION TO QUASH (Rule 117, Sec. 5) The court may order that another complaint or information be filed except if barred. 1. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. 2. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be discharged unless he is also in custody for another charge.

An order denying a motion to quash is INTERLOCUTORY and NOT APPEALABLE The denial by the trial court of a motion to quash CANNOT be the subject of a petition for certiorari, prohibition or mandamus in another court of coordinate rank. DOUBLE JEOPARDY (Rule 117, Sec. 7) Means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense. Requisites: It is necessary that in the first case ---1. The complaint or information or other formal charge was sufficient in form and substance to sustain conviction; 2. The court had jurisdiction; 3. The accused had been arraigned and had pleaded to the charge; and 4. He was convicted or acquitted or the case was terminated without his express consent.  If

the case is dismissed upon defendant’s request or with his express consent, the dismissal is not a bar to another prosecution for the same offense because his act prevents the court from proceeding to trial on the merits and rendering judgment of conviction against him (People vs. Obsania, 23 SCRA 1249).

ORDER SUSTAINING THE MOTION TO QUASH NOT A BAR TO ANOTHER PROSECUTION (Rule 117, Sec. 6) General Rule: An order sustaining the motion to quash is not a bar to another prosecution for the same offense. Exception: When the motion was based on following grounds: 1. That the criminal action or liability has been extinguished. 2. 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.

When all these requisites are present, they constitute a bar to a second prosecution: 1. For the same offense. 2. For an attempt to commit the said offense. 3. For a frustration of the said offense. 4. For any offense which necessarily includes or is necessarily included in the first offense charged. Instances when dismissal amounts to acquittal and bars a subsequent prosecution for the same offense even if dismissal is at the instance of defendant: a. If predicated upon right to speedy trial of the accused;

b.

Due to a variance between the proof and allegations; c. In the strength of a demurrer to evidence; d. Insufficiency of evidence



Dismissal

Acquittal

Does not decide the case on the merits or that the defendant is not guilty.

Always based on the merits; that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt.

If an act is punished by a law and an ordinance, even if they are considered as different offenses, conviction/acquittal under either shall constitute a bar to another prosecution for the same act.

 If a single act is punished by 2 different

provisions of law, but each provision requires proof of an additional fact which the other does not so require, neither conviction nor acquittal in one will bar a prosecution for the other (Perez vs. CA, 163 SCRA 236).

Test For Determining Whether the 2 Offenses are Identical 1. Same Offense Test – there is identity between 2 offenses not only when the 2nd offense is exactly the same as the 1st, but also when the 2nd offense is an attempt to or prostration of, or is necessarily included in the offense charged in the 1st information. Exceptions to the Identity Rule:

1.

The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information (newly discovered facts) 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the prosecutor and of the offended party except as provided in section 1(f) of Rule 116

(improper affirmative plea to a lesser offense) 2. Same Evidence Test – whether the facts, as alleged in the 2nd information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been acquitted or convicted. PROVISIONAL DISMISSAL (Rule 117, Sec. 8) Requisites: 1. Motion by the prosecution with the express consent of the accused or by the accused himself, or by both the prosecution and the accused for a provisional dismissal. 2. Notice to the offended party of the motion 3. Court issued order granting the motion and dismissing the case provisionally 4. Public prosecutor is served with a copy of the order of provisional dismissal of the case (People v. Panfilo Lason, April 1, 2003). Provisional Dismissal becomes PERMANENT for failure to revive the case within: a. 1 year – for offenses punishable by imprisonment not exceeding 6 years. b. 2 years – for offenses punishable by imprisonment of more than 6 years. Upon the lapse of the period to revive the case, the State is presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same crime or another crime necessarily included therein. Note:

FAILURE TO MOVE TO QUASH OR TO ALLEGE ANY GROUND THEREFOR (Rule 117, Sec. 9)

All grounds for a motion to quash are WAIVED if NOT seasonably raised, EXCEPT: 1. When the information does not charge an offense; 2. Lack of jurisdiction of the court; 3. Extinction of the offense or penalty, and; 4. Double jeopardy.

RULE 118



PRE-TRIAL PURPOSE: To simplify the issues, shape up the testimonial and documentary evidence and generally to clear the desks for trial (Irving Trust Co. v. US, 221 F.2d 303). PRE-TRIAL IS MANDATORY

(Rule 118, Sec.

1)

In all criminal cases cognizable by the: 1. Sandiganbayan; 2. Regional Trial Court; 3. Metropolitan Trial Court; 4. Municipal Trial Court in Cities; 5. Municipal Trial Court; 6. Municipal Circuit Trial Court. Period for Court to Order Pre-Trial Conference After arraignment and within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court. Matters to Be Considered During PreTrial 1. Plea bargaining; 2. Stipulation of facts; 3. Marking for identification of evidence of the parties; 4. Waiver of objections to admissibility of evidence; 5. Modification of the order of trial if the accused admits the charge but interposes a lawful defense; 6. Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.  

Agreements covering these matters shall be approved by the court. Plea Bargaining- the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval.

PRE-TRIAL AGREEMENT AS EVIDENCE AGAINST THE ACCUSED (Rule 118, Sec. 2) Requisites: 1. Reduced in writing; and 2. Signed by the accused and counsel.

If the prosecution discovered that the accused did not sign the stipulation of facts, as required by Rule 118, he should submit evidence to establish the elements of the crime and not relying solely on the stipulation of facts (Fiele vs. CA, 162 SCRA 446).

NON-APPEARANCE AT PRE-TRIAL CONFERENCE (Rule 118, Sec. 3) The Court may impose proper sanctions if the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation. 

Sanctions and Penalties for nonappearance refer to the counsel for the accused & the prosecutor



Section 8 of Rule 70 of the Rules of Court requires the appearance of the plaintiff and the defendant during the preliminary conference. Unless inconsistent with Rule 70, the provisions of Rule 18 on pretrial applies to the preliminary conference. Section 4 of Rule 18 may supplement Section 8 of Rule 70. Thus, the spirit behind the exception to personal appearance under the rules on pretrial is applicable to the preliminary conference. If there are valid reasons or if a representative has a “special authority,” a party’s appearance may be waived. (Spouses Macasaet vs. Spouses Macasaet, G.R. No. 154391-92, August 30, 2004).

CONTENTS OF PRE-TRIAL ORDER

(Rule

118, Sec. 4)

1. Actions taken; 2. Facts stipulated; 3. Evidence marked. Pre-Trial Order- An order issued by the court after the pre-trial conference. Effects of Pre-Trial Order 1. Binds the parties; 2. Limits the trial to matters not disposed of; and 3. Controls the course of the action during the trial, unless modified by the court to prevent manifest injustice.

RULE 119

TRIAL TRIAL is the examination before a competent tribunal according to the laws of the land, of the facts put in issue in a case

for the purpose of determining such issue (US vs. Raymundo, 14 Phil. 439). Trial shall commence within 30 days from receipt of the pretrial order  The accused after a plea of not guilty shall have 15 days to prepare for trial (Rule 119, Sec. 1). CONTINUOUS TRIAL SYSTEM (Rule 119, 

Sec. 2)

Trial once commenced shall continue from day to day as far as practicable until terminated; but it may be postponed for a reasonable period of time for good cause. Limitation on the Trial Period: It shall in no case exceed 180 days from the first day of trial, except as otherwise provided by the Supreme Court. POSTPONEMENT ON ACCOUNT OF THE ABSENCE OF A WITNESS Requisites: 1. That the witness is material and appears to the court to be so. 2. That the party who applies has not been guilty of neglect. 3. That the witnesses can be had at the time to which the trial is deferred and incidentally 4. That no similar evidence could be obtained (US vs. Ramirez, 39 Phil. 783). REMEDIES OF AN ACCUSED WHEN PROSECUTING OFFICER SECURES POSTPONEMENT OF TRIAL When a prosecuting officer, without good cause, secures postponements of the trial of a defendant against the latter’s protest and beyond a reasonable period of time, the accused may resort to the following remedies: 1. Mandamus to compel a dismissal of the information. 2. Habeas corpus to obtain his freedom, if he is restrained of his liberty. 3. Adhere faithfully to the session hours prescribed by laws. 4. Maintain full control of the proceedings. EXCLUSIONS TO THE COMPUTATION OF TIME FOR TRIAL TO COMMENCE (Rule 119, Sec. 3)

1. Proceedings concerning the accused (e.g. physical and mental examination, prejudicial question); 2. Absence or unavailability or essential witness; 3. Mental incompetence or physical inability of the accused; 4. Dismissal of information for the filing of another charge against the accused for the same offense; 5. Accused is joined for trial with coaccused over whom the court has not acquired jurisdiction; 6. Continuance. REMEDY WHERE ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE TIME LIMIT (Rule 118, Sec. 9)  The information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial.  Dismissal shall constitute double jeopardy.  The accused must move to dismiss before trial actually commences, otherwise, he waives such right. Dismissal w/o Prejudice

Dismissal With Prejudice

Allows a new suit to be brought on the same cause of action.

An adjudication on the merits, the final disposition, barring the right to bring or maintain an action on the same claim or cause; res judicata as to every matter litigated.



The right to speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings are attended by vexatious, capricious and oppressive delays. In the determination of whether said right has been violated, particular regard must be taken of the facts and circumstances peculiar to each case. “Speedy disposition of cases” is consistent with reasonable delays”. if the long delay in the termination of the preliminary investigation was not solely the prosecution’s fault, but was also due to incidents attributable to the accused and his counsel, the right of the accused to speedy disposition of cases is not violated. (Mendoza-Ong vs. Sandiganbayan, et al., G.R. No. 146368-69, October 18,2004)

ORDER OF TRIAL (Rule 119, Sec. 11) 1. The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. 2. The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. 3. The prosecution and the defense may, in that order, present rebuttal and surrebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. 4. Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. 5. When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. 

A departure from the order of the trial is not reversible as where it was agreed upon or not seasonably objected to, but not where the change in the order of the trial was timely objected by the defense.



Where the order of the trial set forth under this section was not followed by the court to the extent of denying the prosecution an opportunity to present its evidence, the trial is a nullity (People vs. Balisacan, 17 SCRA 1119).

REVERSE TRIAL When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the trial court may allow the accused to present his evidence and thereafter give the prosecution the opportunity to present his rebuttal evidence. 

Refusal of the court to reverse the order of trial upon demand of the accused who pleads self-defense as a defense is NOT a reversible error (People vs. Gutierrez, 302 SCRA 643).

APPLICATION FOR EXAMINATION OF WITNESS FOR ACCUSED BEFORE TRIAL (Rule 119, Sec. 12)

Accused may have witnesses examined conditionally in his behalf before trial upon motion with notice to all other parties. The motion must state: 1. Name and residence of witness; 2. Substance of testimony; 3. Witness is sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial or resides more than 100 km from the place of trial and has no means to attend the same, or other similar circumstances exist that would make him unavailable or prevent him from attending trial. 

The motion shall be supported by an affidavit and such other evidence as the court may require.

EXAMINATION OF DEFENSE WITNESS (Rule 119, Sec. 13)

Modes of Discovery under the Civil Procedure (Rules 24) Rule 24 applies in a suppletory character in all matters not specifically touched on by Sec. 12, Rule 119 and the preceding sections. The taking of depositions under Rule 24 is taken for the preservation of a material witness’ testimony.

Application for examination of witness under the Rules of Criminal Procedure (Rule 119, Sec. 12) The procedure set forth must be complied with strictly

The conditional examination of a defense witness under Sec.12 and 13, Rule 119 are taken for the preservation also of a material witness’ testimony.

If the court is satisfied that the examination of witness is necessary as provided in Sec 4, an order directing that the witness be examined shall be made and a copy served on the fiscal. The examination shall be taken before any judge or, if not practicable, before any member of the Bar in good standing so designated in the order.





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.

BAIL TO SECURE APPEARANCE OF MATERIAL WITNESS (Rule 119, Sec. 14) Requisites: 1. Court is satisfied, upon proof or oath, that a material witness will not testify when required; 2. Motion by either party; 3. Order of court to the witness to post bail Effect of refusal to post bail: The court shall commit him to prison. Period of Imprisonment 1. Until he complies; or 2. Until he is legally discharged after his testimony has been taken. ADMISSION TO THE WITNESS PROTECTION PROGRAM (RA 6981) Requisites: 1. The person has witnessed or has knowledge or information on the commission of a crime. 2. The person has testified or testifying or about to testify before any judicial or quasi-judicial body or before any investigating authority. 3. The offense in which his testimony will be used is a grave felony as defined under the RPC, or its equivalent under special laws. 4. His testimony can be substantially corroborated in its material points. 5. He or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying or to testify or evasively because of or on account of his testimony. 6. He is not a law enforcement officer, even if he would be testifying against other law enforcement officers. In such case, only immediate members of his family may avail themselves of the protection provided for under the Witness Protection Act.

RESPONSIBILITIES OF A WITNESS UNDER THE PROTECTION PROGRAM 1. To testify before and provide information to all appropriate law enforcement officials concerning all appropriate proceedings in connection with or arising from the activities involved in the offense charged. 2. To avoid the commission of a crime. 3. To take all necessary precautions to avoid detection by others of the facts concerning the protection provided him. 4. To comply with legal obligations and civil judgment against him. 5. To cooperate with respect to all reasonable requests of officers and employees. 6. To regularly inform the appropriate program official of his current activities and address. arellano law 7.

EXAMINATION OF WITNESS FOR THE PROSECUTION (Rule 119, Sec. 15) A witness may be conditionally examined when s/he: 1. Is too sick or infirm to attend trial; or 2. Has to leave the Philippines with no definite date of returning. 



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 in examination at the trial. Failure or refusal of the accused to attend after notice shall be considered as a waiver.

TRIAL OF SEVERAL ACCUSED

(Rule 119,

Sec. 16)

1. Joint trial – if jointly charged. 2. Separate trial – upon motion prosecutor or any accused. 



of

The motion for separate trial must be filed before the commencement of the trial and cannot be raised for the first time on appeal. If a separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter had the opportunity for cross-examination.

DISCHARGE OF ACCUSED TO BE STATE WITNESS (Rule 119, Sec. 17) Motion to discharge should be made by the prosecution before resting its case.

Requisites for Discharge: 1. Absolute necessity for testimony 2. No other direct evidence available for the prosecution 3. Testimony can be substantially corroborated in its material points 4. Accused not the most guilty 5. Accused has never been convicted of any offense involving moral turpitude

1. 2. 3.



Note: Absence of any of the requisites is a ground for objection to the motion for his discharge, BUT such objection must be raised BEFORE the discharge is ordered.

EFFECTS OF MOTION TO DISCHARGE (Rule 119, Sec. 18)

1. If granted – Evidence adduced in support of the discharge shall automatically form part of the trial.

Legal jeopardy attaches only: 1. Upon a valid indictment, 2. Before a competent court, 3. After arraignment, 4. A valid plea having been entered; and 5. The case was dismissed or otherwise terminated without the express consent of the accused. 

 Operates as an acquittal and bar to further prosecution for the same offense, unless he fails or refuses to testify in accordance with his sworn statement from which his discharge was based.

2. If denied – the accused’s sworn statement shall be inadmissible in evidence.

A first jeopardy must have attached prior to the second; The first jeopardy must have been validly terminated; and The second jeopardy must be for the same offense as that in the first. (Dimayacyac vs. Court of Appeals, G.R. No. 136264, May 28, 2004)

Appellant failed to file a motion to quash within the time prescribed under Section 1, Rule 117 of the Rules of Court, he is thus deemed to have waived the defect in the Information. A duplicitous information is valid since such defect may be waived and the accused, because of such waiver, could be convicted of as many offenses as those charged in the information and proved during trial. (Mendoza-Ong vs. Sandiganbayan, et al., G.R. No. 146368-69, October 18, 2004)

EXCLUSION OF THE PUBLIC

(Rule 119, Sec.

21)

Exceptions to the Effects of a Motion to Discharge 1. If the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge. 2. Failure to testify refers exclusively to defendant’s will or fault. 3. Where an accused who turns state’s evidence on a promise of immunity but later retracts and fails to keep his part of the agreement, his confession of his participation in the commission of the crime is admissible as evidence against him.

Grounds: 1. When evidence to be presented is offensive to decency or public morals; or 2. On motion of accused. 3. Under the Child Witness Rule, because the child might be intimidated. CONSOLIDATION OF TRIALS OF RELATED OFFENSES (Rule 119, Sec. 22) This contemplates a situation where separate informations are filed for offenses founded on the same facts and for offenses which form part of a series of offenses of similar character. DEMURRER TO EVIDENCE

WHEN MISTAKE HAS BEEN MADE IN CHARGING THE PROPER OFFENSE (Rule

(Rule 119, Sec.

23)

Ground: Insufficiency of evidence.

119, Sec. 19)

Substitution of the complaint or information must not amount to double jeopardy. The accused shall not be discharged if there appears a good cause to detain him. 

Apparently, to raise the defense of double jeopardy, three requisites must be present:

When/ How Dismissed: 1. On the court’s own initiative after giving the prosecution the opportunity to be heard; or 2. Upon demurrer to evidence filed by the accused with or without leave of court.

Motion for leave of court to file demurrer to evidence: 1. Shall specifically state its grounds; 2. Shall be filed within a non-extendible period of 5 days after prosecution rests its case. 

The prosecution may oppose the motion within a non-extendible period of 5 days from receipt.

Effects of Denial of Demurrer to Evidence: 1. a. If filed with leave of court – accused may adduce evidence in his defense. b. If filed without leave of court – accused shall be deemed to have waived his right to present evidence and submits the case for judgment, based on prosecution’s evidence. 2. Not reviewable by appeal or certiorari before judgment. Effects of Granting Demurrer Evidence: 1. Dismissal, amounting to acquittal. 2. Not appealable. Demurrer in Criminal Case

to

Demurrer in Civil Cases

In case of denial accused waives his right to present evidence if leave of court was not obtained.

In case of denial, accused may present evidence even if no leave of court was secured.

Order sustaining demurrer is not appealable.

Plaintiff can appeal from order sustaining demurrer.

REOPENING (Rule 119, Sec. 24) Rules: 1. Must be made before finality of judgment of conviction 2. Purpose – to avoid a miscarriage of justice 3. Proceedings must terminate within 30 days from order granting it 4. Motu proprio by the judge or upon motion, with hearing in either case.

RULE 120

JUDGMENT JUDGMENT is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition of the proper penalty and civil liability provided for by law. (Rule 120, Sec. 1) 

It is not necessary that the judge who tried the case be the same judicial officer to decide it. It is sufficient that he be apprised of the evidence already presented by a reading of the transcript of the testimonies already introduced, in the same manner as appellate courts review evidence on appeal.

Form of Judgment: 1. Written; 2. In the official language; 3. Personally and directly prepared by the judge; 4. Signed by the judge; 5. With a clear and distinct statement of the fact and the law on which it is based. 

If judgment is not put in writing, the remedy is to file a petition for mandamus to compel the judge to put in writing the decision of the court.

