Dean Rianos Lecture 2014 1

Example, an Australian resident filed a case for

REMEDIAL LAW accounting plus damages through his lawyers. Defendant filed
an MTD on the ground for lack of jurisdiction as the plaintiff
TRANSCRIPT 1 did not personally come to the Phil.
How does Remedial Law operate? When a right has been Answer: 1.1. MTD is denied.
violated. 1.2. Rule. Personal filing and
The very first part of Civil Procedure is to file a complaint coming to the Phil is not a requisite
because your right is violated. for jurisdiction. When the
Right of action the right to file a complaint complaint is filed, the court
- It arises when your right has been violated. acquires jurisdiction over the
- Remedial, not substantive law. person of the plaintiff.
- You have a right of action because you have a cause of
action. 2. On the issue of prescription in your civil code. The cause of
Do you need a cause of action in all civil actions? action will no longer prescribe because the complaint is filed
No. A cause of action is mandatory only in ordinary civil in court. Art. 1155, NCC.
actions. The prescription of actions is interrupted when they are filed
before the court.
Start with Rule 2 where the real meat starts, Remedial law
starts. Not with Rule 1 because it is only introductory. Rule 14
Cause of Action is in Sec. 2. It involves a right that is violated. Summons
Example. I borrowed P1M from you and I promise to pay you When the complaint is filed and lawful feels are paid.
on April 2014. But when you demanded I didnt pay you. I Clerk of court issues the summons not the court. Summons tell
violated your right as a creditor to be paid. You now have a the defendant to appear and file his answer. Even if the
cause of action. Can go to court. Civ pro now starts to operate. summons tell you to file an answer, the Answer is not the first
Same example. I promised to pay you my debt on April 2014 option of the defendant. Defendant may read the complaint
and on that day until now I didnt pay. You went to court to and say that there are allegations that are hazy, thus it is
sue me. You have no cause of action as there was no demand. possible to file a motion for bill of particulars, Rule 12.
Art. 1169, NCC, no delay if no demand. All substantive laws
are related to remedial law. Rule 12
Bill of Particulars
You do not need a violation of a right in some special civil To clarify the allegations of the complaint. Needs detail. You
actions. But you need a violation of a right in ordinary civil dont file this to ask for evidence but just to ask for details in
actions. Example. Warehouseman. A claims to be the owner. the complaint. The purpose of this is to enable you to prepare
B also claims to be the owner. W is now confronted by 2 a responsive pleading.
conflicting claim of ownerships. If W deliver the goods to A,
B would sue W. W is not a court. So W goes to court and Rule 16
throw the problem to the court for it to decide. Interpleader. Motion to Dismiss
Someone did not violate Ws right. W went to court not Now, it is possible that since the complaint is now clarified
because his right is violated but rather to settle the confusion that the defects thereof are also clear, thus you can file a
of the claim of ownership. motion to dismiss.

Expropriation. I didnt violate the right of the government. It Rule 10

is the government taking my property. Amendment
If you were the plaintiff and there was a motion to dismiss,
ROC is very clear. Only in ordinary action where cause of what is your possible move? Amend your complaint. MTD is
action is mandatory. not a pleading, it is only a motion. So, you can still amend the
pleading as a matter of right. But if there is already an answer,
it is no longer a matter of right, so you need a leave of court.
Filing of the Complaint:
Prepare the Complaint: Rule 2,4,3,6,7,8 Rule 17
Rule 1. Dismissal of Actions
A plaintiff can still dismiss his own complaint.
Jurisdiction over subject matter is not procedural. Not a part of
rules of court. It is a substantive law. Rule 6
What are the EFFECTS OF THE FILING OF Answer
COMPLAINT on jurisdiction over the parties? A responsive pleading to the complaint.
1. The court acquires jurisdiction over the plaintiff not the
defendant. Possibilities:
No answer: Sec. 3, Rule 9. Declare in default.
 Dean Rianos Lecture 2014 2

An answer but there are no specific denials: effect is Our Rules do not logically arrange these topics. So lets
all are admissions: NO ISSUE AT ALL: Judgment rearrange these.
on the Pleadings, Rule 34.
An answer and the only issue NOT A GENUINE BEFORE JUDGMENT BECOMES EXECUTORY (within
ISSUE (ex. He admitted he was negligent but denied the period for appeal)
liability on the amount of damages and not the Motion for Reconsideration, R37
existence of damages): Summary Judgment, Rule 35. Motion for New Trial, R37
Appeal- R 40, 41, 42, 43, 45
Can file a claim against plaintiff: An Answer with
Counterclaim. AFTER JUDGMENT BECOMES EXECUTORY (after the
- It actually involves 2 pleadings: an answer and a period of appeal has lapsed)
counterclaim Annulment of Judgment- R47
- The kinds of counterclaim: Petition for Relief- R38
Compulsory Certiorari R65
Permissive
Rule 39
Counterclaim D v. P Execution and Satisfaction of Judgments

Cross-claim- D1 v. D2 PROVISIONAL REMEDIES

Temporary reliefs during the pendency of action and before
Third Party Claim D v. 3rdy. Needs a leave of court. A 3rdy the judgment is executed.
is not yet a party to the case so you need the permission of the
court to include him. SPECIAL CIVIL ACTIONS
Certiorari R. 65
Intervention to protect my legal right. Needs leave of court.
Rule 19. Now to the nitty gritty...

Reply plaintiff wants to reply to the answer. Not mandatory. JURISDICTION

Even without this, all allegations in the answer are deemed -The court has jurisdiction, not the judge.
denied. - Jurisdiction is not the court. It refers to the authority. A
power to hear, try and decide the case- the traditional view.
Rule 18 - Echegaray v. SOJ, 1999: another element to jurisdiction:
Pre-Trial includes the power to execute the decisions.
- can even use the modes of discovery - in CivPro, there are several aspects of jurisdictions:
> subject matter a substantive law. It is found now
- if no amicable settlement, go to Trial
in Judiciary Reorganization Act of 1980 (BP129), as amended
by RA 7691. It is conferred by law. It is determined by the
Rule 30
allegations of the complaint.
Trial
> parties: plaintiff and defendant. Procedural. Implied
Normally, plaintiff presents the evidence first. But it is
in Summons
possible to have reverse trial in civil case.
> issues- Procedural. Implied in Rule 10.
> res Procedural. Implied also in Summons
Can file demurrer to evidence, Rule 33. It is actually a motion
to dismiss but with another name in order to avoid confusion
- in CrimPro,
with Rule 16. A motion to dismiss is filed even before an
> subject matter: offense charged
Answer is served but a Demurrer to evidence is filed after the
> person of the accused
plaintiff rests his case, meaning he is done with the
> territory - equivalent to venue in civil case. But in civil case,
presentation of his evidence.
venue is just purely venue. But in criminal case, venue is
jurisdiction.
Rule 33
Demurrer to Evidence
In the civil case, venue is not jurisdiction. But in the criminal
That plaintiff has not proven anything. He is not entitled to the
case, venue is jurisdiction.
relief sought for.
MTD in Civil Case ground: improper venue
Rule 36
MTQ in Crim Case ground: lack of jurisdiction
Judgment
Consequences of the principle that jurisdiction of the subject
Remedies against the Judgment.
matter is conferred by law:
Post-Judgment Remedies.
- Jurisdiction over subject matter cannot be waived.
Remedies of a Losing party.
- Cannot be the subject of the stipulation between the
parties
 Dean Rianos Lecture 2014 3

and costs shall be included in the determination of the

Ex. Suppose the parties and the court believed that the case is filing fees: Provided, further, That where there are
within the jurisdiction of the RTC even though technically it several claims or causes of actions between the same
should have been under jurisdiction of the MTC, will the or different parties, embodied in the same complaint,
exercise of the jurisdiction by the RTC because of good faith the amount of the demand shall be the totality of the
validate the judgment of the court that was subsequently claims in all the causes of action, irrespective of
rendered? No! Because the judgment was rendered without the whether the causes of action arose out of the same or
jurisdiction. Jurisdiction cannot be conferred by good faith or different transactions;
honest belief. Good faith and honest belief are not laws and
jurisdiction is conferred by law. "(2)Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer: Provided, That
But if you already know that the court has no jurisdiction but when, in such cases, the defendant raises the
you still participated in the trial despite of such knowledge. questions of ownership in his pleadings and the
And when you were about to lose the case, only then you question of possession cannot be resolved without
questioned the jurisdiction, you may be stopped in questioning deciding the issue of ownership, the issue of
the jurisdiction. This will only come in the following ownership shall be resolved only to determine the
circumstances: issue of possession; and
- Previous knowledge that the court has no jurisdiction "(3)Exclusive original jurisdiction in all civil actions
- Did not question the jurisdiction which involve title to, or possession of, real property,
- Actively and fully participated in the proceedings or any interest therein where the assessed value of the
- When about to lose, only then that you questioned the property or interest therein does not exceed Twenty
jurisdiction thousand pesos (P20,000.00) or, in civil actions in
Metro Manila, where such assessed value does not
Tijam v. Sibonghanoy: you are not allowed to gamble with the exceed Fifty thousand pesos (P50,000.00) exclusive
results of the litigation. of interest, damages of whatever kind, attorney's fees,
litigation expenses and costs: Provided, That in cases
What is the implication of the rule that jurisdiction is of land not declared for taxation purposes, the value
determined by the allegations of the complaint? of such property shall be determined by the assessed
- Do not look at the title of the case given by the plaintiff. value of the adjacent lots." REPUBLIC ACT NO.
Look instead at the material allegations of the complaint. 7691 [1994])
- Barazona v. RTC of Baguio. Sec. 19 of BP 129, as amended
- if demand to vacate and pay= unlawful detainer "Sec. 19.Jurisdiction in civil cases. Regional Trial Courts
- Vacate or pay= collection of sum of money shall exercise exclusive original jurisdiction.
- Vacate or comply with the conditions of the lease = not
unlawful detainer but an action for specific performance "(1)In all civil actions in which the subject of the
- Vacate and comply with the conditions of the lease = litigation is incapable of pecuniary estimation;
unlawful detainer "(2)In all civil actions which involve the title to, or
possession of, real property, or any interest therein,
SPECIFICS of JURISDICTION where the assessed value of the property involved
exceeds Twenty thousand pesos (P20,000,00) or for
Jurisdiction of RTC and MTC civil actions in Metro Manila, where such value
Sec. 33 of BP 129, as amended exceeds Fifty thousand pesos (P50,000.00) except
"Sec. 33.Jurisdiction of Metropolitan Trial Courts, actions for forcible entry into and unlawful detainer
Municipal Trial Courts and Municipal Circuit Trial Courts of lands or buildings, original jurisdiction over which
in Civil Cases. Metropolitan Trial Courts, Municipal Trial is conferred upon the Metropolitan Trial Courts,
Courts, and Municipal Circuit Trial Courts shall exercise: cdt Municipal Trial Courts, and Municipal Circuit Trial
"(1)Exclusive original jurisdiction over civil actions Courts;
and probate proceedings, testate and intestate, "(3)In all actions in admiralty and maritime
including the grant of provisional remedies in proper jurisdiction where the demand or claim exceeds One
cases, where the value of the personal property, hundred thousand pesos (P100,000.00) or, in Metro
estate, or amount of the demand does not exceed One Manila, where such demand or claim exceeds Two
hundred thousand pesos (P100,000.00) or, in Metro hundred thousand pesos (P200,000.00);
Manila where such personal property, estate, or
amount of the demand does not exceed Two hundred "(4)In all matters of probate, both testate and
thousand pesos (P200,000.00), exclusive of interest, intestate, where the gross value of the estate exceeds
damages of whatever kind, attorney's fees, litigation One hundred thousand pesos (P100,000.00) or, in
expenses, and costs, the amount of which must be probate matters in Metro Manila, where such gross
specifically alleged: Provided, That interest, damages value exceeds Two Hundred thousand pesos
of whatever kind, attorney's fees, litigation expenses, (P200,000.00);
 Dean Rianos Lecture 2014 4