CONTENTS OF JUDGMENT OF CONVICTION (Rule 120, Sec. 2) 1. The legal qualification of the offense constituted by the acts committed by the accused and the aggravating and mitigating circumstances attending its commission. 2. The participation of the accused, whether as principal, accomplice or accessory. 3. The penalty imposed upon the accused. 4. The civil liability or damages caused by the wrongful act, unless civil action has been reserved or waived. CONTENTS OF JUDGMENT OF ACQUITTAL (Rule 120, Sec. 2) 1. a. That evidence of the prosecution absolutely failed to prove the guilt of the accused; or b. That the evidence merely failed to prove his guilt beyond reasonable doubt 2. That the act or omission from which the civil liability might arise: a) did not exist; or

b) exists. Reasonable Doubt – state of the case which after full consideration of all evidence, leaves the mind of the judge in such a condition that he cannot say that he feels an abiding conviction, to a moral certainty, of the truth of the charge. Acquittal – a finding of not guilty based on the merits, that is, the accused is acquitted because the evidence does not show that his guilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the ground that the evidence fails to show beyond reasonable doubt that the accused is guilty. 

An acquittal of an accused based on reasonable doubt does not bar the offended party from filing a separate civil action based on quasi-delict unless the judgment includes a declaration that the facts from which the civil liability might arise did not exist.

JUDGMENT FOR TWO OR MORE OFFENSES (Rule 120, Sec. 3) When two or more offenses are charged in a single complaint or information, and the accused fails to object to it before trial, the court may convict the accused of as many offenses as charged and proved and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. JUDGMENT IN CASE OF VARIANCE BETWEEN ALLEGATION AND PROOF (Rule 120, Sec. 4)

General Rule: An accused can be convicted

of an offense only when it is both charged and proved, or if it is not proved although charged, the accused cannot be convicted thereof. Exception: Where there is a variance between the offense charged in the information/complaint and that is proved; and the offense as charged is included 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. WHEN OFFENSE INCLUDES OR IS INCLUDED IN ANOTHER (Rule 120, Sec. 5)

General Rule: If what is proved by the

prosecution is an offense that is included in the offense charged in the information, the accused may validly be convicted of the offense proved. Exception: Where facts supervened after the filing of the information, which change the nature of the offense. 

An offense charged necessarily includes another when some essential elements or ingredients of the offense charged constitute the offense proved, or when the essential elements or ingredients of the offense charged constitute or form part of those constituting the offense proved, then one offense is included in the other.



An accused cannot be convicted for the lesser offense necessarily included in the crime charged if at the time of the filing of the information the lesser offense has already prescribed (Francisco vs. CA, 122 SCRA 538).

PROMULGATION OF JUDGMENT – the official proclamation or announcement of judgment. It consists of reading the judgment or sentence in the presence of the accused and any judge of the court rendering the judgment. (Rule 120, Sec. 6) 

It is the point of reference when the judgment becomes final.

Rules on Validity of Promulgation of Judgment 1. The judgment must have been rendered and promulgated during the incumbency of the judge who signed it. 2. The presence of counsel during the promulgation of judgment is not necessary. PROMULGATION IN ABSENTIA

(Rule 120,

Sec. 6)

Instances when a judgment may be promulgated even without the personal presence of the accused: 1. When the judgment is for a light offense, in which case, the accused’s counsel/representative may stand in for him; and 2. In cases where despite due notice to the accused or his bondsman or warden and counsel, the accused failed to appear at the promulgation of the decision.

Note: If the judgment is for conviction and the accused’s failure to appear is without justifiable cause, he shall lose the remedies available in the rules against the judgment and the court order his arrest Within 15 days from the promulgation of the judgment, however, the accused may surrender and file a motion for leave of court to avail of said remedies. If his motion is granted, he may avail of the remedies within 15 days from notice.

Elements for a Valid Promulgation in Absentia 1. The judgment is recorded in the criminal docket; and 2. A copy thereof is served upon the accused in his last known address or to his counsel. MODIFICATION OF JUDGMENT

(Rule 120,

Sec. 7)

Upon motion of the accused, a judgment of conviction may be modified or set aside by the court before it has become final or before an appeal has been perfected. MODIFICATION OF JUDGMENT. Upon motion of the accused, a judgment of conviction may be modified or set aside by the court before it has become final or before an appeal has been perfected. WHEN A JUDGMENT BECOMES FINAL 1. When the period for perfecting an appeal has lapsed. 2. When the accused commences to serve sentence. 3. When the accused expressly waives in writing his right to appeal. 4. When the accused applies for probation, thereby waiving the right to appeal.  



A judgment of acquittal becomes final immediately after promulgation and cannot be recalled for correction or amendment. The prosecutor cannot ask for the modification or setting aside of a judgment of conviction because the rules clearly provide that a judgment of conviction may be modified or set aside by the court rendering upon motion of the accused. The trial court can validly amend the civil portion of its decision within 15 days from promulgation thereof even though the appeal had in the meantime already been perfected by the accused from judgment of conviction.

ENTRY OF JUDGMENT (Rule 120, Sec. 8) After a judgment has become final, it shall be entered in accordance with Rule 36.

The final judgment of the court is carried into effect by a process called “mittimus”. Mittimus is a process issued by the court after conviction to carry out the final judgment, such as commanding a prison warden to hold the accused in accordance with the terms of the judgment.

RULE 121

NEW TRIAL OR RECONSIDERATION NEW TRIAL – the rehearing of a case already decided but before the judgment of conviction therein rendered has become final, whereby errors of law or irregularities are expunged from the record, or new evidence is introduced, or both steps are taken. 

A motion for new trial or reconsideration should be filed with the trial court within 15 days from the promulgation of the judgment and interrupts the period for perfecting an appeal from the time of its filing until notice of the order overruling the motion shall have been served upon the accused or his counsel (Rule 122, Sec.6).

The trial court loses jurisdiction over its sentence even before the lapse of 15 days when: 1. Defendant voluntarily submits to the execution of the sentence. 2. The defendant perfects his appeal. The moment the appeal is perfected, the court a quo loses jurisdiction over it, except for the purpose of correcting clerical errors. GROUNDS FOR NEW TRIAL

(Rule 121, Sec.

2)

1. Errors of law or irregularities committed during the trial prejudicial to the substantial right of the accused. 2. New and material evidence discovered. Requisites:

a. That the evidence was discovered after trial;

b. That such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; c. That it is material not merely cumulative, corroborative or impeaching; d. The evidence is of such a weight that it would probably change the judgment if admitted.

5. Notice of the motion for new trial or reconsideration shall be given to the fiscal. 

SCRA 495).

 Evidence is considered material if there is

reasonable likelihood that the testimony or evidence could have produced a different result and the accused would have been acquitted (Tan Ang Bun vs. CA, 182 SCRA 238).

GROUNDS FOR RECONSIDERATION

(Rule

121, Sec. 3)

1. Errors of law in the judgment; 2. Errors of fact in the judgment. Civil Action

Criminal Action

New Trial 1. 2.

FAME; Newly Discovered Evidence.

1. Errors of law or irregularities committed during trial; 2. Newly Discovered Evidence.

Civil Action

Criminal Action

Reconsideration 1.

Award of excessive damages; 2. Insufficiency of evidence; 3. Decision or final order is contrary to law.

1.

Err ors of law in the judgment; 2. Err ors of fact in the judgment.

EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION (Rule 121, Sec. 6) 1. When a new trial is granted on the ground of: a. Errors of law or irregularities committed during the trial – all proceedings and evidence not affected by the commission of such errors and irregularities shall stand, BUT those affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. b. Newly discovered evidence – the evidence already taken shall stand, and the newly discovered and such other evidence as the court may, in the interest of justice, allow to be introduced, shall be taken and considered together with the evidence already in the record 2. In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly. 

The effect of the granting of a new trial is not to acquit the accused of the crime of which the judgment finds him guilty, but precisely to set aside said judgment so that the case may be tried de novo as if no trial had been conducted before.



Unlike the rule in Civil Cases, the remedy of the aggrieved party being appeal in due time, an order granting a new trial rendered in Criminal Cases is also interlocutory BUT is controllable by certiorari or prohibition at the instance of the prosecution.

REQUISITES FOR A MOTION FOR NEW TRIAL OR RECONSIDERATION (Rule 121, Sec. 4)

1. It must be in writing. 2. It must be filed with the court. 3. It must state the grounds on which it is based. 4. If the motion for new trial is based on newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is expected to be given, or duly authenticated copies of documents which it is proposed to introduce in evidence.

While the rule requires that an affidavit of merits be attached to support a motion for new trial based on newly discovered evidence, yet the defect of lack of it may be cured by testimony under oath of the defendant at the hearing of the motion (Paredes v. Borja, 3

New Trial or Reconsideration under Rule 37 Governed by the

New Trial or Reconsideration under Rule 121 Governed by the

Rules of Civil Procedure

Rules of Criminal Procedure

On motion of the aggrieved party

On motion of the accused or at the court’s instance

Within the period for taking an appeal

Anytime before a judgment of conviction becomes final

Grounds for new trial: (a) fraud, accident, mistake or excusable negligence (FAME) and (b) newly discovered evidence

Grounds for new trial: (a) errors or irregularities prejudicial to the substantial rights of the accused have been committed during trial and (b) new and material evidence has been discovered

Grounds for reconsideration: Damages awarded are excessive, that the evidence is insufficient to justify the decision or final order or that the decision or final order is contrary to law

Errors of law or fact in judgment

RULE 122

APPEAL

WHO MAY APPEAL (Rule 122, Sec. 1) Any party may appeal from judgment or final order, unless the accused will be placed in double jeopardy. Appeal – a proceeding for review by which the whole case is transferred to a higher court for a final determination. Final Judgment – a judgment which would become final if no appeal is taken. Final Order – one which disposes of the whole subject matte or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution of what has been determined.

Interlocutory Order – does not dispose of a case completely, but leaves something more to be done on the merits. Instances When Appeal Does Not Put the Accused in Double Jeopardy 1. If the dismissal is made upon motion, or with the express consent of the accused; 2. If the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; 3. If the question to be passed upon by the appellate court is purely legal so that the case should be remanded to the court of origin for it to determine the guilt or innocence of the accused. General Rule: A private prosecutor in a

criminal case has no authority to act for the People of the Philippines before a court on appeal. It is the government’s counsel, the SolGen, who appears in criminal cases or their incidents before the SC. At the very least, the Provincial fiscal himself, with the conformity of the Solicitor General shall act for the People of the Philippines. Exception: The civil award in a criminal case may be appealed by the private prosecutor on behalf of the offended party or his successors. arellano law WHERE APPEAL MAY BE TAKEN (Rule 122, Sec. 2)

1. RTC – In cases decided by the MeTC, MTCC, MTC, MCTC, 2. CA or SC – decisions by the RTC, in the proper cases provided by law 3. SC – in cases decided by the CA. HOW APPEAL TAKEN (Rule 122, Sec. 3) 1. Appeal to the RTC, or to the CA in cases decided by the RTC in exercise of its original jurisdiction – a. By notice of appeal; b. Filed with the court which rendered the judgment or final order appealed from; and c. By serving a copy thereof to the adverse party. 2. Appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

3. Appeal in cases where the penalty imposed by the RTC is reclusion perpetua, life imprisonment or where a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed – a. By notice of appeal to the CA; b. Filed with the court which rendered the judgment or final order appealed from; and c. By serving a copy thereof to the adverse party. 4. Automatic review by the CA – a. Where the RTC imposed the death penalty; b. Notice of appeal is not necessary. SERVICE OF NOTICE OF APPEAL MAY BE MADE (Rule 122, Sec. 4) 1. Upon the adverse party or his counsel; 2. Registered mail; or 3. By substituted service. WAIVER OF NOTICE (Rule 122, Sec. 5) The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. WHEN APPEAL TO BE TAKEN

(Rule 122,

Sec. 6)

An appeal must be taken within 15 days from promulgation of the judgment or from notice of the final order appealed from. The period for appeal is interrupted from the time the motion for new trial is filed up to the receipt by the accused of the notice of the order “overruling the motion.” APPEAL TO THE REGIONAL TRIAL COURTS (Rule 122, Sec. 9) 1. Transmittal of Original Records Within 5 days from perfection of the appeal, the clerk of court shall transmit the original record to the appropriate Regional Trial Court. 2. Notice to the Parties Upon receipt of the complete record of the case, transcripts and exhibits, the

clerk of court of the Regional Trial Court shall notify the parties of such fact. 3. Submission of Memoranda or Briefs Within 15 days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the RTC to do so. 4. Decision After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed. EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED (Rule 122, Sec. 11) 1. An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. 2. The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. 3. Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. (People vs. Mateo, G.R. Nos. 147678-87, July 7, 2004)

WITHDRAWAL OF APPEAL The RTC, MeTC, MCTC, MTC, MTCC, as the case may be, may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided in Section 8, in which case the judgment shall become final. This is notwithstanding the perfection of the appeal. 

The RTC may, in its discretion allow the appellant from the judgment of a lower court to withdraw his appeal, provided, a motion to that effect is filed before the rendition of the judgment in the case on appeal, in which case the judgment of the court of origin shall become final and the case shall be remanded to the latter court for the execution of judgment.

APPOINTMENT OF COUNSEL DE OFICIO FOR ACCUSED ON APPEAL It shall be the duty of the clerk of court of the trial court upon filing of a notice of appeal:

1. To ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio to defend him. 2. To transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellate to his inquiry.

RULE 123

PROCEDURE IN THE MUNICIPAL TRIAL COURTS UNIFORM PROCEDURE The procedure to be observed in the MeTC, MTC and MCTC shall be the same as in the RTCs, except where a particular provision applies only to either of said courts and in criminal cases governed by the Revised Rule on Summary Procedure.

RULE 124

PROCEDURE IN THE COURT OF APPEALS APPOINTMENT OF COUNSEL DE OFICIO FOR THE ACCUSED (Rule 124, Sec. 2) The clerk of court of the Court of Appeals shall designate a counsel de officio if it appears from the record of the case as transmitted that: 1. The accused is confined in prison; 2. The accused is without counsel de parte on appeal; or 3. The accused has signed the notice of appeal himself. 

An appellant who is not confined in prison may, upon request, be assigned a counsel de officio within 10 days from receipt of the notice to file brief and he establishes his right thereto.

DISMISSAL OF APPEAL FOR ABANDONMENT OR FAILURE TO PROSECUTE GROUNDS (Rule 124, Sec. 8)

1. Appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de officio. 2. Appellant escapes from prison or confinement, 3. Appellant jumps bail; or 4. Appellant flees to a foreign country during the pendency of the appeal. JUDGMENT NOT TO BE REVERSED OR MODIFIED EXCEPT FOR SUBSTANTIAL ERROR (Rule 124, Sec. 10) No judgment shall be reversed or modified unless, the Court of Appeals, after an examination of the record and of the evidence adduced, is of the opinion that an error was committed which injuriously affected the substantial rights of the appellant. SCOPE OF JUDGMENT (Rule 124, Sec. 11) The Court of Appeals may: 1. Reverse, affirm or modify the judgment; 2. Increase or reduce the penalty imposed by the trial court; 3. Remand the case to the Regional Trial Court for new trial or retrial, or 4. Dismiss the case. OTHER POWERS OF THE COURT OF APPEALS (Rule 124, Sec. 12) 1. Try cases and conduct hearings; 2. Receive evidence; 3. Perform all acts necessary to resolve factual issues raised in cases falling under its original and appellate jurisdiction; 4. Grant and conduct new trials or further proceedings. CERTIFICATION OR APPEAL OF CASE TO THE SUPREME COURT (Rule 124, Sec. 13)

Where the CA imposes reclusion perpetua, life imprisonment or a lesser penalty it shall – a. Render judgment; and b. Enter judgment imposing such penalty. 

Such judgment may be appealed to the SC by notice of appeal filed with the CA.

PERIOD FOR FILING MOTION FOR NEW TRIAL (Rule 124, Sec. 14)

At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final. Ground: Newly discovered evidence material to his defense.  If granted, the CA may conduct the new trial or may refer it to the court of origin. MOTION FOR RECONSIDERATION

the appellant, the case shall again be deliberated upon; and If no decision is reached after redeliberation, the judgment of conviction of lower court shall be reversed and the accused acquitted.

RULE 126

(Rule

124, Sec. 16)

A motion for reconsideration shall be filed: 1. Within 15 days from notice of the decision or final order of the Court of Appeals 2. With copies thereof served upon the adverse party, 3. Setting forth the grounds in support thereof.  

The mittimus shall be stayed during the pendency of the motion for reconsideration. No party shall be allowed a second motion for reconsideration of a judgment or final order.

RULE 125

PROCEDURE IN THE SUPREME COURT UNIFORM PROCEDURE (Rule 125, Sec. 1) General Rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. Exceptions: If otherwise provided by1. The Constitution; or 2. The law. REVIEW OF DECISIONS OF THE COURT OF APPEALS (Rule 125, Sec. 2) The procedure for the review by the Supreme Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases. DECISION IF OPINION IS EQUALLY DIVIDED (Rule 125, Sec. 3) When the Supreme Court en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit

SEARCH AND SEIZURE SEARCH WARRANT is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (Rule 126, Sec. 1)



Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions. They are also in the nature of an interlocutory character, because it leaves something more to be done, the determination of the guilt of the accused.

COURT WHERE APPLICATION FOR SEARCH WARRANT SHALL BE FILED (Rule 126, Sec. 2)

1. Any court within whose territorial jurisdiction a crime was committed. 2. 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. 3. If the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. PERSONAL PROPERTIES WHICH MAY BE COVERED BY A SEARCH WARRANT (Rule 126, Sec. 3)

1. Property subject of the offense; 2. Property stolen or embezzled and other proceeds, or fruits of the offense; 3. Property used or intended to be used as the means of committing an offense.

REQUISITES FOR ISSUING SEARCH WARRANT (Rule 126, Sec. 3) 1. The warrant must be issued upon probable cause; 2. Probable cause must be determined personally by the judge; 3. The judge must have personally examined, under oath and affirmation, and in the form of searching questions and answers, the applicant and his witnesses; 4. The warrant must particularly describe the place to be searched and the things to be seized which may be anywhere in the Philippines; 5. The warrant must be issued for one specific purpose or in connection with one specific offense. Probable Cause – such fact and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged has been committed and that the objects sought in connection with the offense are in the place sought to be searched. “Multi-Factor Balancing Test” in determining probable cause – one which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident. Test to Determine Particularity 1. When the description therein is as specific as the circumstances will ordinarily allow ; 2. When the description express as a conclusion of fact not of law, which the warrant officer may be guided in making the search and seizure; 3. When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.

EXAMINATION OF COMPLAINANT; RECORD (Rule 126, Sec. 5) 1. Before issuing the warrant; 2. The judge must personally examine in the form of searching questions and answers the complainant and the witnesses he may produce; 3. In writing and under oath; 4. On facts personally known to them; and

5. Attach to the record their sworn statements, together with the affidavits submitted. ISSUANCE AND FORM OF SEARCH WARRANT (Rule 126, Sec. 6) If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Knock and Announce Principle Generally, officers implementing a search warrant must: a. b.

c.

announce their presence, identify themselves to the accused and to persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language/dialect known and understood by them. When Unannounced Intrusion is Permissible: 1. The person whose premises or is entitled to the possession thereof refuses, upon demand to open it; 2. When such person in the premises already knew of the identity of the officers and of their authority; 3. When the officers are justified, in the honest belief that there is an imminent peril to life and limb; and 4. When those in the premises, aware of the presence of someone outside, are then engaged in activities which justifies the officer to believe that an escape or the destruction of evidence is imminent (Vallejo vs. CA, April 14, 2004)

Remedies to an Unlawful Search 1. A motion to quash the search warrant; 2. A motion to suppress as evidence the objects illegally taken; 3. Where the search warrant is a patent nullity, certiorari lies to nullify the same; 4. Replevin, if the objects are legally possessed.