"(5)In all actions involving the contract of marriage as there is an RTC judge present, the MTC cannot handle that
and marital relations; case.
"(6)In all cases not within the exclusive jurisdiction Normally which court has jurisdiction over land registration or
of any court, tribunal, person or body exercising cadastral cases? RTC. MTC if delegated by SC. Delegated
judicial or quasi-judicial functions; jurisdiction. Sec. 34 BP129, as amended.
"(7)In all civil actions and special proceedings falling
within the exclusive original jurisdiction of a Juvenile Which court has an exclusive original jurisdiction over
and Domestic Relations Court and of the Court of Forcible Entry or Unlawful Detainer? MTC
Agrarian Relations as now provided by law; and
If an unlawful detainer case was filed in MTC and defendant
"(8)In all other cases in which the demand, exclusive invoked the defense of ownership, will that defense divest the
of interest, damages of whatever kind, attorney's fees, jurisdiction? No. The court can determine (provisionally) the
litigation expenses, and costs or the value of the ownership but only to determine the extent of possession.
property in controversy exceeds One hundred
thousand pesos (P100,000.00) or, in such other cases Can the MTC handle a petition for a writ of Amparo? Writ of
in Metro Manila, where the demand exclusive of the Habeas Data? Never. Though they are special proceedings
abovementioned items exceeds Two Hundred February 19, 2013: SC affirmed na they are spec pro. De Lima
thousand pesos (P200,000.00)." v. Magtanggol Magdulap.
||| (Expanding the Jurisdiction of the MeTCs, MTCs and The most controversial aspect is the real action. They
MCTCs, REPUBLIC ACT NO. 7691 [1994]) continued to be debated because many of the judges are the
products of the old school concept of jurisdiction. Title to,
RA 7691, Section 5.After five (5) years from the possession of or any interest in real property. Sec. 33, BP129
effectivity of this Act, the jurisdictional amounts #3.
mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1) "(3)Exclusive original jurisdiction in all civil actions which
of Batas Pambansa Blg. 129 as amended by this Act, involve title to, or possession of, real property, or any interest
shall be adjusted to Two hundred thousand pesos therein where the assessed value of the property or interest
(P200,000.00). Five (5) years thereafter, such therein does not exceed Twenty thousand pesos (P20,000.00)
jurisdictional amounts shall be adjusted further to or, in civil actions in Metro Manila, where such assessed value
Three hundred thousand pesos does not exceed Fifty thousand pesos (P50,000.00) exclusive
(P300,000.00): Provided, however, That in the case of interest, damages of whatever kind, attorney's fees,
of Metro Manila, the abovementioned jurisdictional litigation expenses and costs: Provided, That in cases of land
amounts shall be adjusted after five (5) years from not declared for taxation purposes, the value of such property
the effectivity of this Act to Four hundred thousand shall be determined by the assessed value of the adjacent
pesos (P400,000.00). lots." cd i||| (REPUBLIC ACT NO. 7691 [1994])
Look at the jurisdictional amount
Sec. 19, #2. "(2)In all civil actions which involve the title to,
Divide the country in two parts: or possession of, real property, or any interest therein, where
Metro Manila-P400K the assessed value of the property involved exceeds Twenty
Outside Metro Manila P300K thousand pesos (P20,000,00) or for civil actions in Metro
Manila, where such value exceeds Fifty thousand pesos
Beyond these amount- RTC (P50,000.00) except actions for forcible entry into and
Exactly these amount MTC unlawful detainer of lands or buildings, original jurisdiction
But in computing those amount, there are numbers which are over which is conferred upon the Metropolitan Trial Courts,
not supposed to include: damages of whatever kind, interests Municipal Trial Courts, and Municipal Circuit Trial
that have not yet accrued, attorneys fees, litigation expenses Courts;||| (REPUBLIC ACT NO. 7691 [1994])
and costs. (DIALiC)
So real property: assessed value, except Unlawful detainer,
Only the main claim! forcible entry.

The rule that damages must not be included in determining TRANSCRIPT 2

jurisdiction applies only when damages is not the main claim. c.f. Valeriano Poncia v. Sps Lomocso 540 scra 1

Since the MTC can handle probate cases depending on the Accion publiciana
gross value of the estate, that is a special proceeding, is there Accion reivindicatoria
any other spec pro which an MTC can handle? Yes. Special Partition of real property
Jurisdiction of MTC Special proceeding of writ of habeas Foreclosure of REM
corpus- not a regular jurisdiction of MTC. Sec. 55 BP129, as Cancellation of title to real property
amended. Only when the RTC judges are all absent. As long Reconveyance of title to real property
Quieting of title
 Dean Rianos Lecture 2014 5