Exclusionary Rule – any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding. RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH (Rule 126, Sec. 7) The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. SEARCH OF HOUSE, ROOM, OR PREMISE TO BE MADE IN PRESENCE OF TWO WITNESSES (Rule 126, Sec. 8) No search of a house, room, or any other premises shall be made except in the presence of: 1. The lawful occupant thereof; 2. Any member of his family; or 3. In the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. TIME OF MAKING SEARCH (Rule 126, Sec. 9) General Rule: The warrant must direct that it be served in the daytime. Exceptions: A direction may be inserted that the warrant may be served at any time of the day or night, when the affidavit asserts that the property is: 1. On the person; or 2. In the place ordered to be searched. VALIDITY OF SEARCH WARRANT

(Rule

126, Sec. 10)

A search warrant shall be valid for 10 days from its date. Thereafter, it shall be void. General Rule: A search warrant can be used

only once, thereafter, it becomes functus oficio. Exception: When the search conducted on one day was interrupted, in which case, the same may be continued under the same warrant the following day if not beyond the 10-day period (Uy Kheytin vs. Villareal, 42 Phil. 886).

RECEIPT FOR THE PROPERTY SEIZED (Rule 126, Sec. 11)

The officer seizing the property under the warrant must: 1. Give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or 2. In the absence of such occupant, must, in the presence of at least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. DELIVERY OF PROPERTY AND INVENTORY THEREOF TO COURT; RETURN AND PROCEEDINGS THEREON (Rule 126, Sec. 12)

The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. 10 days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made. IF NONE, he shall: 1. Summon the person to whom the warrant was issued; and 2. Require him to explain why no return was made. arellano law IF THE RETURN HAS BEEN MADE, the judge shall: 1. Ascertain whether Section 11 of this Rule has been complied with; and 2. Require that the property seized be delivered to him. The judge shall see to it that the above subsection hereof has been complied with. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. 

A violation of this rule shall constitute contempt of court.



While, under Sec. 9, a search warrant has a validity of 10 days, nevertheless it cannot be used every day of said period and once articles have already been seized under said

warrant, it cannot be used again for another search and seizure, except when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the following day if not beyond the 10-day period.

SEARCH INCIDENT TO LAWFUL ARREST (Rule 126, Sec. 13)

A person lawfully arrested may, without search warrant, be searched: 1. For dangerous weapons; or 2. Anything which may have been used or which may constitute as proof of the commission of an offense.  When the search is incidental to a lawful arrest, the scope thereof should be limited to the area within which the arrestee can reach for a weapon or for evidence in order to destroy it. In the latter case, the person making the arrest may take from the arrestee any property which was the fruit or proceeds thereof or, which may furnish the arrestee with a means of committing violence or effecting an escape or which may be used as evidence at the trial of the case. When a search may be validly conducted without a search warrant: 1. When the owner of the premises waives his right against such incursion; 2. When the search is incidental to a lawful arrest; 3. When it is made on vessels and aircraft, such as for violation of customs laws; 4. When it is made on automobiles or motor vehicles generally for the purpose of preventing violations of smuggling or immigration laws; 5. When it involves prohibited articles in plain view; or 6. In cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations (People v. Rodriguez, G.R. No. 95902, February 4, 1992).

7. Plain view doctrine – objects within the sight of an officer who has the right to be in a position to have that view are subject to seizure and may be presented as evidence (open to the eye and hand). Elements:

a.

A prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b. The evidence was inadvertently discovered by the police who have the right to be where they are; c. The evidence must be immediately apparent; d. Plain view justified mere seizure of evidence without further search (Rosario v. People, 358 SCRA 373).

 The Tariff and Customs Code does not require a search warrant for purposes of enforcing customs and tariff laws. IN WHAT COURT MAY A MOTION TO QUASH BE FILED (Rule 126, Sec. 14) 1. Before the court that issued the warrant 2. Under the Criminal Case Rule, all the incidents arising from the Search Warrant should be consolidated in the court where the criminal case is pending; 3. Under the Alternative Remedy Rule, with the court which issued the search warrant in this motion, all grounds for objection existent or available and known at the time MUST BE INVOKED, otherwise, they are deemed waived.

RULE 127

PROVISIONAL REMEDIES IN CRIMINAL CASES AVAILABILITY OF PROVISIONAL REMEDIES (Rule 127, Sec. 1)  The provisional remedies under this rule are proper only where the civil action for the recovery of civil liability ex delicto has not been expressly waived or the right to institute such civil action separately is not reserved in those cases where reservation may be made.  The requisites and procedure for availing of these provisional remedies shall be the same as those for civil cases. ATTACHMENT (Rule 127, Sec. 2) When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security

for the satisfaction of any judgment that may be recovered from the accused in the following cases: 1. When the accused is about to abscond from the Philippines; 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; 3. When the accused has concealed, removed, or disposed of his property, or is about to do so; and 4. When the accused resides outside the Philippines. SUPPORT in Criminal Cases: see Sec. 6, Rule 61, 1997 Rules of Civil Procedure.

2010

REMEDIAL LAW

EVIDENCE EVIDENCE is the means sanctioned by the Rules of Court of ascertaining in a judicial proceeding the truth respecting a matter of fact. (Sec. 1, Rule 128)

RULE 128

GENERAL PROVISIONS Evidence Distinguished From Proof EVIDENCE

PROOF

The MEDIUM / MEANS of proving or disproving a fact.

EFFECT and RESULT of evidence.  Establishment of a fact by evidence.  The degree and quantity of evidence that produces conviction.

Applicability Of Rules Of Evidence  The rules apply only to judicial proceedings. (Rule 128, Sec. 1) 

The Rules of Court shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases, except by analogy or in a suppletory character and whenever practicable and convenient. (Rule 1, Sec. 4)

 The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization. (Ong Chia vs. Republic, 328 SCRA 749)

KINDS OF EVIDENCE: A. According to its ABILITY TO ESTABLISH THE FACT IN DISPUTE 1. Direct Evidence is evidence which proves a fact in dispute without the aid of any inference or presumption. 2. Circumstantial/Indirect Evidence is proof of facts from which, taken collectively, the existence of the particular fact in dispute may be

inferred as a necessary or probable consequence. 

In appreciating circumstantial evidence, the facts must establish such certainty of guilt of the accused as to convince the judgment beyond reasonable doubt that the accused is the one who committed the offense. (People vs. Ador, 432 SCRA 1)

B. According to WEIGHT AND ACCEPTABILITY 1. Primary/Best Evidence is that which most certainty exhibits the fact in question. 2. Secondary Evidence is that which is inferior to primary/best evidence and permitted by law only when the better evidence is not available. C. According to DEGREE OF ITS VALUE IN ESTABLISHING A DISPUTED FACT 1. Corroborative Evidence - that which tends to confirm, validate or strengthen evidence already presented. It may be of the same kind as that already proffered or may also be of a different type from that previously offered. 

The marked money used in the buy bust operation is not indispensable to drug cases, it is merely corroborative evidence. (People vs. Domingcil, 419 SCRA 291)

2. Cumulative Evidence - additional evidence of the same kind and character that tends to prove the same proposition. 3. Prima Facie Evidence - that which is sufficient to maintain proof of a particular fact until contradicted or overcome by other evidence. 4. Conclusive Evidence - that which is incontrovertible. D. According to its NATURE / FORM 1. Object Evidence (Real / Physical) is that which is addressed to the senses of the court, as where the

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objects are presented for the inspection of the court. Capable of being exhibited to, examined or viewed by the court. Referred to as Evidence by Autoptic Proference. 2. Documentary Evidence is evidence which consists of writings, words, numbers, figures, symbols or other modes of written expression offered as Proof of their Contents. 3. Testimonial/Oral Evidence is the testimony of man, which may be oral, or written.

counteract or disprove facts given in evidence by the adverse party. 5. Positive Evidence is when a witness affirms that a fact did or did not occur. “I know he’s not there.” 6. Negative Evidence is when a witness states that he did not see or know the occurrence of a fact. “I did not know if he was there or not.”  Positive evidence has greater weight than negative evidence. THE BERRY RULE

E. According to its QUALITY 1. Relevant Evidence is evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue. It has a rational probative value. 2. Material Evidence is one that has rational connection to the fact to be proved.  The terms “relevant” and “material”

 

are practically the same. They are used interchangeably by the Supreme Court. To illustrate: In proving the fact of death, a love letter may be relevant but not material. Materiality of evidence is NOT NECESSARY for admissibility

3. Competent Evidence is evidence which is not excluded by the law or by the Rules of Court. 

F.

E.g. A secondary evidence (photocopy) is incompetent in the existence of best evidence (original).

OTHER TYPES OF EVIDENCE 1. Credible Evidence if it is not only admissible evidence but also believable and used by the court in deciding a case. 2. Expert Evidence is testimony of a witness requiring a special knowledge, skill, experience or training which he is shown to possess. 3. Collateral Facts are matters other than facts in issue and which are offered as a basis merely for inference as to the existence or nonexistence of the facts in issue. 4. Rebuttal Evidence is evidence which is given to explain, repel,

REMEDIAL LAW

(Berry vs. State of Georgia

[1891])

Before a New Trial may be granted on the ground of a NEWLY DISCOVERED EVIDENCE, the following must be shown: 1. that the evidence was discovered after trial; 2. such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; 3. it is material and not merely corroborative, cumulative or impeaching; 4. the evidence is of such weight that it would probably change the judgment if admitted. (Custudio vs. Sandiganbayan, 453 SCRA 24)

The question of whether the evidence is Newly Discovered has TWO ASPECTS: a. Temporal Aspect – when the evidence was discovered; b. Predictive Aspect – when it should or could have been discovered. Distinction between Fact and Inference Fact Inference A conclusion derived from what is known.

A statement about the unknown derived from what is known.

Something that is capable of actual demonstration.

A guess supported by reason.

Evidentiary Questions Involved In the Relationship Between Two Facts: A. FACTUM PROBANDUM – the ultimate fact sought to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies.

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B. FACTUM PROBANS – the evidentiary fact by which the factum probandum is to be established; material evidencing the proposition, existent, and offered for the consideration of the tribunal. Distinction between Factum Probandum and Factum Probans FACTUM PROBANDUM

FACTUM PROBANS

The ULTIMATE FACT or fact sought to be established.

The EVIDENTIARY FACT or the fact by which the factum probandum is to be established.

May be ascertained from the: 1. Pleadings 2. Pre-trial order 3. Issues which are tried with the express or implied consent of the parties (Sec. 5, Rule 10)

The material evidencing the proposition.

Conceived of as hypothetical; that which one party affirms and the other denies.

Conceived of for practical purposes as existent, and is offered as such for the consideration of the court.

Note: If a fact is ADMITTED, it cannot be a factum probandum because it is no longer in issue.



REMEDIAL LAW

In order to revive the defense of alibi, it must be shown that there is physical impossibility for the accused to be present at the scene of the crime.

EVIDENCE IS ADMISSIBLE IF: 1. It is relevant to the issue; (Relevancy Test) 2. It is not excluded by law or by any of the rules of evidence, therefore, Competency Test. (Rule 128, Sec.3) TWO AXIOMS OF ADMISSIBILITY BY WIGMORE: 1. Axiom of Relevancy. None but facts having rational probative value are admissible. 2. Axiom of Competency. All facts having rational probative value are admissible unless some specific rule forbids their admission. Distinctions between Admissibility of Evidence and Weight of Evidence Admissibility of Evidence

General Rule: The Rules of Evidence shall be the same in all courts and in all trials and hearings. (Rule 128, Sec. 2) Exceptions: The rules of evidence do not apply to: a. Civil actions and criminal actions governed by the Rules on Summary Procedure; b. Agrarian cases; c. Rules regarding the testimony of witnesses from examinations, etc., in cases under the MTC (where the parties merely submit their position papers and their witnesses’ affidavits and counter-affidavits.);

d. Quasi judicial bodies. ALIBI – not always a weak defense; it is only weak where positive identification exists. Where the latter is present, the same will prevail.





Weight of Evidence

Pertains to the ability of the evidence to be allowed and accepted subject to its relevance and competence.

Pertains to the effect of evidence admitted.

Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission.

The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency.

Admissibility is determined by the law in force at the time the evidence is presented. Therefore there is no vested right of evidence. Failure to object renders evidence that is otherwise admissible to be admitted.

Note: Evidence otherwise inadmissible under the law at the time the action accrued, may be received in evidence provided it is admissible under the law in force during the trial.

3 KINDS OF ADMISSIBILITY OF EVIDENCE 1. Multiple Admissibility – if evidence is relevant and competent for two or more

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purposes under the different rules of law.  e.g., a testimony of a person may be 

part of res gestae, declaration of interest or even a dying declaration. It must be established that an evidence shall be used for more than one purpose. The court will not take judicial notice thereof.

2. Conditional Admissibility – a fact offered in evidence may appear to be immaterial at the time it is offered but relevance or materiality of which will readily be seen when connected to other evidence not yet offered.  Rule: Evidence of such fact may be received on condition that the other facts are subsequently proved.

3. Curative Admissibility – refers to a situation where incompetent evidence was erroneously received by the court despite objection from the other party. It is an incompetent evidence which was allowed and may be cured by a competent or incompetent evidence.  It will not apply where the evidence was admitted without objection because of waiver of the inadmissibility of the evidence.  Where the objection was incorrectly overruled, the court must allow the other party to introduce evidence to contradict the evidence improperly admitted. This is for reasons of fairness.  e.g., where secondary evidence was admitted despite existence of an original, such incompetent evidence may be cured by: a. competent evidence – presentation of original; or b. incompetent evidence – presentation of testimony of a third person not party to the document. RELEVANCE means relation to the facts in issue as to induce belief in its existence or non-existence COMPETENCE means that the evidence is not excluded by the law or the Rules of Court EVIDENCE ON COLLATERAL MATTERS are allowed only when it tends in any

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reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128) Constitutional Rules of Exclusion: “The Fruit of the Poisonous Tree” a) Art. III, Section 3(2) Any evidence obtained in violation of this or the preceding section [ART III Sec. 2 and 3(1)] shall be inadmissible for any purpose in any proceeding. b) Art. III, Section 12(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. c) Art. III, Section 17 No person shall be compelled to be a witness against himself. Rights Protected by the EXCLUSIONARY RULE 1. Right against unreasonable searches and seizure (Art. III, Sec. 2, 1987 Constitution)

2.

Right to privacy and inviolability of communication (Art. III, Sec. 3, 1987 Constitution)

3. Rights of a person under investigation for an offense (Art. III, Sec. 12, 1987 Constitution)

4.

Right against self-incrimination

(Art.

III, Sec. 17, 1987 Constitution)

Absolutely Inadmissible Evidence obtained : 1. From unreasonable searches and seizures; or 2. In violation of the right of privacy of communication and correspondence. Relatively Inadmissible (Inadmissible only against the person whose rights are violated, admissible for other purposes) – Evidence obtained: 1. In violation of the right to be informed of the right to remain silent and to have competent and independent counsel; 2. From means which vitiate the free will; and 3. In violation of the right against selfincrimination. STATUTORY RULES OF EXCLUSION: a) NIRC (National Internal Revenue Code), Sec. 201, as amended by RA 8424

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Sec. 201. Effect of Failure to Stamp Taxable Document. — An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled. Failure to stamp a document required by law to be stamped shall render the document inadmissible in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled (Sec. 201 NIRC).

b) General Banking Act of Republic Act 8791, Sec. 55.1

2000,

Elements of the Exclusion

1. Director, officer, employee, or agent of any bank who discloses; 2. Disclosure to unauthorized person; 3. Information relative to the funds or properties in the custody of the bank belonging to private individuals, corporations, or any other entity; and 4. Without a court order. Note: This provision covers only property in the custody of the bank other than bank deposits. For bank deposits, RA 1405 governs. Note also that the provision does not state the nature of the inadmissibility. It is submitted that it is a rule of absolute inadmissibility.

c) Republic Act 1405: Law on Secrecy of Bank Deposits General Rule: All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office.

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Exceptions:

1. Written permission of the depositor; 2. Impeachment; 3. Order of a competent court in cases of bribery; 4. Dereliction of duty of public officials; 5. Where the money deposited or invested is the subject matter of the litigation; and 6. Anti-Money Laundering Act.

ANTI-WIRE TAPPING ACT REPUBLIC ACT NO. 4200 Unlawful Acts (Republic Act 4200, Sec 1): 1. Any person, not being authorized by all the parties to any private communication or spoken word, to: a. tap any wire or cable; or b. by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie-talkie or tape recorder, or however otherwise described. arellano law

2. Any person to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured in the manner prohibited by this law; 3. Any person to replay the same for any other person or persons; 4. Any person to communicate the contents thereof, either verbally or in writing; or 5. Any person to furnish transcriptions thereof, whether complete or partial, to any other person. Note: The use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition.

CONDITIONS FOR VALID WIRETAPPING (Republic Act 4200, Secs. 2 and 3)

1. Performed by any peace officer; 2. Authorized by a written order of the Court;

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3. In cases involving the crimes of: a. Treason; b. Espionage; c. Provoking war and disloyalty in case of: war, piracy, mutiny in the high seas, rebellion, conspiracy; and proposal to commit: i. rebellion; ii. inciting to rebellion; iii. sedition; iv. conspiracy to commit: a. sedition; b. inciting to sedition, kidnapping, espionage and other offenses against national security. Note: Information obtained in violation of the anti-wiretapping act is absolutely inadmissible, to wit: Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. 





An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line (Gaanan vs. IAC 145, SCRA 112). Even a person privy to a communication who records his private conversation with another without the knowledge of the latter violates the anti-wiretapping act. The recording is inadmissible in evidence (Ramirez v. CA, 248 SCRA 590). Before a TAPE RECORDING is admissible as evidence and given probative value, the following requisites must be established: i. a showing that the recording device was capable of taking testimony; ii. a showing that the operator of the device was competent; iii. establishment of authenticity and correctness of the recording; iv. a showing that changes, additions or deletions have not been made; v. a showing of the manner of preservation of the recording; vi. identification of the speakers; and

vii.

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showing that the testimony elicited was voluntarily made without any kind of inducement. (Torralba vs. People, 467 SCRA 552)

COLLATERAL MATTERS are matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of facts in issue. This term connotes an absence of a direct connection between the evidence and the matter in dispute. 

While the evidence may not bear directly on the issue, it will be admitted if it has the tendency to corroborate or supplement facts established previously by direct evidence, or to induce belief as to the probability or improbability of a fact in issue.

Two Considerations 1. Whether the incompetent evidence is seasonably objected to; and 2. Whether regardless of the objections, the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted.

RULE 129

WHAT NEED NOT BE PROVED 3 THINGS THAT NEED NOT BE PROVED: 1. Matters of mandatory judicial notice; 2. Matters of discretionary judicial notice; 3. Judicial admissions. JUDICIAL NOTICE is when courts may properly take and act on matters without proof because such are already known to it.   

This, however, does not include personal knowledge of the facts by the judge. This is based on consideration of expediency and convenience. It is, thus, a substitute for detailed evidence.

REQUISITES OF JUDICIAL NOTICE: 1. The matter must be of common knowledge;

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2. It must be well and authoritatively settled and not doubted or uncertain; and 3. It must be known to be within the limits of the jurisdiction of the court. 3 KINDS OF JUDICIAL NOTICE 1. Mandatory 2. Discretionary 3. Requiring a hearing A. MANDATORY JUDICIAL NOTICE 1. Existence and territorial extent of states; 2. Their political history, forms of government and symbols of nationality; 3. The law of nations; 4. The admiralty and maritime courts of the world and their seals; 5. The political constitution and history of the Philippines; 6. The official acts of the legislative, executive and judicial departments of the Philippines;  Statutes are not the “acts of the legislative” pertained here. 7. The laws of nature; 8. The measure of time; and 9. The geographical divisions. Note: Courts cannot take judicial notice of foreign laws. [Relate to Rule 39, Sec, 4] (Laureano vs. CA and Singapore Airlines, 324 SCRA 414)

Doctrine of Processual Presumption It lays down the presumption that the foreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable, is either not alleged, or if alleged, is not duly proved before a competent court. 



 

When parties in a case agree on what the foreign law provides, there are admissions of fact which the other parties and the court are made to rely upon, hence they are estopped to subsequently take a contrary position. The mere personal knowledge of the judge is not the judicial knowledge of the court; judicial cognizance is taken only of those matters which are “commonly” known. A fact may be of judicial notice and not of judge’s personal knowledge and vice versa. The rule refers to facts which ought to be known to judges because of their judicial functions.

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B. DISCRETIONARY JUDICIAL NOTICE Refers to matters which are: [ a.k.a. 3 Grounds] 1. Of public knowledge; or 2. Are capable of unquestionable demonstration; or 

3.

e.g., That April 4, 2002 falls on a Thursday.

Ought to be known to judges because of their judicial functions.  e.g., That Filipino women as witnesses are ordinarily docile and timid.

When Court Takes Judicial Notice: 1. During trial; or 2. After trial and before judgment or on appeal. General Rule: Courts should not take judicial notice of the evidence presented in other proceedings, even if these have been tried or are pending in the same court or have been heard and are actually pending before the same judge. (People vs. Kulais, 292 SCRA 551)

Exception: When judge may take judicial notice of record of another case previously tried 1. When, either at the initiative of the judge or that of the parties, and without objection of any party, the record of the previous action may be read and adopted into the present action. 2. When, without the objection on the part of any party, the records of the previous case which are actually withdrawn from the archives and attached to the records of the present action by court order. Judicial Notice of Municipal Ordinances Inferior courts should take judicial notice of municipal or city ordinances in force in their territorial jurisdiction. The Regional Trial Court should take judicial notice of municipal ordinances only when: 1. They are expressly authorized by statute; and 2. On appeals of decisions by the inferior court when such courts had taken notice of a municipal ordinance. When Hearing is Necessary:

(Rule 129, Sec.

3)

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1. During the trial: i. the court motu propio, or on request of a party; and ii. Announces its intention to take judicial notice of any matter. 2. After trial and before judgment or on appeal: i. The court motu propio, or on request of a party; ii. Takes judicial notice of any matter, and iii. Allows the parties to be heard thereon if such matter is decisive of a material issue in the case. 

Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing (p. 88, Francisco).

C. JUDICIAL ADMISSIONS May be verbal or written and made by a party in the course of the proceedings in the same case. Such admission does not require proof. The admission may be contradicted only by showing that: 1. It was made through palpable mistake; or 2. No such admission was made. Note:

General Rule: Judicial admissions should be

made in the same case. Exception: Where there is identity of parties in interest. (Republic Glass vs. Qua, 435 SCRA 480)  

Cross-refer to Extra-judicial Admission. If the admission was made outside the proceedings or in another case, it is also admissible under admissions of a party. (Rule 130, Sec. 26)

INSTANCES OF JUDICIAL ADMISSIONS 1. The genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath. (Rule 8, Sec. 8) 2. Material allegations in the complaint, when the other party fails to specifically deny it. (Rule 8, Sec. 11)

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3. Admissions in superseded pleadings, when offered in evidence. (Rule 10, Sec. 8) 4. Act, declaration, or omission of a party as to a relevant fact. (Rule 130, Sec. 26) 5. Implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised. (Rule 130, Sec. 27)

6. Admission by silence. (Rule 130, Sec. 32) 7. Admissions obtained through depositions, written interrogatories or requests for admissions.  As far as the one who offered it, depositions are admissions. JUDICIAL ADMISSIONS IN PLEADINGS LATER AMENDED In civil cases, an amended pleading becomes a judicial admission; and the contents of the pleading it amended is not included in the amended pleading, becomes extra-judicial admissions which must be offered in evidence for it to be considered by the trial court. General Rule: Judicial admissions made in

one case are admissible at the trial of another case provided they are proved and are pertinent to the issue involved in the latter. Exceptions:

1. The said admissions were made only for purposes of the first case, as in the rule of implied admissions and their effects under Rule 26; 2. The same were withdrawn with the permission of the court therein; and 3. The court deems it proper to relieve the party therefrom. SELF-SERVING RULE:  

It prohibits the admission of declaration of a witness in his favor. It applies only to extrajudicial admission and not those made in open court. The admission made in open court is admissible because the witness may be cross-examined on the matter. It is however up to the court to appreciate the same.

RULE 130

RULES OF ADMISSIBILITY

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A. OBJECT / REAL EVIDENCE (Sec. 1, Rule 130) Evidence addressed to the senses of the court. 



Always accompanied by testimonial evidence to support the object presented which is not a rule of exclusion. Ocular inspection qualifies as object evidence.

REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE: 1. Relevant; 2. Competent; 3. Identified; Not present in 4. Authenticated; Testimonial 5. Duly Marked; and Evidence 6. Formally Offered

3. 4.

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Offensiveness to human sense; and Inconvenience and unnecessary expense of litigation.

Note: Photographs are real evidence, but they should be authenticated by: 1. The one who took the picture; and 2. The person in the picture.

B. DOCUMENTARY EVIDENCE (Sec. 3, Rule 130) Refers to writings and any material containing modes of written expressions offered as proof of their contents.  

Any object or material having any matter expressed or described upon it by marks capable of being read. If offered as proof of the existence of such document, it is an object evidence.

Note: Appearance of the victim is object evidence. (People vs. Rullepa, 398 SCRA 567) Ocular Inspection or “View” – the court can go to the place where the object is located, when object evidence cannot be brought to court.

REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE: 1. Relevant; 2. Competent; 3. Identified; Not present in 4. Authenticated; Testimonial 5. Duly Marked; and Evidence 6. Formally Offered

“View” Part of the Trial The inspection or view outside the courtroom should be made in the presence of the parties; or at least with previous notice to them in order that they may show the object to be viewed. Such inspection is a part of the trial, inasmuch as evidence is thereby being received.

Documents Under the Rules on Electronic Evidence  Electronic documents are the functional equivalents of paper-based documents.  Any reference to a document under the rules on evidence shall be deemed to include electronic evidence.

Real Evidence

Demonstrative Evidence

Tangible object that played some actual role in the matter that gave rise to the litigation.

Tangible evidence that merely illustrate a matter of importance in the litigation.

GROUNDS FOR EXCLUDING OBJECT EVIDENCE: Inherent Limitations: a. Irrelevance / immateriality; and b. Illegally obtained evidence. Non-inherent Limitations: 1. Undue prejudice; 2. Indecency or impropriety;

RULES IN DOCUMENTARY EVIDENCE 1. Best Evidence 2. Parol Evidence 3. Electronic Evidence 1. BEST EVIDENCE (Sec. 3, Rule 130) General Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. Exceptions: (a.k.a. Secondary Evidence Rule) When the original: 1. Has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

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2.

3.

4.

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; 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; and The original is a public record in the custody of a public officer or is recorded in a public office. (Rule 130, Sec. 3)

PURPOSES: 1. To prevent fraud – If a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat. 2. To exclude uncertainties in the contents of a document – the best evidence rule accepts the document itself as the best evidence of its contents because it is certain; and rejects a copy thereof, because of the uncertainty of its contents caused by the hazards of faulty duplication, or an oral description thereof, because of the uncertainty caused by the frailties of human recollection. When Best Evidence Rule does not apply: 1. Where the transactions have been recorded in writing but the contents of such writing are not “the subject of inquiry”, the best evidence rule does not apply. 2. The best evidence rule is not involved if the content of affidavits or depositions are not the issues in the case but are only intended as evidence to establish the issue in controversy. The use of said affidavits is regulated by the hearsay evidence rule. 

The best evidence rule does not apply to the marked money in a buy bust operation because the inquiry is not on the contents of

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the marked bill, but merely its existence (People v. Tandoy, 192 SCRA 28).

When Is A Document Original

(Rule 130,

Sec. 4)

1. When one the contents of which are the subject of inquiry; 2. When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals; or 3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. Note: Carbon copy is not secondary evidence but a duplicate original. However when it is made and signed at the same time as the original, it becomes primary evidence. SECONDARY EVIDENCE (Sec. 5, Rule 130) When Secondary Evidence may be admitted: 1. The original has been lost or destroyed, or cannot be produced in court: a. Prove due execution or existence; b. Prove cause of unavailability without bad faith on the part of the offeror; and c. Proof of contents in the following order: 1. Copy of the writing; 2. Recital of its contents in some authentic document; or 3. Recollection of the witness. (Rule 130, Sec. 5) 

Where the original has been lost or destroyed, the offeror may prove its contents by a recital of its contents in some authentic document or by testimony of witnesses. The certificate is one such authentic document. (Municipality of Victorias vs. CA, 149 SCRA 32)



Failure to prove loss of all the originals without fault of the offeror renders secondary evidence inadmissible. (De Vera vs. Aguilar, 218 SCRA 602)



If you avail of secondary evidence, establish: Existence, Execution, Loss and Contents; in that order. It may be changed at the discretion of the judge. (De Vera vs. Aguilar, 218 SCRA 602)

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2.

The original is in the custody or under the control of the adverse party: a. Adverse party had reasonable notice to produce the original (Subpoena duces tecum);

Authentic Document means that the document should be genuine; it need not be public.

Note: No particular form of notice is

General Rule: Any public record, an official

required, as long as it fairly apprises the other party as to what papers are desired. Even an oral demand will suffice.

b. Proof of the original’s existence; c. Adverse party fails to produce the original; and d. Proof of contents in the following order; 1. Copy of the writing; 2. Recital of its contents in some authentic document; or 3. Testimony of witnesses. (Rule 130, Sec. 6) 3.

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; (Rule 130, Sec. 3[c])

4.

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The original is a public record in the custody of a public officer or is recorded in a public office – contents may be proved by a certified copy issued by the public officer in custody thereof. (Rule 130, Sec. 7)

Note: A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (Rule 130, Sec. 8)

Substitutionary Rule – if the original is not available, the same may be substituted by presenting the following in the order stated: 1. Copy of the writing; 2. Recital of its contents in some authentic document; or 3. Testimony of witnesses. (Rule 130, Sec. 5)

Definite Evidentiary Rule – the order does not apply where the law specifically provides for the class or quantum of secondary evidence to establish the contents of the document.

Doctrine Record:

of

Irremovability

of

Public

copy of which is admissible in evidence, must not be removed from the office in which it is kept. Exception: Upon order of a court, where inspection of the record is exercised to the just determination of a pending case. What Attestation of Copy Must State: a. The copy is a correct copy of the original, or a specific part thereof. b. Under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.  When the existence of a document is proven, the court should allow the lost document to be proven by parole; testimony of a witness need not be verbatim (Vda. de Corpus v. Brabangco, (C.A.) 59 O.G. 8262).  The voluminous character of accounts must be established, and it must be made available to the adverse party before parole; audit made by or testimony of private auditor is inadmissible as proof of original record or books of accounts; auditor’s opinion not admissible; best evidence on cost of equipment are sales invoices not testimony of an auditor (Compañia Maritima vs. Allied Free Workers Union, 77 SCRA 24).  It is not necessary for a party seeking to introduce a copy, to prove that the original is in actual possession of the adverse party as long as it is under his control; the adverse party need not admit that it is in his possession before a copy may be introduced (Villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845).

2. PAROL EVIDENCE (Sec. 9, Rule 130) Means extrinsic evidence or evidence aliunde. It forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that at or before the signing of the document, other or different terms were orally agreed upon by the parties. It refers not only to oral but also written evidence as long as they are outside of or extraneous to the written contract between the parties. General Rule:

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

Rule 130, Sec. 9, par. 1: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

To give stability to written agreement and remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible. 

Exceptions: A party may present evidence

to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: 1. An intrinsic ambiguity, mistake or imperfection in the written agreement; 2. Failure of the written agreement to express the true intent and agreement of the parties; 3. Validity of the written agreement; or 4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. 







If the ground is “subsequently-agreed” terms, the “subsequently-agreed” terms must also be put in issue in the pleadings. The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the Parol Evidence Rule does not apply, such evidence is admissible. Parol Evidence Rule applies only to the parties to the agreement. It does not apply where Parol Evidence Rule is invoked against a litigant who is a stranger to the agreement. General Rule: Parol evidence is admissible if there are mistakes or imperfections Exception: If the party fails to allege such in the pleadings. (Philippine National Railways vs. CIR of Albay, 83 SCRA 569)

Requisites for Applicability of Parol Evidence Rule: 1. There must be a valid contract; 2. The terms of the agreement must be reduced to writing; and 3. The dispute is between parties and their successors in interest. Purpose of the Rule:

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The rule applies only to INTEGRATED AGREEMENTS; thus, unless the written instrument was intended by both parties as the final and exclusive memorial of their dealings, the rule does not apply.

Theory Of Integration Of Jural Acts – previous acts and contemporaneous transaction of the parties are deemed integrated and merged in the written instrument which they have executed. 

When the parties have reduced their agreement to writing, it is presumed that they have made the writing the ONLY REPOSITORY and MEMORIAL OF THE TRUTH, and whatever is not found in the writing must be understood to have been waived and abandoned.

Exception: Collateral Oral Agreement - a contract made prior to or contemporaneous with another agreement and IF ORAL and NOT INCONSISTENT with written contract IS ADMISSIBLE within the exception to parol evidence rule. An Agreement is “COLLATERAL” if it meets the following requirements: a. It is not a part of the integrated written agreement in any way; b. It is not inconsistent with the written agreement in any way, including both the express and implied provisions of the written agreement; and c. It is not closely connected with the principal transaction as to form part and parcel thereof. KINDS OF AMBIGUITY: 1. Intrinsic or Latent Ambiguity – when the writing on its face appears clear and unambiguous, but there are collateral matters or circumstances which makes the meaning uncertain. 2. Extrinsic or Patent Ambiguity – ambiguity is patent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used. 3. Intermediate Ambiguity – where the ambiguity consists in the use of equivocal words designating the person

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or subject matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used. 4.

Distinctions between Parol Evidence Rule and Best Evidence Rule Parol Evidence Rule

Best Evidence Rule

As to availability of the original Presupposes that the original is available in court.

Contemplates a situation when the original is not available in court and/or there is a dispute as to whether said writing is the original.

As to what is prohibited by the rule Prohibits the varying of the terms of a written agreement.

Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of whether or not it varies the contents of the original

Parol Evidence Rule

Best Evidence Rule

As to who may invoke the rule Can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby.

Can be invoked by any party to an action regardless of whether such party participated or not in the writing involved.



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The evidence aliunde is testimonial evidence documentary evidence.

either or

Principle of “Falsa Demonstratio Non Nocet Cum De Corpore Constat": False description does not injure or vitiate a document, provided that the thing or person intended has once been sufficiently described. Rule on Conditional Agreements: 1. Conditions Precedent – may be established by parol evidence because there is no varying of the terms of the written contract by extrinsic agreement for the reason that there is no contract in existence; there is nothing upon which to apply the excluding rule. 2. Conditions Subsequent – may not be established by parol evidence. RULE ON SUBSEQUENT AGREEMENTS: Parol Evidence Allowed. The rule forbidding the admission of parol evidence to alter or contradict a written instrument does not apply so as to prohibit the establishment by parol evidence of an agreement between the parties in writing, entered into subsequent to the time when the written instrument was executed, notwithstanding that such agreement may have the effect of changing the contract of the parties as evidenced by the writing; for parol evidence merely goes to show that the parties have exercised their right to change the same, or to make a new and independent contract, provided such contract is not invalid under the statute of frauds or otherwise.

As to documents to which it may be applicable

Express Trusts on Immovables

With the exception of wills, applies only to documents which are contractual in nature.

Cannot be proved by parol evidence. STATUTE OF FRAUDS (Art. 1403 and 1405 NCC):  If the following agreements are not in writing and subscribed, it is unenforceable and evidence thereof is inadmissible: 1. Special promise to answer for the debt, default, or miscarriage of another; 2. Obligations not to be performed within a year from the making thereof;

Applies to all kinds of writing.

Note: INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidence aliunde or extraneous evidence and will be admissible as long as such ambiguity is put in issue.

PATENT AMBIGUITY cannot be cured by evidence aliunde, and are therefore inadmissible.