Look at the facts of the case! Specific performance is not de-

Some of those real actions are also actions incapable of kahon!
pecuniary estimation which are cognizable by RTC. But if the
actions are incapable of pecuniary estimation and at the Accion publiciana is to be treated differently from UD/FE.
same time a real action, look at the assessed value. Although all of them involved possession of real property. The
only problem is UD/FE are actions cognizable by MTC
Cancellation of title to real property, involves an interest in always. But AP is cognizable either by MTC or RTC
real property, thus a real action. But the issue is, do you have a depending upon the assessed value and the location of the
right to cancel the real property incapable of pecuniary property. When is an action to recover possession real
estimation. So, must look at the assessed value. property an accion publiciana. Short story: an UD/FE are
actions that have to be filed within 1 year from the accrual of
Look then at the material allegations of the complaint to action. If you were dislodged of the possession by force,
determine the real and primary purpose of the action. Am I intimidation, stealth, strategy, - FE
going to use the doctrine on incapable of pecuniary One year from last demand to vacate UD
estimation? Or am I going to use the doctrine on real actions? If lagpas one year- AP na a delayed action for UD/FE
AP is not a summary proceeding. It is an ordinary civil action.
So if the topic is specific performance, do not immediately FE/UD falls under summary procedure.
answer incapable of pecuniary estimation, thus RTC. Look at
the way the problem has been phrased! The nature of the cause An instance when an action to recover real property is an
of action and jurisdiction is again determined by the material accion publiciana aside from the fact that is filed more than
allegations of the complaint! one year from the accrual of the cause of action is when the
complaint does not allege how the defendant took possession
Example: 1. I offered to sell a parcel of land to you. You of the property; consider it as an accion publiciana.
accepted it. Price is P10M. You paid me. I told you, you can
now occupy the l and. So you built a mansion on the land. But If the allegations of the complaint state clearly the occupancy
the sale is oral, no written document. Is the sale valid? Yes. by the defendant was legal at the beginning but because he did
Art. 1319. Meeting of the minds: offer is certain, acceptance is not pay the rentals or violated the conditions and demand to
absolute. vacate was made and he did not vacate, unlawful detainer. The
Art.1475 possession was legal but became illegal later.

So the buyer went to the RD to register the land. But the RD If he entered the property by force, intimidation, it is forcible
refused to register without the deed of absolute sale. Now the entry. The possession is illegal from the beginning.
seller wont execute the deed. So the buyer would file a case
an action to compel the seller a notarized deed of sale. An Suppose there are no allegations that would point as to
action for specific performance. Are you going to look at the whether it is forcible entry or unlawful detainer, and you are
assessed value of the land or are you going to the RTC recovering possession of real property, that is considered as
because it is incapable of pecuniary estimation? RTC! Your accion publiciana. The issue is only possession.
purpose is only to get a notarized deed of sale and not to
acquire ownership. You already are the owner, the land was If the ownership is the issue; You are recovering possession
already delivered to you. You are not filing an action for because you are the owner, that is already accion
specific performance to acquire ownership, instead it was to reivindicatoria. Look at the assessed value.
get the notarized deed of sale. That document did not give you
ownership. There was already a delivery. It is the delivery of Removal of the cloud on the title, Quieting of title . They are
the subject matter of the sale that brings ownership. real actions and at the same time incapable of pecuniary
estimation. Look at the assessed value.
2. I offered to sell a parcel of land to you. You accepted it.
You paid me. But I told you, you cannot occupy the land Quinagoran v. CA- accion publiciana
until after 6 months. Hence there was payment, meeting August 24, 2007.
of the minds but there is no delivery yet. So the buyer is The doctrine on which the RTC anchored its denial of
not yet the owner of the land. Payment and sale are not petitioner's Motion to Dismiss, as affirmed by the CA that
modes of acquiring ownership. It is the delivery as a all cases of recovery of possession or accion publiciana lies
consequence to the sale that makes one an owner. So after with the regional trial courts regardless of the value of the
6 months still I did not give to you the land. So you filed property no longer holds true. As things now stand, a
an action for specific performance to compel me to distinction must be made between those properties the
execute a notarized deed of sale. The purpose here is to assessed value of which is below P20,000.00, if outside Metro
acquire ownership because there was yet no delivery. So Manila; and P50,000.00, if within. ||| (Quinagoran v. Court of
the execution of notarized deed of sale is equivalent to Appeals, G.R. No. 155179, August 24, 2007)
delivery. Art. 1498, NCC. So this is a real action; the
purpose of acquiring ownership. Heirs Valeriano case December 12, 2007
In a number of cases, we have held that actions for
reconveyance of or for cancellation of title to or to quiet
 Dean Rianos Lecture 2014 6

title over real property are actions that fall under the In view of the foregoing, it is declared that the
classification of cases that involve "title to, or possession of, respondent Judge of the Court of First Instance of Rizal is
real property, or any interest therein." without jurisdiction to try the case referred to, and he is
The original text of Section 19 (2) of B.P. 129 as well as its ordered to stop further proceedings by dismissing the
forerunner, Section 44 (b) of R.A. 296, 47 as amended, gave case.
the RTCs (formerly courts of first instance) exclusive original ||| (Cruz v. Tan, G.R. No. L-3448, November 27, 1950)
jurisdiction "[i]n all civil actions which involve the title to,
or possession of, real property, or any interest Action for interpleader: if the object of the interpleader is
therein,except actions for forcible entry into and unlawful personal property or movable property like goods, look at the
detainer of lands or buildings, original jurisdiction over which value of the property. If you are in Metro Manila, P400,000.
is conferred upon Metropolitan Trial Courts, [MTCs], and Outside it is P300,000. That is if personal property
Municipal Circuit Trial Courts (conferred upon the city and
municipal courts under R.A. 296, as amended)." Thus, under If the object of the interpleader is a real property, look at the
the old law, there was no substantial effect on jurisdiction assessed value because it is a real property, Manila P50,000.
whether a case is one, the subject matter of which was Outside, P20,000
incapable of pecuniary estimation, under Section 19 (1)
of B.P. 129 or one involving title to property under Section 19 If the object is a performance of the service, RTC, it is
(2). The distinction between the two classes became crucial incapable of pecuniary estimation.
with the amendment introduced by R.A. No. 7691 48 in 1994
which expanded the exclusive original jurisdiction of the first Petition for declaratory relief- RTC, incapable of pecuniary
level courts to include "all civil actions which involve title to, estimation.
or possession of, real property, or any interest therein where
RULE 63
the assessed value of the property or interest therein does
not exceed Twenty thousand pesos (P20,000.00) or, in civil Declaratory Relief and Similar Remedies
actions in Metro Manila, where such assessed value does SECTION 1. Who may file petition. Any person interested
not exceed Fifty thousand pesos (P50,000.00) exclusive of under a deed, will, contract or other written instrument, or
interest, damages of whatever kind, attorney's fees, whose rights are affected by a statute, executive order or
litigation expenses and costs." Thus, under the present law, regulation, ordinance, or any other governmental regulation
original jurisdiction over cases the subject matter of which may, before breach or violation thereof, bring an action in the
involves "title to, possession of, real property or any interest appropriate Regional Trial Court to determine any
therein" under Section 19 (2) of B.P. 129is divided between question of construction or validity arising, and for a
the first and second level courts, with the assessed value of the declaration of his rights or duties, thereunder.
real property involved as the benchmark. This amendment was
introduced to "unclog the overloaded dockets of the RTCs
which would result in the speedier administration of justice." An action for the reformation of an instrument, to quiet title to
||| (Heirs of Concha, Sr. v. Spouses Lumocso, G.R. No. real property or remove clouds therefrom, or to consolidate
158121, December 12, 2007) ownership under Article 1607 of the Civil Code, may be
brought under this Rule. (1a, R64) (As amended by
Real action- involves title to, possession of or any interest to Resolution of the Supreme Court, Feb. 17, 1998)
real property ||| (Rules of Court [1997])