(Art. 1443,

NCC)

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3. Agreement made in consideration of marriage, other than a mutual promise to marry; 4. Agreement for the sale of goods, chattels or things in action, at a price not less than P500, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; 5. Lease for more than 1 year, or sale of real property or of an interest therein; 6. Representation as to the credit of a 3rd person. Exceptions:  Failure to object to the presentation of oral evidence, or  Acceptance of benefit under the agreement 



Parol Evidence Rule does not apply to receipts because it is not an agreement. It is proof only of delivery of money. Furthermore, the parole evidence bars only evidence as to the terms, it does not bar evidence as to statement of facts. The receipt of money is merely a statement of fact. Lastly, failure of the adverse party to object renders parole evidence admissible (Cruz v CA, 192 SCRA 209). In a foreclosure of REM case, plaintiff invokes the registered mortgage agreement. Defendant answered that the contract did not express the true agreement of the parties because it did not include the undertaking of plaintiff to construct roads on the land. Furthermore, defendant argued that the ordinance that requires the construction of such roads in the subdivision before the lots could be sold is deemed included in the contract. Since the answer alleged that the contract did not express the true intention of the parties, it has therefore been put in issue in the pleadings. The same may therefore be subject of parole evidence. (Enriquez v. Ramos, 6 SCRA 219 (1962)

Settlement & Development Corp. v. Garcia Plantation, 7 SCRA 750) 

Parol Evidence Rule does not apply where the purpose of parol evidence is to show that no written contract ever existed. (Maulini v. Serrano, 28 Phil. 640)



Assurances made by an indorser that the drawer has funds, which assurances induced bank to cash the check, are admissible in evidence. (PNB vs. Seeto, 91 Phil. 756)



Inducement by fraud may be proved by parol because it goes into the validity of the agreement. (Woodhouse vs. Halili, 93 Phil. 526)



Parol evidence may be received to determine whether the written agreement contains any reference to the collateral agreement and whether the action is at law or in equity even if it deals with related matters. (Robles vs. Lizarraga, 50 Phil. 387)



Parol Evidence Rule is not applicable where suit is between one of the parties to the document and 3rd persons. Parol Evidence Rule does not apply and may not be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or privy to the written agreement and does not base a claim on the instrument; both parties to the agreement must be parties to the suit. (Lechugas vs. CA, 143 SCRA 335)



Parol Evidence Rule does not specify that the agreement be a public document; need not be in any particular form or signed by the parties; fraud must be corroborated. (Inciong vs. CA, 257 SCRA 578)



Contemporaneous conditions not referred to in the contract can not be proven by parol; merely alleging that the contract is subject to conditions does not “put” the exception “in issue in the pleadings.” (Ortañez vs. CA, G.R. No. 107372. January 23, 1997)

3. ELECTRONIC EVIDENCE E-Commerce Law (Republic Act No. 8792) 



Parol evidence is inadmissible to incorporate additional contemporaneous conditions which are not mentioned at all in the writing, unless there is fraud or mistake. (Yu Tek & Co. v. Gonzales, 29 Phil. 384)



Exception to Parol Evidence Rule may be put in issue in answer to counterclaim; when operation of contract made to depend upon occurrence of an event, which for that reason is a condition precedent, such may be established by parol evidence, since if it is proven, there will be no contract. (Land

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

The Supreme Court has strengthened the principle of functional equivalence in the E-Commerce Act, according to which electronic documents that meet the requirements of the Act are considered the functional equivalent of paper-based documents. Text messages have been classified as “ephemeral electronic communication” under Sec. 1(k) of rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person

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who was a party to the same or has oersonal knowledge thereof. (Vidallon-

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video, symbols or other modes of expression or perform any one or more of these functions.

Magtolis vs. Salud, 469 SCRA 439)

RULES ON ELECTRONIC EVIDENCE A.M. NO. 01-7-01-SC, AUGUST 1, 2001

RULE 1

“Digital Signature” - an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine:  whether the transformation was created using the private key that corresponds to the signer’s public key; and  whether the initial electronic document had been altered after the transformation was made.

Scope: - Applies whenever an electronic data message is offered or used in evidence.

“Digitally signed” - an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

Cases Covered: - These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases.

“Electronic data message” - information generated, sent, received or stored by electronic, optical or similar means.

APPLICATION OF THE OTHER RULES ON EVIDENCE: In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply. RULE 2: DEFINITION OF TERMS “Asymmetric or public cryptosystem” - a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature. “Business records” - include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes. “Certificate” - an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair. “Computer” - any single or interconnected device or apparatus, which, by electronic, electromechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice,

“Electronic document” - information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. - Includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with electronic data message”. “Electronic key” - a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key. “Electronic signature" - any distinctive mark, characteristic and/or sound in electronic form representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures.

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“Ephemeral electronic communication” telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

Privileged Communication The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document.

“Information and Communication System” - a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data message or electronic document. “Key Pair” in an asymmetric cryptosystem - the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates. “Private Key” - the key of a key pair used to create a digital signature. “Public Key” - the key of a key pair used to verify a digital signature.

 

Construction: Liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases. The interpretation of these Rules shall also take into consideration the international origin of R.A. No. 8792, a.k.a. Electronic Commerce Act.

RULE 3: ELECTRONIC DOCUMENTS Electronic Documents as Functional Equivalent Of Paper-Based Documents (Principle of Functional Equivalence): Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document. Admissibility: An electronic document is admissible in evidence if: 1. It complies with the rules on admissibility prescribed by the Rules of Court and related laws; and 2. Authenticated in the manner prescribed by these Rules.

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

Text messages may be admitted as evidence. (Vidallon-Magtolis vs. Salud, 469 SCRA 439)



The SC admitted the evidence even if there was no authentication due to the Extradition Treaty between Hong Kong and the Philippines. In this case, there is urgency. (Cuevas vs. Muños, 348 SCRA 592)



Filing a pleading by facsimile is not allowed by the Rules of COMELEC and the Rules of Court, which is suppletory. (Garvida vs. Sales, Jr., 271 SCRA 767)



Here, facsimile signature was allowed because: 1. It is not proscribed by law; and 2. There is waiver because the CENR Commissioner himself referred to such signature, thus admitting its validity. (Heirs of Sabanpan vs. Comorposa, 408 SCRA 692)

RULE 4: BEST EVIDENCE RULE Original of an Electronic Document: An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Copies as Equivalent of the Originals General Rule: When a document is in two or more copies, 1. Executed at or about the same time with identical contents; 2. Is a counterpart produced by the same impression as the original; 3. From the same matrix; 4. By mechanical or electronic rerecording; 5. By chemical reproduction; 6. Other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Exceptions:

1.

A genuine question is raised as to the authenticity of the original; or 2. It would be unjust or inequitable to admit a copy in lieu of the original under the circumstances.

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1. RULE 5: AUTHENTICATION OF ELECTRONIC DOCUMENTS Burden of Proving Authenticity: The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. Who May Authenticate? 1. One who is a party to the document – even notaries public; 2. Other persons privy to the document; and 3. Experts. Manner of Authentication: Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: 1. By evidence that it had been digitally signed by the person purported to have signed the same; 2. By evidence that other appropriate security procedure or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or 3. By other evidence showing its integrity and reliability to the satisfaction of the judge. Proof of Electronically Notarized Document: A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. RULE 6: ELECTRONIC SIGNATURES 



An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document. Authentication of electronic signatures may be authenticated in any of the following manner:

By evidence that a method or process was utilized to establish a digital signature and verity the same; 2. By any other means provided by law; or 3. By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. Disputable Presumptions In Relation To: Electronic Signature Upon the authentication of an electronic signature, it shall be presumed that: 1. The electronic signature is that of the person to whom it correlates; 2. The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and 3. The methods or processes utilized to affix or verity the electronic signature operated without error or fault. Digital Signatures Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the abovementioned paragraph, that: 1. The information contained in a certificate is correct; 2. The digital signature was created during the operational period of a certificate; 3. The message associated with a digital signature has not been altered from the time it was signed; and 4. A certificate had been issued by the certification authority indicated therein. RULE 7: EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS Factors for Assessing Evidentiary Weight: 1. The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message

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2. 3.

4. 5.

6.

or document, in the light of all the circumstances as well as any relevant agreement; The reliability of the manner in which its originator was identified; The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; The familiarity of the witness or the person who made the entry with the communication and information system; The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.

Integrity of an Information And Communication System In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: 1. Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; 2. Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or 3. Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party tot he proceedings and who did not act under the control of the party using it. RULE 8: BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE A memorandum, report, record or data compilation of acts, events, conditions,

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opinions, or diagnoses, made by electronic, optical or other similar means shall be excepted from the rule on hearsay evidence provided that: 1. It was made at or near the time of or from transmission or supply of information by a person with knowledge thereof; 2. It was kept in the regular course or conduct of a business activity; 3. Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means; 4. All of which are shown by the testimony of the custodian or other qualified witnesses. Overcoming the presumption: The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.

RULE 9: METHOD OF PROOF Affidavit of evidence All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. Cross-Examination of Deponent The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. RULE 11: AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE Audio, Video and Similar Evidence Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it: 1. shall be shown, presented or displayed to the court; and 2. shall be identified, explained or authenticated by the person who made the recording or by some other person

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competent to testify on the accuracy thereof. Ephemeral Electronic Communication  Shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.  A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.  If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply. INTERPRETATION OF DOCUMENTS Rules on interpretation of documents  Interpretation of a writing according to its legal meaning in the place of execution (Rule 130, Sec 10)  Instrument construed so as to give effect to more provisions (Rule 130, Sec 11)  Interpretation according to intention of the parties (Rule 130, Sec 12)  Particular provisions over general provisions (Rule 130, Sec 12)  Interpretation according to circumstances of the parties and the subject (Rule 130, Sec 13)  Terms presumed to be used in primary and general acceptation, evidence of local, technical, or peculiar signification use admissible (Rule 130, Sec 14)  Written words control printed (Rule 130, Sec 15) 







When the characters are difficult to decipher, or the language is foreign, the evidence of experts and interpreters is admissible (Rule 130, Sec 16) When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other to have understood it (Rule 130, Sec 17) When different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. Preference for natural right (Rule 130, Sec 18)



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Usage may be considered

(Rule 130, Sec

19)

C. TESTIMONIAL EVIDENCE

1. QUALIFICATION OF WITNESSES (Sec. 20, Rule 130) WITNESS is a person who testifies in a case or gives evidence before a judicial tribunal. Qualifications of Witnesses: 1. Can perceive; and perceiving, can make known their perception to others; 2. Must take either oath or affirmation; and 3. Must not possess the disqualifications imposed by law or the rules. Persons Disqualified to be a Witness: 1. Persons disqualified by reason of mental incapacity or immaturity (Rule 130, Sec 21) 2. 3.

Persons disqualified by reason of marriage (Rule 130, Sec 22) Persons disqualified by reason of death or insanity of adverse party (Rule 130, Sec 23)

4.

Persons disqualified on ground privileged communication (Rule 130,

of Sec

24)

Note: With regard to the subject matter of the testimony, we must make a distinction between absolute disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised upon the calling of the disqualified witness. Objections based on relative disqualifications may be raised when it becomes apparent that the subject matter of the testimony covers inadmissible matters.

Absolute Disqualifications: 1. Cannot perceive (Rule 130, Sec 20); 2. Cannot make known their perception to others (Rule 130, Sec 20); 3. Those disqualified by reason of insanity or immaturity; 4. Marital disqualification (Rule 130. Sec 22); and 5. Parental and filial privilege (Rule 130, Sec 25). Relative Disqualifications: 1. Dead man’s statute (Rule 130, Sec 23);

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2. Marital communication privilege [Rule 130, Sec 24(a)]; 3. Attorney-client privilege [Rule 130, Sec 24(b)]; 4. An attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been acquired in such capacity [Rule 130, Sec 24(b)]; 5. Physician-Patient Privilege [Rule 130, Sec 24(c)]; 6. Priest-Penitent Privilege [Rule 130, Sec 24(d)]; and 7. State Secrets [Rule 130, Sec 24(e)]. Not Grounds for Disqualification: 1. Religious belief; 2. Political belief; 3. Interest in the outcome of the case; or 4. Conviction of a crime, unless otherwise provided by law, except:  A state witness must not have been convicted of any crime involving moral turpitude [Rule 119, Sec. 17 (e)] Competency Of Witness refers to the legal fitness or ability of a witness to be heard on the trial of a case.

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5. He should not, at any time, been convicted of a crime involving moral turpitude.

THE RULE ON EXAMINATION OF A CHILD WITNESS A.M. No. 00-4-07-SC; December 15, 2000

Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. The requirements of a child’s competence as a witness are; 1. Capacity of observation; 2. Capacity of recollection; and 3. Capacity of communication. (Recto vs. Republic, 440 SCRA 79)

When to Raise Objection to Competency: At any time during the examination or crossexamination; but it should be made as soon as the facts tending to show incompetency are discovered. Test of Competency: Whether the individual has sufficient understanding to appreciate the nature and obligation of an oath, and sufficient capacity to observe and describe the facts in regard to which he is called to testify. Voir Dire Examination is a preliminary examination conducted by the trial judge where the witness is duly sworn to answer as to his competency. This is conducted by asking leading questions. Discharge of Accused to be a State Witness Requisites: 1. Absolute necessity of testimony; 2. No other direct evidence available; 3. Testimony can be substantially corroborated in its material points; 4. Accused does not appear to be the most guilty;

COMPETENCY UNDER THIS RULE: Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. 

Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

Child Witness - any person who at the time of giving testimony is below the age of 18 years. In child abuse cases a child includes one over 18 years of age but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

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Facilitator – means a person appointed by the court to pose questions to a child. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent or relative.

offer such statement and its particulars to provide him a fair opportunity to object. 

Support Person - a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. BEST INTEREST OF THE CHILD RULE The totality of the circumstances and conditions as are most congenial to the survival, protection and feelings of security of the child and most encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth of the child. 

The public may be excluded from the courtroom when they do not have a direct interest in the case.

The court may: 1. Allow the child witness to testify in a narrative form; 2. Allow leading questions in all stages of the examination of a child if the same will further the interests of justice. Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and noncriminal cases. Exception to the Hearsay Rule: A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or noncriminal proceeding subject to the following rules: 1. Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to

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

2.

If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

In ruling the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof, based on various factors provided by the law, which provide sufficient indicia of reliability.

SEXUAL ABUSE SHIELD RULE: The following evidence is NOT admissible in any criminal proceeding involving alleged child sexual abuse: 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and 2. Evidence offered to prove the sexual predisposition of the alleged victim. Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of the semen, injury, or other physical evidence shall be admissible. Exception:



It is likewise settled jurisprudence that testimonies of child-victims are given full weight and credit. When a woman or a child says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed. (People vs. Pulanco, G.R. No. 141186, November 27, 2003)



Being a mental retardate is not per se a disqualification; although speech was slurred, testimony was positive, clear, plain and unambiguous. (People vs. Salomon, 229 SCRA 402)



Any child, regardless of age, can be a witness as long as he meets the qualifications for competency: observation, recollection, and communication. (People vs. Mendoza, G.R. No. 113791, February 2, 1996)

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MARITAL DISQUALIFICATION RULE: (Sec. 22, Rule 130) Requisites: 1. Marriage subsists; 2. A spouse is a litigant; 3. No consent from the spouse-litigant; and 4. Not a civil case by one against the other, or a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. Reason for the Rule: To obviate perjury and to prevent domestic disunity and unhappiness. Distinction between Marital Disqualification and Marital Privilege Marital Marital Privilege Disqualification (Sec. 24) (Sec. 22) Covers all matters regardless of source

Covers only those communicated by one spouse to another

Applies during the marriage

Applies during and after the marriage

A spouse must be a litigant

A spouse need not be a litigant

Invoked when a spouse is called to testify

Invoked when the testimony appears to cover privileged matters

Absolute disqualification

Relative disqualification

The exceptions under the marital disqualification and marital communications rule are the same.

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

A wife who is a co-defendant of her husband in a case of collusive fraud, where their interests are not separate, can not be examined as a hostile witness by the adverse party. (Lezama vs. Rodriguez, 23 SCRA 1166)



Another exception to the Marital Disqualification Rule: when the relations (harmonious relationship/domestic peace) the State seeks to protect is already strained. (Alvarez vs. Ramirez, 473 SCRA 72)

DEAD MAN’S STATUTE (a.k.a. Survivorship Rule): (Sec. 23, Rule 130) Applies only to a civil or special proceeding. Requisites:

1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted; 2. That the action is against an executor or administrator or other representative of a deceased person or a person of unsound mind; 3. That the subject matter of the action is a claim or demand against the estate of the deceased person or against person of unsound mind; and 4. That his testimony refers to any matter of fact which occurred ante lite motam (before the death of such deceased person or before such person became of unsound mind). Assignor herein refers to an assignor of a cause of action which has already arisen and not the assignor of a right before any cause of action accrued.

Note:

MARRYING THE WITNESS: An accused can effectively “seal the lips” of a witness by marrying the witness. As long as a valid marriage is in existence at the time of the trial, the witness-spouse cannot be compelled to testify even when the crime charged is against the witness, and even though the marriage was entered into for the express purpose of suppressing the testimony. Who May Object: Only the spouse-party may object on the testimony and not the spouse who is offered as a witness.

Purpose of the Rule: To guard against the temptation to give false testimony on the part of the surviving party, and to put the parties to the suit in equal footing with regard to the opportunity to produce evidence (since adverse party can no longer rebut testimony). Distinction between Dead Man’s Statue and Marital Disqualification Rule Dead Man’s Statute Only partial disqualification as the witness is only prohibited from testifying on the

Marital Disqualification Rule It is a complete and absolute disqualification.

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man’s statute is not applicable. (Reyes vs. Wells, 54 Phil 102)

matters therein specified. Applies only to a civil case or special proceeding over the estate of a deceased or insane.

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Applies to a civil or criminal case, subject only to the 2 exceptions provided therein: 1) in a civil case by one against the other; or 2) in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendant.

 Facts favorable to the deceased are NOT prohibited: Inasmuch as the statutes are designed to protect the interest of a deceased or insane person, they do not exclude testimonies which are favorable to the representative of such person.

WHEN THE “Dead Man’s Statute” OR “Survivorship Rule” DOES NOT APPLY: 1. Testimony of mere witnesses who are neither party plaintiffs, nor their assignors, nor persons in whose behalf a case is prosecuted 2. If the plaintiff is the executor or administrator or other representative of a deceased person, of the person of unsound mind 3. In an action against a partnership 4. If the person/s mentioned under the rule files a counterclaim 5. When the testimony refers to fraudulent transactions committed by the persons mentioned in the rule 6. When there is a waiver 7. When the testimony of a plaintiff refers to the non-occurrence of a fact because in that case, the plaintiff does not testify on the occurrence of a fact but on its non-occurrence 8. In cadastral cases 

The dead man’s statute does not apply where the case is filed by the estate. Besides, crossexamination of the witness is a waiver of the privilege. (Razon vs. IAC, 207 SCRA 234)



If the witness sought to be disqualified is not the plaintiff (e.g. disinterested 3rd party), the dead



Mere witnesses not parties to the case are not disqualified by the dead man’s statute. Furthermore, the rule requires that the defendant must be the estate. It does not apply where the heirs are being sued in their individual capacities. “Representatives” are only those who, like the executor, are sued in their representative, not personal, capacity. (Guerrero vs. St. Clare’s Realty 124 SCRA 553)



This in effect ruled that the Dead Man’s Statute can not be invoked against a plaintiff-corporation. Interest no longer disqualifies a witness. Officers/stockholder of corporation may testify in a case filed against the estate of a deceased by the corporation. (Lichauco vs. Atlantic Gulf, 84 Phil. 330)



If there is no instrument evidencing the claim, it would be difficult to prove the claim in the estate proceeding because of the dead man’s statute. However, if there is such an instrument, it is not barred by the dead man’s statute. (Neibert vs. Neibert, April 29, 1961)



The prohibition does not apply when testimony is offered to prove a claim less than what is established under a written contract. (Icard vs. Marasigan, 71 Phil 419)



Heirs of a deceased are “representatives” within the ambit of the dead man’s statute; the rule is waived by the defendant if he files a counterclaim against plaintiff; adverse party may testify to transactions or communications with deceased which were made with an agent of such person if the agents is still alive and can testify as long as it is confined to the transactions. (Goñi v. CA, 144 SCRA 222)



Where the plaintiff is sued for counterclaim, the Survivorship Rule does not apply. (Razon vs. IAC, 207 SCRA 234)

PRIVILEGED COMMUNICATIONS: 1. Marital Privilege [Rule 130, Sec 24 (a)]; 2. Attorney-Client [Rule 130, Sec 24(b)]; 3. Physician-Patient [Rule 130, Sec 24) (c)]; 4. Priest-Penitent [Rule 130, Sec 24) (d)]; 5. State Secrets [Rule 130, Sec 24(e)]; 6. The guardian ad litem shall not testify in any proceeding concerning any information, statement, of opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child [Sec. 5(e) of the Rule on Examination of a Child Witness]; 7. Editors may not be compelled to disclose the source of published news. (RA 53, as amended by RA 1477, Sec 1);

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8. Voters may not be compelled to disclose for whom they voted; 9. Trade secrets [Cocoland Development v NLRC GRN 98458 July 17, 1996]; 10. Bank Deposits (RA 1405).

DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATION (Sec. 24, Rule 130) Rule: Disqualification by reason of privileged communication applies to both civil and criminal case EXCEPT as to the doctor-patient privilege, which is applicable only in civil cases. 

Unless waived, the disqualification under Section 24 remains even after the various relationships therein have ceased to exist.

A. MARITAL PRIVILEGE: (par. (a), Sec. 24) Requisites: a. The spouses must be legally married; b. The communication must be confidential and made during the marriage; and c. The spouse against whom such evidence is being offered has not given his or her consent to such testimony. 

  

Communications overheard by third persons without knowledge of spouses are still confidential but the third party is not disqualified to testify. Where there is collusion and voluntary disclosure to third party, the latter become an agent and cannot testify. Communication in furtherance of fraud and crime is not privileged. There is a presumption of confidentiality on all communications between husband and wife.

Exceptions: 1. In a civil case by one against the other. 2. In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. 3. When the communication was not intended to be kept in confidence, like the husband’s dying declaration

for instance.

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(U.S. vs. Antipolo, 37 Phil

726)

Rule 130, Sec. 22: Marital Disqualification Rule: The marital disqualification rule refers to all matters, whether or not communicated by one spouse to the other. It applies only during the existence of the marriage. It can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked the moment that one spouse is called to testify. 

Marital Privilege Rule, being a rule of evidence, can be waived for failure of the claimant to object timely to its presentation or by any conduct that may be construed as an implied consent. (Lacurom vs. Jacoba, 484 SCRA 206)



Where the privilege communication from one spouse to the other comes into the hands of a 3 rd party, without collusion or voluntary disclosure on the part of either spouse, it is not privileged; illegality of seizure must be raised by motion before trial for return of letter; unanswered letter is inadmissible (People vs. Carlos, 47 Phil. 626)

B. ATTORNEY-CLIENT PRIVILEGE: (par. (b), Sec. 24, Rule 130) Requisites:

a) There must be a communication made by the client to the attorney or an advice given by the attorney to his client; b) Communication must have been made in confidence; c) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. 

 



The phrase “with a view to” includes those communication made during consultation preparatory to professional employment. Preliminary communication made for the purpose of creating attorney-client relationship is within the privilege. The relationship between the attorney and the client is said to exist where a person employs the professional services of an attorney or seeks professional guidance, even though the attorney declines to handles the case. However, if the communications were not made for the purpose of creating that relationship, they will not be covered by the privilege.

NOT Applicable:

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a. When intended to be made public; b. When intended to be communicated to others; c. When received form third persons not acting in behalf of or as agents of the client; d. When intended for an unlawful purpose; and e. When made in the presence of third parties who are strangers to the attorney-client relationship. Note: The lawyer-client privilege extends to the staff of the lawyer. Hence, in this case, the rule that “if made in the presence of 3rd persons, it is not considered confidential” is NOT APPLICABLE.

General Rule: A lawyer may not invoke the privilege and refuse to divulge the name or identify of his client. Exceptions: 1. Where a strong possibility exists that revealing client’s name would implicate the client in the very activity for which he sought the lawyer’s advice. 2. Where disclosure would open the client to civil liability. 3. Where the prosecutor have no case against the client unless by revealing the client’s name, the said name would form the chain of testimony necessary to convict an individual for a crime. 

The privilege against disclosure of confidential communications or information is limited only to communications which are legitimately and properly within the scope of a lawful employment of a lawyer. It does not extend to those made in contemplation of a crime or perpetration of fraud. If the unlawful purpose is avowed, as in this case, the complainant’s alleged intention to bribe government officials in relation to his case, the communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not within the profession of a lawyer to advise a client as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense (Genato vs. Silapan, Adm. Case. No. 4078, July 14, 2003).

C. PHYSICIAN-PATIENT PRIVILEGE: (par. (c), Sec. 24, Rule 130)

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Requisites:

1. The physician is authorized to practice medicine, surgery or obstetrics; 2. The information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating or curing the patient; 3. The information, advice or treatment, if revealed, would blacken the reputation of the patient; and 4. The privilege is invoked in a civil case, whether the patient is a party thereto or not. NOT Applicable:  When the communication was not given in confidence.  When the communication is irrelevant to the professional employment.  Then the communication was made for an unlawful purpose.  When the information was intended to be made public.  When there was a waiver of the privilege either by provisions of contract or law. E.g. A filed a case against B for Acknowledgment of Paternity. B sought for the medical exam of A. Dr. X examined A. A, later on, asked for a copy of the medical result. In this case, the Doctrine of Privileged Communication will not apply because there is a waiver of the privilege under Rule 27, Sec. 4.

 When the doctor is a medico-legal. The physician may be said to be acting in a professional capacity when he attends to the patient for either curative or preventive treatment. 



The physician-patient privilege is not violated by permitting physician to give expert testimony regarding hypothetical facts. (Lim v. CA, 214 SCRA 273) Non-physician testimony on a medical psychologist’s report is not covered by the physician-patient privilege. (Krohn v. CA, 233 SCRA 146)

D. PRIEST-PENITENT PRIVILEGE: (par. (d), Sec. 24, Rule 130) Requisites: The confession must be

made to the minister or priest in his professional character and in the course

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of discipline enjoined by the rules of practice of the denomination to which the priest of minister belongs; and  “Priest” does not mean that he is an



 Communication made not in the course of religious discipline but in contemplation of a crime is NOT privileged.

E. STATE SECRETS: (par. (e), Sec. 24, Rule 130) Requisites:

1. The communication must have been made to a public officer; 2. The communication was made in official confidence; and 3. Public interest would suffer by the disclosure of the communication. The holder of the privilege is the government which acts through the public officer. Note:

NOT Applicable: a. When the information is useful evidence to vindicate the innocence of an accused person; b. When such information would lessen the risk of a false testimony; c. When it is essential to the proper disposition of the case; and d. When the benefit to be gained is greater than any injury that could inure to the relation by a disclosure of the information, then disclosure will be compelled. 

Special Laws with Regard to State Secrets: 1. RA 7653 (New Central Bank Act), Sec.16 Non-disclosure of any information of a confidential nature or any information on the discussions or resolutions of the Monetary Board.

ordained priest. Mike Velarde and Ely Soriano falls under this category; even the Mormons roaming around. A spiritual adviser does not necessarily mean “Priest” as used here.

1. The confession must be of a penitential character, that is confession of sins with a view to obtaining pardon and spiritual advice or assistance

Absent a claim of need to protect military, diplomatic or sensitive national security secrets, executive privilege can not prevail over due process. (US v. Nixon, 418 U.S. 683)

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Exception: when such data or information is required to be submitted to the President and/or Congress, or required to be published. 2.

RA 6981 (Witness Protection Act), Sec.7 All proceedings involving application for admission into the program and the action taken thereon shall be confidential in nature.

3.

SC Circular (AM No. 01-10-5-SC-PHILJA) The mediation proceedings and all incidents thereto shall be kept strictly confidential, unless otherwise specifically provided by law, and all admissions or statements made therein shall be inadmissible for any purpose in any proceeding.

F. OTHER PRIVILEGED MATTERS: 1) Newsman’s Privilege

[RA 53 as amended

by RA 1477(Sec 1)]

Requisites:

1. Publisher, editor, columnist or duly accredited reporter; 2. Of any newspaper, magazine or periodical of general circulation; 3. Cannot be compelled to reveal; 4. As to the source of any news report or information appearing in said publication; and 5. Related in confidence, Exception: Court, a House or Senate committee of Congress finds that such revelation is demanded by the security of the State. 2) Bank Deposits (RA 1405) Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the

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depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. Note: The privilege applies only to bank

deposits. As to other property being held by a bank, bank personnel may be examined upon order of a court. (Sec. 55.1 [d], RA 8791, General Banking Act of 2000) 

Subject to the provisions of RA 9160 or the Anti-Money Laundering Law

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Hence, a descendant may be compelled to testify in a criminal case where: 1. The descendant-witness himself is the victim; or 2. The descendant-witness’s parent commits a crime against the descendant-witness’s other parent. Note: An ascendant may not be compelled to testify even if it is a crime by the descendant against the ascendant-witness. The ascendant-witness may testify voluntarily though. 

Information given by a child to 3rd person is protected. (People vs. Publico, 7 CAR (2s) 703)

3) Article 223, Labor Code Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Privileged Communications under the Rules on Electronic Evidence The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

2. TESTIMONIAL PRIVILEGE PARENTAL AND FILIAL PRIVILEGE (Sec. 25)  There is no distinction between legitimate or illegitimate relations. Note: This is a testimonial privilege, not a testimonial disqualification, found in Secs.22-24 of Rule 130 [careful not to be confused in the multiple use of the word “privilege”]. Here, the witness is the holder of the privilege and has the power to invoke or waive the privilege. The relative against whom he is testifying cannot invoke nor waive the privilege. However, this must be construed in the light of Art. 215 of the Family Code 

Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other.

3. ADMISSIONS AND CONFESSIONS ADMISSION is an act, declaration or omission of a party as to a relevant fact. CONFESSION is a categorical acknowledgement of guilt made by an accused of the offense charged or any offense necessarily included therein. Classifications of Admissions: 1. Judicial Admissions: a) Formal judicial admissions b) Informal judicial admissions 2. Extrajudicial Admissions: a) Express extrajudicial admissions b) Implied extrajudicial admissions Admissions that are Admissible Against a Party: 1. Admissions against interest 2. Compromises 3. EXCEPTIONS to Res Inter Alios Acta: a. Co-partner’s admissions (Sec 29); b. Agent’s admissions; c. Admissions by a joint owner, joint debtor, or other person jointly interested with the party; d. Co-conspirator’s statements; e. Admission by Privies. 4. Admission by silence Rule on Admissions of a Party: 1. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. 2. An act, declaration or omission in his favor is NOT an admission.

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

Elements for an Admission to be Admissible: 1. Must involve matters of fact, not of law; 2. Must be categorical and definite; 3. Must be knowingly and voluntarily made; and 4. Must be adverse to the admitter’s interest. Otherwise it would be selfserving and generally inadmissible. Distinctions ADMISSION

CONFESSION

Statement of fact which does not involve an acknowledgment of guilt or liability

Statement of fact which involves an acknowledgment of guilt or liability without any exculpatory statement

Express or tacit

Always express

May be made by third persons and, in certain cases, are admissible against a party

Made only by the party himself, and, in some instances, are admissible against his co-accused

NOTE: Every confession is an admission, but not all admissions are confessions.



In an administrative complaint against a lawyer for his negligence in the performance of his duties as counsel, “Respondent’s failure to file an answer to the complaint despite notice from the IBP amounts to an admission of the allegations therein…” (Pilapil vs. Carillo, AC No. 5843, Jan. 14, 2003) President’s admission binds the corporation. (Keller & Co. vs. COB, January 16, 1986)

COMPROMISES Offer of Compromise Civil Cases An offer of compromise is not an admission of any liability and is not admissible in evidence against the offeror. Exception: When such offer is clearly not only to buy peace but amounts to an admission of liability the offered compromise being directed only to the amount paid.

SELF–SERVING DECLARATIONS are unsworn statements made by the declarant out of court and which are favorable to his interest. It is not admissible in evidence because of the lack of opportunity to crossexamine. Distinctions DECLARATIONS AGAINST INTEREST

ADMISSIONS

Made against the proprietary or pecuniary interest of the parties.

Need not be made against pecuniary or proprietary interest.

Made by a person who is either deceased or unable to testify.

Made by a party himself, and is primary evidence and competent though he be present in court and ready to testify.

Must be made ante litem motam.

May be made any time.



The unexplained flight of an accused may be taken as evidence having tendency to establish his guilt. (Adame vs. CA, GR No. 139830, Nov. 21, 2002)

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Criminal Cases An offer of compromise by the accused may be received in evidence as an implied admission of guilt. Exception: 1. Those involving quasi-offenses; 2. Those allowed by law to be compromised (i.e. Tax Cases); 3. Plea of guilty later withdrawn; 4. As unaccepted offer of a plea of guilty to a lesser offense; 5. An offer or payment of medical, hospital or other expenses occasioned by an injury; and 6. Under the Katarungang Pambarangay Law.

Reason Compromise Is Allowed In Civil Cases: It is the policy of the law to favor the settlement of disputes, to foster compromises and to promote peace. (Genato vs. Silapan, Adm. Case. No. 4078, July 14, 2003)

Note: An offer of compromise that may be considered an implied admission need NOT be made by the accused himself, it may be made by his lawyer or relatives, provided it is made with the consent of the accused or with his knowledge and he does not stop it.

Distinctions Offer of Compromise The proposal is

Ordinary Admission The intention is

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tentative and any statement made in connection with it is hypothetical to buy peace and in contemplation of mutual concessions.

apparently to admit liability and to seek to buy or secure relief against a liability recognized as such.

DOCTRINE OF RES INTER ALIOS ACTA “Res inter alios acta altere nocere non debet” Things done between two persons ought not to injure or prejudice those who are not parties to it. 

The rights of a party cannot be prejudiced by the act, declaration or omission of another.

A. First Branch  Admission by third party.

(Rule 130,

Sec. 28)

Exceptions to First Branch of Res Inter Alios Acta Rule: 1. Admission by a co-partner or agent (Rule 130, sec.29) 2.

Admission by a co-conspirator

(Rule

130, Sec. 30) 3.

Admission by privies

(Rule 130, Sec.

31)

B. Second Branch  Similar acts as evidence

(Rule 130, Sec.

34) 

The res inter alios acta rule refers only to the extrajudicial declarations or admissions and not to testimony given on the witness stand where the party adversely affected has the opportunity to cross-examine the declarant. (People vs. Camiling, 424 SCRA 698)

ADMISSION BY THIRD PARTY (Sec. 28) General Rule: extrajudicial acts of a person other than a party are inadmissible against such party. Exceptions: 1. Partner’s/Agent’s Admissions 2. Co-Conspirator’s Statements 3. Admission by Privies 4. Admission by Silence A. Partner’s/Agent’s Admissions Requisites: 1. The acts or declaration were made during the existence of partnership. 2. That the partnership be previously proven by evidence other than the admission itself;

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3. The acts or declaration refers to matters within the scope of his authority B. Co-Conspirator’s Statements Requisites: 1. Act or declaration of a conspirator; 2. Relating to the conspiracy; 3. Made during its existence; and 4. The conspiracy is shown by evidence other than such act of declaration; C. Admission By Privies PRIVIES are those who have mutual or successive relationship to the same right of property or subject matter. Kinds of Privies: Those arising from: 1. Contract 2. Law – e.g. Succession 3. Blood – e.g. father and son Requisites: 1. Act, declaration, or omission (ADO) is made by a predecessor-ininterest; 2. ADO is made while holding the title in relation to the property. 3. ADO must be in relation to the property. Exceptions: a. Where the declarations are made in the presence of the transferee and he acquiesce in the statement or asserts no right where he ought to speak; b. Where there has been prima facie case of fraud established, as where the possession of the thing after the transfer remains with the seller or transferor; or c. Where the evidence establishes a continuing conspiracy to defraud. D. Admission by Silence Requisites: 1. The act or declaration is made in the presence and within the hearing or observation of party; 2. The party does or says nothing; 3. The act or declaration naturally calls for action of comment if not true; and

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4. Such action or comment is proper and possible on the part of the party. When Silence NOT Considered an Admission (exception to the exception): 1. If made on the advise of the counsel; and 2. If done due to lack of full appreciation or understanding. Note:

Doctrine of Adoptive Admission: An adoptive admission is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person.

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cannot sustain a conviction UNLESS its voluntariness is proven and corroborated by evidence of the corpus delicti. Requisites for Admissibility of Extrajudicial Confessions: 1. Express; 2. Voluntary; 3. With the assistance of a competent and independent counsel; and 4. In writing Corpus delicti – refers to a particular crime and signifies that the specific offense had been actually committed by someone. General Rule: An extrajudicial confession is

CONFESSION A categorical acknowledgment of guilt made by an accused in a criminal case without any exculpatory statement or explanation.

admissible against the confessor only. It is incompetent evidence against his coaccused for being hearsay and because of the res inter alios acta rule.

This rule is generally applicable in criminal cases. There can also be a confession of judgement in a civil case where the party expressly admits his liability. A confession need not be in writing in order to be admissible in evidence.

1. If the co-defendants impliedly acquiesced in or adopted said confession; 2. Interlocking confessions – if the accused persons voluntarily and independently executed identical confession without collusion and corroborated by other evidence; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as corroborating evidence; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the conspirator; 6. When the confessant testified for his codefendant; and 7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence of record.

  

Note: If it is in writing, it is NOT required

to be under oath. Requisites for Admissibility of Confessions: 1. Express and categorical acknowledgment of guilt; 2. Facts admitted are constitutive of the criminal offense; 3. Voluntarily given; 4. Intelligently made; and 5. There is no violation of Art. III, Sec. 3 of the Constitution (Rights of the Accused). (People vs. Racquel, 256 SCRA 248)

Classification of Confessions: 1. Judicial Confession is one made before a court in which the case is pending and in the course of legal proceedings therein, and by itself, can sustain a conviction even in capital offenses. 2. Extrajudicial Confession is one made in any other place or occasion and

Exceptions: (When admissible against the codefendants)

Article III, Sec 12 and Sec 17 Illegal confessions and admissions are inadmissible against the confessant or the admitter but are admissible against the persons who violated the

Note:

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constitutional prohibition in obtaining such illegal confessions on admissions. Rule 115, Sec 1 (e) Sec. 1. Rights of accused at trial. – xxx (e) To be exempt from being compelled to be a witness against himself.

Note:

4. PREVIOUS EVIDENCE

CONDUCT

AS

General Rule: Evidence that one did or did

not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. Exceptions: It may be received to prove a specific. 1. Intent; 2. Knowledge; 3. Identity; 4. Plan; 5. System; 6. Scheme; 7. Habit; 8. Custom; or 9. Usage, and the like.

Hearsay Twice Removed:  Also called “doubled hearsay”.  Even the source of the hearsay introduced is itself hearsay. Classification of Out-of-Court Statements: 1. Hearsay – those which are considered as hearsay and therefore inadmissible; this occurs when the purpose for introducing the out-of-court statement is to prove the truth of the facts asserted therein. 2. Non-Hearsay – independently relevant statements when the purpose for introducing the statements are not to prove the truth of the facts asserted and are admissible in evidence when the making of the statements are relevant.

6. EXCEPTIONS TO HEARSAY RULE 1. Dying declaration (Rule 130, Sec. 37); 2. Declaration against interest (Rule 130, Sec. 38); 3. Act or declaration about pedigree (Rule 130, Sec. 39); 4. Family reputation or tradition regarding pedigree (Rule 130, Sec. 40); 5. Common reputation (Rule 130, Sec. 41); 6. Res gestae (Rule 130, Sec. 42); 7. Entries in the course of business (Rule 130, Sec. 43); 8. Entries in official records (Rule 130, Sec. 44); 9. Commercial lists (Rule 130, Sec. 45); 10. Learned treatises (Rule 130, Sec. 46); and 11. Testimony or deposition at a former proceeding (Rule 130, Sec. 47).