Specific performance (incapable of pecuniary estimation) - An action for reformation of an instrument, quieting of
(main action) AND P100,000 damages (MTC) (incidental)= title, removal of clouds, consolidation of ownership
RTC. RTC, incapable of pecuniary estimation.
- You are not filing an action to reform a contract. It is to
Specific performance OR P100,000 damages = MTC, reform an INSTRUMENT!
Look at the amount of the damage, because it is in the - If the contract itself is defective, you just enter a new
alternative. contract. It is not defined as a document nor an
instrument. It is the meeting of the mind.
The jurisdiction of the respective courts is
determined by the value of the demand and not the value In consolidation of ownership, do not look at the assessed
of the transaction out of which thedemand arose; that is value because you file it not to acquire ownership as you are
what the law says in unmistakable terms. The alternative already the owner but instead you file it so that your
prayer for specific performance is also of the same value, consolidation of ownership will be registered. There can be no
for, as said above, the alternative prayers would not have registration without a court order. Local Sales: two kinds of
been made in the complaint if one was more valuable than redemption: Legal redemption, Conventional redemption.
the other; hence, the specific performancealternatively Lets say I sold to you a house and lot subject to redemption.
prayed for, is capable of pecuniary estimation at P644.31 Within the period for redemption I was not able to redeem.
(sec. 88, par. 2, Rep. Act No. 296). What happens? Consolidation of ownership upon the buyer.
So the ownership is acquired by the buyer by operation of law
 Dean Rianos Lecture 2014 7

by failure of the seller to redeem. But that consolidation of mo dahil ang petition ng certiorari ay para kang nag-file
ownership needs a court order for it to be registered. ng original na kaso na kapag natalo ka mag-aapeal ka.
Art. 1607, NCC. In case of real property, the consolidation of - Ang mode of appeal ay ang Rule 45. Rule 65 hindi mode
ownership in the vendee by virtue of the failure of the vendor of appeal!
to comply with the provisions of article 1616 shall not be - San mo fina-file ang Rule 45, SC lang. ;)
recorded in the Registry of Property without a judicial order, - The filing of the petition for certiorari in CA does not
after the vendor has been duly heard. (n) have the effect of interrupting the course of the principal
- The failure to redeem already has the effect of case in the RTC. The RTC judge has the obligation to
consolidation of ownership. But it shall not be recorded proceed with the case in the RTC within 10 days from
in the Registry of Property without judicial order. filing the petition for certiorari. To stop the proceedings
below, you have to get a writ of preliminary injunction or
Which court has jurisdiction over the judgments of a TRO.
COMELEC and COA? - SC has observed that whenever a counsel does not agree
- SC. Rule 64. with the court the counsel always file a petition for
- There is NO MODE OF APPEAL! Be very careful on certiorari against the court and this delays the
this. You dont go to SC from the COMELEC or COA in proceedings below. Because if you file a case for petition
order to appeal. SC has no jurisdiction over appellate for certiorari in the CA against the RTC, the old practice
procedures from COMELEC and COA. You go to the was that the RTC will not continue with the case on the
SC in a petition for certiorari under Rule 65 which is not ground of judicial courtesy that there is a pending
a mode of appeal. It is an independent original special certiorari against them. So it will stop the case below.
civil action. IT IS NOT AN APPEAL! It is a mode of Justice is delayed. That judicial courtesy is no longer
Review. There are 2 modes of review: allowed. Lower court should proceed with the case
1) Appeal 2.)Certiorari, Rule 65 unless it is prevented from doing so through a writ of
preliminary injunction or TRO. If the judge does not
Certiorari under Rule 64 is only directed to the COA and continue with the case and there is no injunction or TRO,
COMELEC. Rule 65 in Rule 64 is mestizo Rule 65. The pure he will be subjected to disciplinary action.
and true Rule 65 is the certiorari in Rule 65. The certiorari in - Sec. 7, Rule 65 is a five-star provision.
Rule 65 is to be filed within 60 days from notice of judgment SECTION 7. Expediting Proceedings; Injunctive Relief.
or final order. But the Rule 65 in Rule 64 is to be filed in 30 The court in which the petition is filed may issue orders
days. Rule 65 in Rule 64 is only for COMELEC and COA. expediting the proceedings, and it may also grant a temporary
Rule 65 in Rule 65 is for all other tribunal, board or officer restraining order or a writ of preliminary injunction for the
exercising judicial or quasi-judicial functions. preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the
Where can you file the Rule 65 petition in Rule 65? RTC, CA, principal case, unless a temporary restraining order or a
Sandiganbayan, SC writ of preliminary injunction has been issued, enjoining the
public respondent from further proceeding with the case.
Rule 65 under Rule 64? Only SC
The public respondent shall proceed with the principal case
within ten (10) days from the filing of a petition
Lets go to Rule 65 the 3 special civil actions:
for certiorari with a higher court or tribunal, absent a
Certiorari, Prohibition, Mandamus
temporary restraining order or a preliminary injunction, or
- Can be filed in any court except for Certiorari where the
upon its expiration. Failure of the public respondent to
lowest court that it can be filed is RTC
proceed with the principal case may be a ground for an
- When you file petition for certiorari under R65, you are administrative charge.
not appealing. You are not talking about the merits of the
case. You are concentrating on the fact that the lower - ||| (Amendments to Rules 41, 45, 58 and 65 of the Rules of
tribunal has committed acts amounting to lack of Court, A.M. No. 07-7-12-SC [2007])
jurisdiction. It acted without jurisdiction or with grave - This is a potential question for an essay problem. This
abuse of discretion or in excess of jurisdiction amounting has far-reaching significance!
to lack of jurisdiction. The issue is JURISDICTIONAL. - Problem: <P, plaintiff: D, defendant> suppose, D noticed
The petition for certiorari Rule 65 might have its roots in a defect in the allegations. So D filed an MTD for failure
the case below. But it is not about whether the court to state a cause of action. Denied. D filed an MR.
committed errors in the appreciation of the facts and Alleging grave abuse of discretion, D filed R65 for
evidence. But it is the grave abuse of discretion. When certiorari before CA against RTC. P filed a motion to
you file certiorari under Rule 65 is like filing a new declare D in default for failure to file an answer within
action. the period. RTC granted the default. Is the RTC wrong
- Ex. I filed a petition for certiorari in the CA against the when it declared D in default? No. The filing of the
grave abuse of discretion of the RTC. I lost in the CA. petition for certiorari does not interrupt the period for
What is the remedy against the CA? Appeal. Because it filing the answer absent TRO or prelim injunction, thus
is like filing a new case. Ang decision sa certiorari hindi default.
mo cinecertiorari. Ang decision sa certiorari ina-appeal
 Dean Rianos Lecture 2014 8