Unaccepted Offer - An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property, if rejected without valid cause is equivalent to the actual production and tender of the money, instrument, or property.

5. TESTIMONIAL KNOWLEDGE Rule: A witness can testify only to those

facts which he knows of his personal knowledge, that is which are derived from his own perception, except as otherwise provided in the rules. (Sec. 36, Rule 130) HEARSAY EVIDENCE – means that kind of evidence which derives its value not solely from the witness himself, but also in part because of the veracity and competency of some other person from whom the witness may have received his information. Reasons for Excluding Hearsay Evidence: 1. No opportunity to cross-examine the purported source of such evidence and therefore not subject to text of truth; 2. Violative of the Constitutional right to confrontation; and 3. Absence of oath.

REMEDIAL LAW

 

They are hearsay per se, but are admissible by reason of NECESSITY and TRUSTWORTHINESS. Hearsay evidence not objected to may be admissible, but whether objected to or not has no probative value (except the exceptions) and as opposed to direct and primary evidence, the latter always prevails.

EXCEPTIONS TO THE HEARSAY RULE A. DYING DECLARATION (Sec. 37): Requisites:

1. Declaration of a dying person;

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REMEDIAL LAW

2. Made under the consciousness of an impending death; 3. His death is the subject of inquiry; 4. As evidence of the cause and surrounding circumstances of such death; and 5. That the statement is complete in itself (People vs. De Joya, 203 SCRA 343). 6. Declaration relates to facts which the victim is competent to testify.

exceptions to res inter alios acta

hearsay

Evidence against the successor in interest of the admitter

Evidence against even the declarant, his successor in interest, or 3rd persons

Admitter need not be dead or unable to testify

Declarant is dead or unable to testify

To be complete in itself does not mean that the declaration must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. A dying declaration may be oral or written or made by signs which could be interpreted and testified to by a witness thereto. A dying declaration may be attacked on the ground that any of the requisites for its admissibility are not present and the same may be impeached in the same manner as the testimony of any other witness on the stand. If the declarant does not die, the declaration would not be admissible under this rule but considered as part of the res gestae. Best evidence rule not applicable to dying declaration. Dying declaration favorable to the accused is admissible. Dying declaration is not considered a confidential communication between spouses.

Relates to title to property

Relates to any interest

Admission need not be against the admitter’s interest

Declaration must be against the interest of the declarant









  

B. DECLARATION AGAINST INTEREST (Sec. 38)



“Declaration against interest” has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. The confession of a person who made a declaration against his own interest (having been missing since his abduction, cannot be called upon to testify definitely), is admissible in evidence because no sane person will be presumed to tell a falsehood to his own detriment. (People vs. Bermal, June 19, 1997)

C. ACT OR DECLARATION ABOUT PEDIGREE (Sec. 39): Requisites:

1. The actor or declarant is dead or unable to testify; 2. The act or declaration is made by a person related to the subject by birth or marriage; 3. The relationship between the declarant/actor and the subject is shown by evidence other than such act/declaration; and 4. The act/declaration was made ante litem motam or prior to the controversy.

Requisites:

1. Declarant is dead or unable to testify; 2. Against the interest of the declarant; 3. That at the time he made said declaration, the declarant was aware that the same was contrary to his interest.

General Rule: Where the party claiming

Distinctions: Admission By Privies

One of three

Pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, the names of the relatives, and facts of family history intimately connected with pedigree.

Declaration Against Interest

Exception to

seeks recovery against a relative common to both claimant and declarant, but not from the declarant himself or the declarant’s estate, the relationship of the

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declarant to the common relative may not be proved by the declaration itself.



Exception: Where it is sought to reach



the estate of the declarant himself and not merely to establish a right through his declaration to the property of some other members of the family. (Tison vs. CA,



D. FAMILY TRADITIONS (Sec. 40) Requisites for Admissibility of Hearsay Evidence as to Family Reputation or Tradition Regarding Pedigree: It is necessary that: 1. The witness testifying thereto must be a member, by consanguinity or affinity, of the same family as the subject; and 2. Such reputation or tradition must have existed in that family ante litem motam.



Witness need not be a member of the family

Witness is a member of the family

Testimony is about what declarant, dead or unable to testify, has said concerning the pedigree of the declarant’s family

Testimony is about family reputation or tradition covering matters of pedigree

E. COMMON REPUTATION (Sec. 41) Requisites:

1. The facts must be of public or general interest; 2. That the common reputation must have been ancient or for more than 30 years (no such requirement in cases of proving marriages and moral character); 3. That the reputation must have been existing previous to the controversy; and 4. The common reputation must be among people who had an adequate opportunity of observing the person’s conduct.

The 30-year period does not apply to matters respecting marriage and moral character.

Evidence of Negative Good Repute Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one’s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness had heard nothing against the person.

Distinctions: Family Reputation or Tradition Regarding Pedigree

The definite opinion held about a person in the community in which he lives. The general or substantially undivided reputation. Need not be unanimous. arellano law

What Common Reputation May Be Admitted To Prove: 1. Matters of public interest more than 30 years old (considered ancient); 2. Matters of general interest more than 30 years old; 3. Matters respecting marriage or moral character and related facts; and 4. Individual moral character.

276 SCRA 582)

Act Or Declaration About Pedigree

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F.

RES GESTAE (Sec. 42)  

Literally means “Things Done” Includes the circumstances, facts and declarations incidental to the main fact or transaction necessary to illustrate its character and also includes acts, words or declarations which are closely connected therewith as to constitute part of the transaction.

Types of Res Gestae: 1. Spontaneous Statements (First Sentence, Sec. 42) – statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof. Requisites:

a. There must be occurrence; and

a

startling

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b. While a startling occurrence is taking place or immediately prior or subsequent thereto, a statement has been made; c. Statement must relate to the circumstances of the startling occurrence. Statement must be spontaneous. 2. Verbal Acts (Second Sentence, Rule 42) – statements accompanying an equivocal act material to the issue and giving it a legal significance. Requisites:

1.

Act or occurrence characterized must be equivocal; 2. Such act must be material to the issue; 3. Statements must accompany the equivocal act; and 4. Statements give legal significance to the equivocal act.

Distinctions Verbal Acts

Spontaneous Statement

The res gestae is the equivocal act

The res gestae is the startling occurrence

Verbal act must be contemporaneous with or must accompany the equivocal act

Statements may be made prior, while or immediately after the startling occurrence

Statements must explain the equivocal act and give it a legal significance

Statements need not explain the principal fact

Distinctions Res Gestae In Connection With A Homicidal Act May be made by the accused himself after or during the killing or that of a 3rd person

Res Gestae In Connection With A Homicidal Act May precede ,accompany or be made after the homicidal

Dying Declarations

Can be made only by the victim

Dying Declarations

Made only after the homicidal attacks has been committed

REMEDIAL LAW

attacks was committed Justification in the spontaneity of the statement

Trustworthiness based upon its being given an awareness of impending death

G. ENTRIES IN THE BUSINESS (Sec. 43)

COURSE

OF

Requisites:

1. Entrant must be deceased or unable to testify; 2. Entries were made at or near the time of the transaction to which they refer; 3. Entrant was in a position to know the facts stated in the entries; 4. Entries were made by entrant in his professional capacity of his duty; and 5. Entries were made in the ordinary or regular course of business or duties. Both official and business records are only prima facie evidence.  If the person making the entry is still alive, use the record to refresh his memory. (Rule 132, Sec. 16)  A writing or document made contemporaneously with a transaction in which are evidenced facts pertinent to an issue, when admitted as proof of those facts, is ordinarily regarded as more reliable proof and of greater probative force than the oral testimony of a witness as to such facts based upon memory and recollection. (PAL vs. 

Ramos, March 23, 1992)

H. ENTRIES (Sec. 44)

IN

OFFICIAL

RECORDS

Requisites: 1. The entries were made by: a. A public officer in the performance of his duties; or b. A person in the performance of a duty specially enjoined by law; 2. Entrant has personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same; and 3. Such entries were duly entered in a regular manner in the official records.

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Entries in police records made by a police officer in the performance of the duty especially enjoined by law are prima facie evidence of the fact therein stated, and their probative value may be either substantiated or nullified by other competent evidence. Although police blotters are of little probative value, they are nevertheless admitted and considered in the absence of competent evidence to refute the facts stated therein. (Lao vs. Standard Insurance Co., Inc., 409 SCRA 43) Note: In official records, the person making the entry need not be deceased or unable to testify, but he must be a public officer or a person in the performance of a duty specially enjoined by law. In business records, the person making the entry must be deceased or unable to testify. Both official and business records are only prima facie evidence. 

I.

COMMERCIAL LISTS AND THE LIKE (Sec. 45) Requisites:

1. Statements of matters of interest; 2. To persons engaged in an occupation; 3. Contained in a list, register, periodical, or other published compilation; 4. As tending to prove the truth of any relevant matter so stated; 5. The compilation is published for use by persons engaged in that occupation; and 6. Generally used and relied upon by them therein. e.g., NEDA reports, part of the newspaper which reports the prices of shares 

Newspapers containing stock quotations are not admissible in evidence when the source of the reports is available. With more reason, mere analyses or projections of such reports cannot be admitted. (Meralco vs. Quisumbing, 336 SCRA 172)

J. LEARNED TREATISES (Sec. 46) Requisites for Admissibility of Hearsay Evidence as to Learned Treatises (used to prove unwritten foreign law):

REMEDIAL LAW

1. If the court takes judicial notice that the writer of the statement in the treatises, periodical or pamphlet is recognized in his profession of calling as expert in the subject; or 2. A witness, expert in the subject, testifies that the writer of the statement in the treaties, periodical or pamphlet is recognized in his profession or calling as expert in the subject. K. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING (Sec. 47) Requisites for Admissibility of Hearsay Evidence as to Prior Testimony: 1. That the witness whose testimony is offered in evidence is deceased or unable to testify; 2. That it involves the same parties and subject matter; and 3. That adverse party had an opportunity of cross-examining the witness. 

The adoption by the Makati trial court of the facts stated in the decision of the Parañaque trial court does not fall under the exception to the right of confrontation as the exception contemplated by law covers only the utilization of testimonies of absent witnesses made in previous proceedings, and does not include utilization of previous decisions or judgments. (People vs. OrtizMiyake, 279 SCRA 145)



A conviction may not be based merely on the findings of fact of another court, especially where what is presented is only its decision sans the transcript of the testimony of the witnesses who testified therein and upon which the decision is based. (People vs. Ortiz-Miyake, 279 SCRA 145)

 The hearsay rule does not apply to independently relevant statements

Independently Relevant Statements  are non-hearsay, out of court statements;  operative acts which give rise to legal consequences.

7. OPINION RULE The opinion of a witness is not admissible. Exceptions: Admissible opinion evidence General Rule:

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1.

2.

3. 4.

5.

On a matter requiring special knowledge, skill, experience or training, which he is shown to possess (Rule 130, Sec. 49); The identity of a person about whom he has adequate knowledge (Rule 130, Sec. 50[a]); A handwriting with which he has sufficient familiarity (Rule 130, Sec. 50[b]); The mental sanity of a person with whom he is sufficient acquainted (Rule 130, Sec. 50[c]); or The witness’ impression of the emotion, behavior, condition or appearance of a person. (Rule 130, Sec.

establish in any reasonable degree the probability or improbability of the offense charged. Note, However: exception) 1.

An EXPERT WITNESS is one who belongs to the profession/calling to which the subject matter of the inquiry relates and who possess special knowledge on questions on which he proposes to express an opinion. There is no definite standard of determining the degree of skill/knowledge that a witness must possess in order to testify as an expert. It is sufficient that the following factors are present: 1. Training and education; 2. Particular, first-hand familiarity with the facts of the case; or 3. Presentation of authorities or standards upon which his opinion is based. The question whether a witness is properly qualified to give an expert opinion on ballistics rests with the discretion of the court. (People vs. Abriol, 267 SCRA 327)

8. CHARACTER EVIDENCE (Sec. 51) General Rule: Character evidence is NOT

admissible. Exceptions:

A. In Criminal Cases: 1. Accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. 2. In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent if moral trait is involved in the offense charged. 

Hence, prosecution may not initially attack the character of the accused.

3. Moral character of the offended party may be proved if it tends to

(exception

to

the

Proof of the bad character of the victim in a murder case is not admissible if the crime was committed through treachery and premeditation (People vs. Soliman, 101 Phil. 767)

2.

50[d]) 

REMEDIAL LAW

In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds that such evidence is material and relevant to the case (Rape Shield, RA 8505 Sec. 6)

B. In Civil Cases ((b), Sec. 51)  Only when pertinent to the issue of character involved in the case. C. Rule 132, Sec. 14. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. 

In both civil and criminal cases, the bad moral character of a witness may always be proved by either party (Rule 132, Sec. 11)

Good Moral Character - a character that measures up as good among the people in the community in which the person lives, or one that is up to the standard of the average citizen. Distinction between the Rule on Character in Criminal and Civil Cases Criminal Cases

Civil Cases

It is evidence of the good character of the accused is most properly and with good reason admissible in evidence because there is a fair and just presumption that a person of good character would not commit a crime.

Such evidence is with equal good reason not admitted, because no presumption would fairly arise, in the very great proportion of such cases, from the good character of the defendant, that he did not commit the breach of contract or civil duty alleged against him.

Character

Reputation

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That which a person or thing really is

It is what a person is estimated, said, supposed, or thought to be by others

Internal

External

Substance

Shadow

Signifies the reality

Signifies what is reputed or understood from, or reported to be the reality about a person or thing

It is what a man is morally, and consists of the qualities which constitute the individual

Refers to the qualities one is supposed to possess; may be one’s estimated or reputed character, in contradistinction to his real character

RULE 131

BURDEN OF PROOF AND PRESUMPTIONS BURDEN OF PROOF is the duty of a party to present evidence of the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Sec. 1, Rule 131) Upon Whom Burden of Proof Rests: A. Civil Cases: 1. PLAINTIFF has the burden of proof to show the truth of his allegations if the defendant raises a negative defense. 2. DEFENDANT has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff. B. Criminal Cases:  PROSECUTION has the burden of proving guilt of the accused because of the presumption of innocence. Degree of Proof Necessary to Meet Burden Of Proof: A. Civil Cases:  Preponderance of evidence B. Criminal Cases:

REMEDIAL LAW

1. To sustain CONVICTION: Evidence of guilt reasonable doubt.



beyond

2. Preliminary Investigation: Prima Facie Case – engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof



3. For Issuance of warrant of arrest: Probable Cause – that there is reasonable ground to believe that the accused has committed an offense



HIERARCHY OF EVIDENCE From most burdensome to least: 1. Overwhelming evidence 2. Proof beyond reasonable doubt 3. Clear and convincing evidence 4. Preponderance of evidence 5. Substantial evidence 6. Prima facie evidence 7. Probable cause 8. Iota of evidence Overwhelming Evidence is that which can never be controverted or overturned by any other evidence. Proof Beyond Reasonable Doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty is only required, or that degree of proof which produces conviction in an unprejudiced mind. (Rule 134, Sec. 2)

Clear and Convincing Evidence is the quantum of proof required according to law. 

In Extradition cases, the extradite may be allowed to post bail only upon clear and convincing evidence showing that: 1. Once allowed to post bail, the applicant will not be a flight risk or a danger to the community; and 2. There exist special humanitarian and compelling circumstances to justify the grant of bail. (Government of Hong Kong vs. Olalia, Jr., April 19, 2007)

Preponderance of Evidence is that which is more convincing and more credible than the one offered by the adverse party. Substantial Evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (Rule 133, Sec. 5)

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Burden Of Proof

Prima Facie Evidence is that which, standing alone, is sufficient to maintain proof of a matter unless controverted by a superior evidence.

Generally determined by the pleadings filed by the parties.

Note: In Extradition proceedings, the quantum of evidence required is only prima facie evidence; but in order that a petition for bail therein be granted, clear and convincing evidence is necessary.

Iota Of Evidence (Scintilla of Evidence) – e.g., Circumstantial evidence (Rule 134, Sec. 4) BURDEN OF EVIDENCE  The logical necessity of a party, during a particular time of the trial, to create a prima facie case in his favor or to destroy that created against him by presenting evidence. 

In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation.

REMEDIAL LAW

Burden Of Evidence Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

SWEETHEART DEFENSE An admission of carnal knowledge of the victim and consequently places on the accused the burden of proving the supposed relationship by substantial evidence. (People vs. Antonio, 430 SCRA 619) 

As an affirmative defense, sweetheart defense must be established with convincing evidence – by some documentary and/or other evidence of relationship. (People v. Bautista, 430 SCRA 469)

Upon Whom Burden of Evidence Rests: A. Civil Cases: 1. PLAINTIFF has to prove his affirmative allegations in the complaint. 2. DEFENDANT has to prove the affirmative allegations in his counterclaim and his affirmative defenses. B. Criminal Cases: 1. PROSECUTION has to prove its affirmative allegations in the information regarding the elements of the crime as well as the attendant circumstances. 2. DEFENSE has to prove its affirmative allegations regarding the existence of justifying or exempting circumstances, absolutory causes or mitigating circumstances. Distinctions: Burden of Proof Lies on the same party all throughout the proceeding and does not shift.

Burden of Evidence Shifts from party to party, depending upon the exigencies of the case, in the course of the trial.

PRINCIPLE OF NEGATIVING AVERMENTS General Rule: Negative allegations need not be proved, whether in a civil or criminal action. Exception: Where such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or defenses thereto. 



HOWEVER, in civil cases, even if the negative allegation is an essential part of the cause of action or defense, such negative allegation does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party. In criminal cases, it is not incumbent upon the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved within the defendant’s possession or control.

PRESUMPTION is an inference of the existence or non-existence of a fact which is permitted to be drawn from the proof of other facts. Classification of Presumptions:

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1.

Presumption of Law (Presumption in Juris) is a deduction which the law expressly directs to be made from particular facts. 2. Presumption of Fact (Presumption in Hominis) is a deduction which reason draws from facts proved without an express direction from the law to that effect.  Presumptions of facts are borne by reason through human experience

Distinctions: Presumption of Law

Presumption of Fact

Certain inference must be made whenever the facts appear which furnish the basis of the inference

A discretion is vested in the tribunal as to drawing the inference

Reduced to the fixed rules and form part of the system of jurisprudence

Derived wholly and directly from the circumstances of the particular case by means of the common experience of man

Kinds of Presumptions of Law: 1. Conclusive Presumption (juris et de jure) which is not permitted to be overcome by any proof to the contrary. 2. Rebuttable Presumption (juris tantum) is that which the law permits to be overcome or contradicted by proofs to the contrary, otherwise, the same remains satisfactory and is considered sufficient evidence of the fact in dispute. Classes of CONCLUSIVE PRESUMPTIONS: 1. Estoppel In Pais (Rule 131, Sec. 2[a]) – Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. 2. Estoppel by Deed (Rule 131, Sec. 2[b]) – The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

REMEDIAL LAW

Non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434, NCC); b. Agent who alienates can not claim title against the transferee (Art. 1435, NCC); c. A lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436, NCC); d. In a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present: 1. Fraudulent representation or wrongful concealment of facts is known to the party estopped; 2. Party precluded must intend that the other should act upon the facts as misrepresented; 3. Party misled must have been unaware of the true facts; and 4. Party defrauded must have acted in accordance with the misrepresentation. (Art. 1437, NCC) e. One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC) a.

DISPUTABLE PRESUMPTIONS (See Rule 131 , Sec. 3)

NO PRESUMPTION OF LEGITIMACY OR ILLEGITIMACY (Rule 131, Sec. 4) There is no presumption of legitimacy or illegitimacy of a child born three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.

Statutory Instances of Estoppel:

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RULE 132

PRESENTATION OF EVIDENCE A. EXAMINATION OF WITNESS EXAMINATION OF WITNESS PRESENTED IN A TRIAL OR HEARING: 1. Done in open court; 2. Under oath or affirmation; 3. Answers of the witness shall be given orally, unless: a) the witness is incapacitated to speak; or b) the question calls for a different mode of answer. Purpose: To enable the court to judge the credibility of the witness by the witness’ manner of testifying, their intelligence and their demeanor. General Rule: Testimonies of witnesses must

be given orally in open court and cannot be presented in affidavits. Exception: Cases covered by the Rule on Summary Procedure where affidavits are given in lieu of oral testimony. Requisites for Transcript to be Deemed Prima Facie a Correct Statement of the Proceedings: 1. Made by the official stenographer, stenotypist or recorder; and 2. Certified as correct by him. 

The rules now require even the statements of the judge be recorded.

4. Not to give an answer which will tend to subject him to a penalty for an offense, unless otherwise provided by law; or 5. Not to give an answer which will tend to degrade his reputation, unless it be to the fact at issue or from which the fact in issue would be presumed of his previous final conviction for an offense. Note: The exception in number (4) above

refers to IMMUNITY STATUTES wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony. Kinds of Immunity Statutes:  Republic Act 1379, Section 8 – the law providing for the forfeiture of unlawfully acquired property.  Presidential Decree 749 – in prosecutions for bribery and graft. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS a. Direct examination by the proponent; b. Cross-examination by the opponent; c. Re-direct examination by the proponent; d. Re-cross-examination by the opponent. DIRECT EXAMINATION is the examinationin-chief of a witness by the party presenting him on the facts relevant to the issue. (Rule 132, Sec. 5)

CROSS-EXAMINATION Purpose: 1. To discredit the witness; 2. To discredit the testimony of the witness; 3. To elicit admissions from a witness; and 4. To clarify certain matters. 

Obligation of a Witness:  To answer questions, although his answer may tend to establish a claim against him. (Sec. 3, Rule 132) Rights of a Witness: (Sec. 3, Rule 132) 1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; 2. Not to be detained longer than the interests of justice require; 3. Not to be examined except only as to matters pertinent to the issue;

REMEDIAL LAW



The cross-examination of a witness is a prerogative of the party against whom the witness is called. (People vs. Fabre, 385 SCRA 185) The trial court is not bound to give full weight to the testimony of a witness on direct examination merely because he is not crossexamined by the other party. (People vs. Fabre, 385 SCRA 185)

Scope or Limits of Cross-Examination: Under the English Rule where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the

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matters inquired examination.

about

in

the

direct

Witness may be cross-examined by the adverse party— a. As to any matters stated in the direct examination, or connected therewith; and b. With sufficient fullness and freedom, to test his accuracy and truthfulness and freedom from interest or bias, or the reverse; and c. To elicit all important facts bearing upon the issue. RE-DIRECT EXAMINATION (Rule 132, Sec. 7)  To explain or supplement his answers given during the crossexamination.  Court may allow questions on matters not dealt with during the crossexamination. RE-CROSS-EXAMINATION (Rule 132, Sec. 8)  On matters stated in his re-direct examination. Court may allow questions on other matters. RECALLING WITNESS (Rule 132, Sec. 9)  After the examination of a witness by both sides has been concluded  The witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. Note: A witness can be recalled only with leave of the court. LEADING AND MISLEADING QUESTIONS (Rule 132, Sec. 10)

Leading questions – a question which suggests to the witness the answer which the examining party desires. General Rule: Leading questions are NOT

allowed. Exceptions:

a)Cross examination; b)Preliminary matters; c)Difficulty in getting direct and intelligible answers from a witness who is: i. Ignorant, or ii. A child of tender years, or iii. Feeble mind, or iv. A deaf-mute;

REMEDIAL LAW

d)Unwilling or hostile witness e)Witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. Misleading questions – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. 

Misleading questions are NOT allowed; NO EXCEPTIONS.

IMPEACHMENT OF ADVERSE PARTY'S WITNESS (Rule 132, Sec. 11) A witness may be impeached by the party against whom he was called, by: a. Contradictory evidence; b. By evidence that his general reputation for truth, honesty, or integrity is bad; or c. By evidence that he has made at other times statements inconsistent with his present testimony 

But not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.

IMPEACHMENT OF OWN WITNESS

(Rule

132, Sec. 11)

General Rule: The party producing a witness

is not allowed to impeach his credibility. Exceptions: When party may impeach his own witness (except evidence of bad character) a. An unwilling; or b. hostile witness; or c. A witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. Grounds for Declaring a Witness Unwilling or Hostile: a. Adverse interest; b. Unjustified reluctance to testify; or c. Misled the party into calling him to the witness stand. Consequences of being an unwilling, hostile, or adverse witness: 1. May be impeached by the proponent, except by evidence of bad character;

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2. May also be impeached by the opponent; 3. May be cross-examined by the opponent, only on the subject matter of his direct examination; and 4. Proponent may ask leading questions. HOW WITNESS MAY BE IMPEACHED BY EVIDENCE OF PRIOR INCONSISTENT STATEMENTS (Rule 132, Sec. 13) Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: 1. The statements must be related to him, with the circumstances of the times and places and the persons present, and 2. He must be asked whether he made such statements, and if so, allowed to explain them. 3. If the statements be in writing they must be shown to the witness before any question is put to him concerning them. WHEN WITNESS MAY REFER TO MEMORANDUM (Rule 132, Sec. 16) Requisites: 1. The memorandum must have been written or recorded by himself or under his direction; 2. Either at the time when the fact occurred immediately thereafter; or 3. At any other time when the fact was fresh in his memory; 4. He knew that the same was correctly written or recorded; 5. The memorandum must be produced and may be inspected by the adverse party, who may, if he chooses, crossexamine the witness upon it, and may read it in evidence; and 6. If the witness retains no recollection of the particular facts, he must swear that the writing or record correctly stated the transaction when made.

recall the acts involved and is entitled to lesser weight. 

Allowing a witness to refer to her notes rests on the sound discretion of the trial court. (People vs. Plasencia, November 7, 1995)

WHEN PART OF TRANSACTION, WRITING OR RECORD GIVEN IN EVIDENCE, THE REMAINDER ADMISSIBLE (Rule 132, Sec. 17) 1. That part of an act, declaration, conversation, writing or record is given in evidence by one party; 2. That the whole of the same subject may be inquired into by the other; and 3. That when a detached act, declaration, conversation, writing or record is given in evidence any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. 

Whenever a writing is shown to a witness, it may be inspected by the adverse party. (Rule 132, Sec. 18)

B. AUTHENTICATION AND PROOF OF DOCUMENTS CLASSES OF DOCUMENTS

(Rule 132, Sec.

19)

For the purpose of their presentation in evidence, documents are either: 1. Public documents are: a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; b) Documents acknowledged before a notary public except last wills and testaments; and 



2 Parts of Rule 132, Sec. 16 1. Rule on “revival of present memory” – applies if the witness remembers the acts regarding his entries and entitled to greater weight. 2. Rule on “revival of past recollection” – applies where the witness does not

REMEDIAL LAW

Last will and testaments are excluded as public documents because they have their own requirements over and above acknowledgment. Affidavits are not public documents because they only require a jurat.

c) Public records, kept in the Philippines, of private documents required by law to be entered therein. 2. All other writings are private. 

If a document is intended by law to be a part of public or official record, then such private document becomes a public document. E.g.

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filing of document with BIR turns it into a public document. (Monteverde vs. People, 387 SCRA 196)

Distinctions: Public Documents

Private Documents

Genuineness and authenticity presumed.

Must prove genuineness and due execution.

Binding against the parties and 3rd persons.

Binds only parties to the document.

Certain transactions are required to be in a public document (e.g. donation of real property).

PROOF OF PRIVATE DOCUMENT Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: 1. By anyone who saw the document executed or written; or 2. By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. (Rule 132, Sec. 20)

WHEN AUTHENTICATION OF DOCUMENT NOT REQUIRED 1. When writing is an ancient document (Rule 132, Sec. 21)

Requisites to be considered an Ancient Document: i. More than 30 years old; ii. Found where it should be; and iii. Unblemished by alteration or circumstances of suspicion.

2. When writing is a public document or public record (Rule 132, Sec. 30) 3. Notarial document acknowledged, proved or certified (Rule 132, Sec. 30) 4. Express or implied admission of authenticity and due execution of an actionable document (Rule 8, Sec. 8) HOW GENUINENESS OF HANDWRITING BE PROVED (Rule 132, Sec. 22) 1. By any witness who believes it to be the handwriting of such person because: a. he has seen the person write;

2.

3.

REMEDIAL LAW

b. has seen the writing purporting to be his upon which the witness has acted or been charged; and c. has thus acquired knowledge of the handwriting of such person. By a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. By expert evidence. (Rule 130, Sec.49)

Requisites for admissibility of private document: 1. Offered as authentic – due execution and authenticity must be proved; 2. Either by anyone who saw the document executed or written; 3. Evidence of the genuineness of the signature or handwriting of the maker; 4. Any witness who believes it to be the handwriting of such person because; 5. He has seen the person write, or has seen writing purporting to be his; 6. Upon which the witness has acted or been charged; 7. Has thus acquired knowledge of the handwriting of such person; 8. A comparison, made by the witness or the court, with writings; 9. Admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. PUBLIC DOCUMENTS AS EVIDENCE

(Rule

132, Sec. 23)

a. Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. b. All other public documents are evidence, even against a 3rd person, of the fact which gave rise to their execution and of the date of the latter. PROOF OF OFFICIAL RECORD (Rule 132, Sec. 24)

The record of public documents of official acts may be evidenced by: 1. An official publication thereof; 2. A copy attested by the officer having the legal custody of the record, or his deputy, and if the record is not kept in the Philippines accompanied by a

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certificate that such officer has the custody made by: Secretary of the embassy or legation consul general, consul vice consul, or consular agent; or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept authenticated by the seal of his office. Procedure in obtaining copy of foreign official acts: 1. Get a copy from the legal custodian; 2. Have the legal custodian attest that the copy is correct; and 3. Have the Philippine consul certify that the person in #2 is the legal custodian of a copy of official act. WHAT ATTESTATION OF COPY MUST STATE (Rule 132, Sec. 25) Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance: 1. That the copy is a correct copy of the original, or a specific part thereof, as the case may be; and 2. Be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. IRREMOVABILITY OF PUBLIC RECORD General Rule: Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept. Exception: Upon order of a court where the inspection of the record is essential to the just determination of a pending case. (Rule 132, Sec. 26)

PUBLIC RECORD OF A PRIVATE DOCUMENT Public record of a private document may be proved by: a. The original record; or b. A copy thereof attested by the legal custodian of the record with an appropriate certificate that such officer has the custody thereof. (Rule 132, Sec. 27) PROOF OF LACK OF RECORD Sec. 28) 1.

(Rule 132,

A written statement, signed by an officer having the custody of an

2.

3.

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official record or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office; Accompanied by a certificate that such officer is supposed to have custody. If a notarized document is lost, get certifications of loss from: a. Notary public; b. Bureau of archives; and c. Clerk of court who commissioned the notary public.

HOW JUDICIAL RECORD IMPEACHED Any judicial record may be impeached by evidence of— 1. Want of jurisdiction in the court or judicial officer; 2. Collusion between the parties; or 3. Fraud in the party offering the record, in respect to the proceedings. (Rule 132, Sec. 29)

PROOF OF NOTARIAL DOCUMENTS

(Rule

132, Sec. 30)

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Every instrument duly acknowledged or proved and certified as provided by law may be presented in evidence without further proof. The certificate of acknowledgment is prima facie evidence of the execution of the instrument or document involved.

HOW TO EXPLAIN ALTERATIONS IN DOCUMENT (Rule 132, Sec. 31) A party producing a document as genuine which has been altered and appears to have been altered after its execution in a part material to the question in dispute must account for the alteration upon showing that: 1. the alteration was made by another, without his concurrence; 2. made with the consent of the parties affected by it; 3. It is otherwise properly or innocently made; or 4. the alteration did not change the meaning or language of the instrument. Failure to do otherwise will render the same inadmissible in evidence. 

There shall be no difference between sealed and unsealed private documents insofar as

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their admissibility as evidence is concerned. (Rule 132, Sec. 32)

DOCUMENTS WRITTEN IN AN UNOFFICIAL LANGUAGE (Rule 132, Sec. 33)  Shall not be admitted as evidence, unless accompanied with a translation into English or Filipino.  Parties or their attorneys are directed to have such translation prepared before trial.

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misleading; answer not responsive and to have it stricken-off; question has no basis; incompetent; irrelevant. 2. SUBSTANTIAL – goes into the substance of presentation of evidence. e.g., best evidence rule; parol evidence rule; hearsay.

OFFER OF EVIDENCE (Rule 132, Sec. 34) The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

Requisites for a proper CONTINUING OBJECTION: (Rule 132, Sec. 37) a. In the course of the examination of a witness; b. Objection has been made; c. Reasonably apparent that the questions being propounded are of the same class as those to which objection has been made; and d. Adverse party records his continuing objection to such class of questions.

Note: Failure to do so will render the evidence excluded.

RULING OF THE COURT OBJECTION (Rule 132, Sec. 38)

WHEN TO MAKE OFFER (Rule 132, Sec. 35) Testimony – the time the witness is called to testify.



C. OFFER AND OBJECTION

Documentary and Object – after the presentation of a party's testimonial evidence and before the party rests.  Offer of evidence shall be done orally unless allowed by the court to be done in writing. WHEN OBJECTION TO EVIDENCE OFFERED MUST BE MADE (Rule 132, Sec. 36)

a. Orally – immediately after the offer is made. b. In writing – within 3 days after notice of the offer, unless a different period is allowed by the court. c. A question propounded in the course of the oral examination – as soon as the grounds therefor shall become reasonably apparent.  

The grounds for the objections should always be specified. In objecting, the word “incompetent” is used as a ground in relation to witnesses and not as to evidence.

General Kinds of Objections (in the course of the proceedings): 1. FORMAL – goes into the formalities required by law. e.g., leading;

AFTER

Must be given immediately, unless it desires to take reasonable time to inform itself on the question presented. Shall always be made during trial, and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling.



General Rule: The reason for sustaining or

overruling an objection need not be stated. Exception: If the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon.  The parties may ask for the ground for the ruling, even if the rules does not require the judge to so state.

Requisites

for STRIKING OUT AN ANSWER: (Rule 132, Sec. 39) 1. Witness answers the question before the adverse party had the opportunity to voice fully its objection 2. Objection is found to be meritorious; and 3. Court orders that the answer given be stricken off the record. 

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper.

Note: Matters stricken off are still part of the records. It only means that they won’t be considered for resolution.

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

TENDER OF EXCLUDED EVIDENCE (a.k.a. Proffer of Evidence a.k.a. Offer of Proof) (Rule 132, Sec. 40) How Done: 1. Object or Documentary Evidence – have the same attached or made part of the record. 2. Testimonial – state for the record: a. The name and other personal circumstances of the witness; and b. The substance of the proposed testimony.

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

The court shall consider no evidence, even an extra-judicial confession, which was not formally offered the mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case (People vs. Franco, 269 SCRA 211). Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered. (Philippine Bank of Commerce vs. CA, 195 SCRA 567) Even if there was no formal offer made, evidence can be considered when the following requisites are present: (1) duly identified by testimony, and (2) incorporated in the records of the case. (Ramos vs. Dizon, 498 SCRA 17)

Rule 8, Sec. 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.  Actionable documents are admissible in evidence even if not formally offered. Note:

Mere fact that a document is marked as an exhibit does not mean it has been offered as evidence. Marking at the pre-trial was only for the purpose of identifying them at that time. However, if an exhibit has been duly identified by testimony, duly recorded and has itself been incorporated into the records (i.e., recital of the contents of the exhibit), it may still be admitted as evidence against the adverse party even if there be no formal offer of exhibits. (Tabuena vs. CA, 196 SCRA 650).

RULE 133

WEIGHT AND SUFFICIENCY OF EVIDENCE

When evidence considered offered: 

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Distinction: Admissibility The following requisites must be present for an evidence to be admissible: 1. Rel evant 2. Co mpetent 3. Ide ntified* 4. Aut henticated* 5. Dul y Marked* 6. For mally Offered



Weight and Sufficiency Depends upon the appreciation of the judge. The appreciation of the weight of evidence by the trial courts is always conclusive upon the appellate court.

Not applicable in Testimonial Evidence

In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider: 1. All the facts and circumstances of the case; 2. The witnesses' manner of testifying; 3. Their intelligence; 4. Their means and opportunity of knowing the facts to which they are testifying; 5. The nature of the facts to which they testify;

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6. 7. 8.

9.

The probability or improbability of their testimony; Their interest or want of interest; Their personal credibility so far as the same may legitimately appear upon the trial; Number of witnesses, though the preponderance is not necessarily with the greater number; and (Rule 133, Sec. 1)

10.

Cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence.

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.  Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (Rule 133, Sec. 2)  A defense of self-defense must be proven by clear and convincing evidence.  An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. (Rule 133, Sec. 3) 





The basic fundamental rule in criminal cases is that “the testimony must not only credible by itself but must emanate from a credible witness.” (People vs. Suarez, 456 SCRA 333) In cases against judges which pray for their suspension, dismissal or disbarment, the weight of evidence requires proof beyond reasonable doubt. (Reyes vs. Mangino, January 31, 2005)

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SUBSTANTIAL EVIDENCE – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Rule 133, Sec. 5) EQUIPOISE or EQUIPONDERANCE DOCTRINE  Refers to a situation where: 1. The evidence of the plaintiff and defendant are evenly balanced; or 2. There is doubt on which side of the evidence preponderates, the court shall decide against the party who has the burden of proof. 

Such doctrine is based on the constitutional provision that no one shall be deprived of life, liberty or property without due process of law.

POWER OF THE COURT TO STOP FURTHER EVIDENCE (Rule 133, Sec. 6) The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. EVIDENCE ON MOTION (Rule 133, Sec. 7)  When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties;  But the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

CIRCUMSTANTIAL EVIDENCE, WHEN SUFFICIENT (Rule 133, Sec. 4) Circumstantial evidence is sufficient for conviction if; 1. There is more than one circumstance; 2. The facts from which the inferences are derived are proven; and 3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 

In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if it is supported by substantial evidence. (Rule 133, Sec. 5)

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