- How can you prevent the court from making the a married person. It is not an action in personam. But an action
declaration of default? Ask for the issuance of TRO and in rem. Pedro cannot file an action for annulment without
writ of preliminary injunction. mentioning that he is married so he must mention the person
Where do you file expropriation proceeding under Rule 67? to whom he is married.
RTC. Always incapable of pecuniary estimation even if the
object is a real property. The issue in this case is, does the When an action is in rem or quasi-in rem, jurisdiction over the
government agency has the right to expropriate the property. defendant is not required. What is required is jurisdiction over
The issue as to the right is incapable of pecuniary estimation. the res. The res is the property or the status of the plaintiff.
You only need a jurisdiction over the person of the defendant
Where do you file for the foreclosure of the REM? Look at the in an action in personam. It is in action in personam where
assessed value. Rule 68. there is a true defendant where you want him to be liable, to
perform an act in your favour.
Where do you file the partition of real property under Rule 69?
Look at the assessed value. A partition of real property An action to declare my filiation is an action in rem, it is about
involves an interest of real property and it requires my status. But when I file an action against this lady to
determination of the assessed value. recognize me as her natural child, the action is directed to her
for her to recognize me. It is not an action against the whole
Where do you file Rule 70, forcible entry/unlawful detainer? world dahil hindi ako anak ng mundo! Anak lang ako nya. I-
MTC recognize mo ako! That is an action in personam. But an
action to declare mere filiation is an action in rem.
Where do you file a petition for indirect contempt? In the
court which is the object of the contempt. But if the object is Kung si armi ay nangutang sakin ng P1M at ayaw nyang
the MTC, you can file it either in RTC or MTC itself. Ang magbayad and when I demanded money binatukan nya ako ng
finafilan ng action is indirect contempt. Ang direct contempt singkamas then I sue her for collection of sum of money. The
walang action2x, right there and then you can be declared court needs to acquire jurisdiction over her. That is an action
direct contempt. Ang indirect contempt may action pa yan. in personam.
Pag inaway ka ng misis mo, at inuntok ka ng misis mo, anong
court ang may jurisdiction? Wala, hospital ka muna! @.@ Si Elen ay nagdadrive ng kotse na pakantakanta pa with
feelings and closed her eyes. I crossed the street. She hit me
JURISDICTION OVER THE PARTIES but I survived and I want to sue her for damages. An action in
-basically there are 2 parties: plaintiff and defendant personam. The court needs jurisdiction over her person.
How does the court acquire jurisdiction over the plaintiff? By
filing complaint If X is renting my apartment and he does not pay the rentals
How does the court acquire jurisdiction over the defendant? and I want him to vacate the premises. I will file unlawful
By serving summons or voluntary submission detainer. It is an action in personam. A recovery of property
from the person possessing it is an action in personam (accion
When the issue is jurisdiction over the defendant, not all cases publiciana, unlawful detainer, forcible entry, replevin).
require jurisdiction over defendant. Why? Because there are
some civil cases without defendant. And even if there is a Quasi in rem. No need jurisdiction over the person of the
named defendant, it is not a true defendant but only a nominal defendant but only over the res. Action for accounting.
defendant. You only acquire jurisdiction over the defendant Attachment proceedings. Partition of real property.
when it is a true defendant that is in an action in personam. Foreclosure of REM.

Example. I filed a land registration case, cognizable by RTC In personam, the court needs jurisdiction over the person.
(generally unless delegated to MTC). There is no defendant. Action for a sum of money. Action for damages, UD/FE,
The object of the action is the property. The res. Jurisdiction accion publiciana, accion reivindicatoria.
over the res. Land registration case is an action in rem.
JURISDICTION OVER THE ISSUES
I filed a probate proceeding for allowance of the will. What is How do you know the issues of the civil case? Look at the
the object? The will. I am not filing it against a particular pleadings of the parties. The complaint as material allegations.
defendant. So no need of jurisdiction over defendant because If the material allegations are not specifically denied, no
there is no defendant. Probate proceeding is an action in rem. issues. They are deemed admissions.
Rule 8, SECTION 11. Allegations Not Specifically Denied
On the other hand, there are actions where there are named Deemed Admitted. Material averment in the complaint,
defendants but they are only nominal defendants because you other than those as to the amount of unliquidated damages,
cannot proceed with the case without naming the person. shall be deemed admitted when not specifically denied.
Ex. Elen and Pedro are couple. Pedro filed an action for Allegations of usury in a complaint to recover usurious
annulment of marriage against Elen because of force and interest are deemed admitted if not denied under oath. (1a, R9)
intimidation against the former. Is there a defendant named?
Yes. Elen but only a nominal defendant. The action is directed An issue arises when the party specifically denies a material
against the relationship. The relationship involves the status as allegation. For example,
 Dean Rianos Lecture 2014 9

Allegations:
1. The complaint says that D borrowed P5M from P. D did not Illustration: I sued X for P5K. While I was presenting my
deny that particular allegation. There is an admission. So no evidence, it was shown that he owes me P7K. You are the
more issue as to WON there is debt coz theres no specific counsel of the other party what is your move? Objection your
denial. There is no issue. honor, the P7K is irrelevant as the pleadings only talked about
P5K. What will the court say? Sustain. The P7K is not in the
2. That the debt is already due. There was no specific denial pleadings. The evidence must prove up to the extent of P5K
that the debt is due. So there is no issue as to whether the because that is in the pleadings. Now, suppose you do not
debt is already due. object to the P7K, it is as if the pleadings were talking about
P7K not P5K because you consented to it. So the court can
3. There was a demand of the duty to pay. There was no render judgment on it na. If segurista ka, you can move to
specific denial. The demand was not denied. It is amend the pleadings, to conform to the evidence. But even if
admitted. Due date is not denied. It is admitted. Existence you do not amend it, it doesnt matter na coz it is considered
of the debt is admitted. as part of the pleadings. This is an implied amendment of the
pleadings. Failure to object.
4. Despite demand he did not pay, no its not true coz I paid.
The issue is whether or not there was payment. There was an action to collect a sum of money P500K. In the
complaint, there was no allegation that he demanded payment
before filing the action. There was no objection from the other
That is how an issue arises. side. During the trial, the plaintiff offered in evidence, Exhibit
Because if he admits that there was no payment despite A- a written demand to pay. There was no objection from the
demand, plaintiff may simply file a motion for judgment on other party. Question, is the court in error if it admits Exhibit
the pleadings which presupposes that there is no issue at all. A? No. It was tried with the consent of the other party. There
Summary judgment presupposes a non-genuine issue. was no objection. An implied amendment of the pleading to
include the demand even if it was not included in the pleading.
Now, issues in the case can also arise because of the
stipulation of the parties during the pre-trial. What do you It is not enough to know about jurisdiction. You must also
mean when you say that the court has jurisdiction over the know about where the court sits. About the geographical
issues? That simply means that if the parties are quarrelling location. VENUE.
over P5M, the issue in the pleadings, the court has no
jurisdiction to render judgment for P10M because that P10M There are many MTCs but which MTCs? The one in
is not the issue of the case. The issue is only P5M. When the Mandaue? Lapu2x? Cebu City? Venue in the civil case is only
issue on the case is only ownership as found in the pleadings, venue.
the court can only render judgment as to ownership but cannot
render judgment as to possession where possession is not the Venue in criminal case is jurisdictional
issue of the case because ownership is not possession and
possession is not ownership. They are different concepts. When the venue in the civil case is erroneous, the ground for
the MTD is improper venue.
But even if a matter is not an issue in the pleading but that is
tried in the case with the consent of the other party because When the venue in the criminal case is erroneous, the ground
there was no objection, that matter which is not an issue in the for the MTQ is lack of jurisdiction.
case is considered to have become an issue on the case as if
There is a shortcut to determine venue. Is the action a personal
found in the pleadings because they were tried with the
action or is it a real action? That is the first thing that should
consent of the parties.
come to your mind.
Rule 10, SECTION 5. Amendment to Conform to or Authorize The rules do not define the personal actions. It only defines
Presentation of Evidence. When issues not raised by the real actions. Those not falling under real actions are personal
pleadings are tried with the express or implied consent of the actions.
parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as Real Actions. Actions affecting title to or possession of real
may be necessary to cause them to conform to the evidence property, or interest therein.
and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to amend If the action is real you are going to look at where the property
does not affect the result of the trial of these issues. If or any part of it is situated. Do not consider the residences of
evidence is objected to at the trial on the ground that it is not the parties. The plaintiff has no choice, there is only one
within the issues made by the pleadings, the court may allow choice- where the real property is located.
the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the If the action is person, ask where does the plaintiff reside?
ends of substantial justice will be subserved thereby. Defendant reside? The plaintiff has the choice.
The court may grant a continuance to enable the amendment
to be made. (5a)
 Dean Rianos Lecture 2014 10

Action to collect a sum of money, plaintiff is from Quezon (a) In those cases where a specific rule or
City, defendant is from Makati City, amount to be collected law provides otherwise; or
P350K. Which court has jurisdiction? Metropolitan Trial (b) Where the parties have validly agreed
Court. In what place shall the action be filed (venue)? This is a in writing before the filing of the
personal action, the venue is the residence of the plaintiff, action on the exclusive venue
residence of defendant at the option of the plaintiff. So the thereof. (3a, 5a)
plaintiff can file it in Quezon City or Makati City. If it is filed
in Pasay City, improper venue. Remedy is MTD on the ground An oral stipulation of venue will not bind the court. The court
of improper venue. If denied, file first an MR. Denied, there is may or may not disregard that stipulation.
now grave abuse of discretion, file with the RTC (hierarchy of
2. The stipulation must be agreed upon before any
courts) a certiorari.
action is filed.
Change the problem. A parcel of land located in Pasay City. 3. For the stipulation to prevail, the stipulation must be
The plaintiff is from Manila, defendant is from Quezon City. an exclusive or restrictive stipulation because if it is
The action is an accion publiciana. The venue is at Pasay City. not restrictive the stipulated venue may not be
The court which has jurisdiction depends on the assessed followed even by a party. Jurisprudence calls it a
value. permissive stipulation. If the stipulation is restrictive
or exclusive there is no other venue except the one
If the land is located on the borderline of Pasay and agreed upon. The Rules we talked about a few
Paranaque, file the action in either place where the part of the minutes ago (residence if personal action, location if
real property in litigation is located. You cannot file in both real action) will no longer apply except the agreed
places because it will amount to forum shopping. venue. But if the stipulation is permissive, the Rules
will still apply including the stipulated venue. To
A parcel of land located in Batangas City. Plaintiff lives in determine whether it is restrictive or permissive, use
Manila, Defendant lives in Lucena City. Accion publiciana. common sense, just look at the words
Assessed value is P10K. What court has jurisdiction?MTC.
Plaintiff filed it in MTC Manila because he is from Manila. Example. The promissory note was executed by the maker. If
MTC dismissed it on the ground of lack of jurisdiction. the maker is from QC, payee is from Manila. The agreement
Improper ground, it should have been improper venue. MTC was that all actions arising from the note shall be filed in
has jurisdiction over the accion publiciana where the assessed Malolos, Bulacan and in no other place. If there was no
value is P10K. The problem is venue and not jurisdiction. But stipulation and the payee in Manila files a case againt the
if it was filed in RTC Manila, the problem is not only venue maker the venue would have been either Manila or QC at the
but also jurisdiction. In the civil case where the venue is the option of the plaintiff. But here you have such a stipulation. It
defect do not include jurisdiction in your answer. Jurisdiction cannot be filed in Manila or QC. It is restrictive, thus it can
has nothing to do with venue. only be filed in Malolos, Bulacan. If in the example there was
no phrase and in no other place, it becomes permissive.
Thus the action can be filed in Manila or QC or Malolos,
Bulacan Malolos becomes then an additional venue.
Car A rear-ended Car B, tinamaan sa likuran, coz the driver
was negligent. Accident happened in San Fernando,
Pampanga. A is from Manila, B is from Quezon City. The
action is reckless imprudence resulting in damage to property. The case was filed in RTC, an action for the recission for the
Venue? This is a criminal action, so where the offense contract of sale of a car. P from Manila, D from QC. The
occurred. So it is in San Fernando, Pampanga. But it was filed action should be filed in either Manila or QC, the car is not a
in Quezon City, ground for MTQ? Lack of jurisdiction. No real property. But the case was filed in Makati City. So the
criminal case filed, instead an action for damages was filed court on its own initiative dismissed the complaint on the
based on quasi-delict. Venue? Either Manila or Quezon at the ground of improper venue. Did the court act correctly in motu
option of plaintiff. If the venue is improper because it was proprio in dismissing the complaint? No. No matter how
filed in Pampanga, the ground for MTD is improper venue. wrong the venue is, if no party complains (there is a waiver of
venue) about it, it is not for the court to take the cudgels for
Watch out for stipulations of venue. Can venue be stipulated the party and dismiss it motu proprio.
upon? Yes, venue can be the subject of stipulation.
Jurisdiction cannot be the subject of stipulation. Venue can Is there an instance where the court can dismiss the case on
even be waived by the parties if nobody objects; while any ground including improper venue motu proprio even
jurisdiction cannot be waived. without an MTD? Yes. When the case falls under summary
procedure. The most popular cases are forcible entry and
For a stipulation of venue to be submitted to the court, unlawful detainer.

1. It has to be a written stipulation. Revised Rule on Summary Procedure, SECTION

4. Duty of Court. After the court determines that the
Rule 4, SECTION 4. When Rule not Applicable. This Rule case falls under summary procedure, it may, from an
shall not apply examination of the allegations therein and such evidence
 Dean Rianos Lecture 2014 11

as may be attached thereto, dismiss the case outright on When you have a cause of action, the rule is that you state it!
any of the grounds apparent therefrom for the dismissal of If you do not state it you are risking a dismissal of the
a civil action. If no ground for dismissal is found it shall complaint on the ground that the complaint states no cause of
forthwith issue summons which shall state that action. In relation to cause of action, the ground for dismissal
the summary procedure under this Rule shall apply. d-c is not lack of or absence of cause of action but failure to state
the cause of action.

RULE 16, SECTION 1. Grounds. Within the time for

The court may dismiss on any of the grounds for the dismissal
but before filing the answer to the complaint or pleading
civil action even without an MTD on forcible entry and
asserting a claim, a motion to dismiss may be made on
unlawful detainer. But the general rule is that the court cannot
dismiss the case motu proprio on the ground of improper any ofthe following grounds:
venue. xxx
(g) That the pleading asserting the claim
The court can motu proprio dismiss the case on the ground of
states no cause of action;
lack of jurisdiction over the subject matter, res judicata, litis
pendentia, prescription. This does not include improper venue. xxx
These grounds are found in Rule 9, SECTION 1. Defenses and You may have a cause of action but if you did not state that in
Objections Not Pleaded. Defenses and objections not your complaint it could be dismissed for failure to state a
pleaded either in a motion to dismiss or in the answer are cause of action. Kunyari, ang love is cause of action. Mahal na
deemed waived. However, when it appears from the pleadings mahal ko sya. Head over heels. Sa pagmamahal ko sa kanya
or the evidence on record that the court has no jurisdiction bumabalentong na ako. May cause of action ako sa kanya. Di
over the subject matter, that there is another action pending na nga ako nakakatulog sa pagmamahal ko sa kanya. But di ko
between the same parties for the same cause, or that the action masabi na mahal ko sya, that is failure to state a cause of
is barred by a prior judgment or by statute of limitations, action. Boom! That is a ground for dismissal.
the court shall dismiss the claim. (2a)
Nangutang ako sa kanya ng P500K. The debt has been due 3
days ago. She demanded but I did not pay. She has a cause of
Example: The case is in the RTC. MTD was filed for lack of action against me. But once she filed a case against me the
jurisdiction. The court said it had the jurisdiction because it allegations are the following: the defendant borrowed P500K;
was an action incapable of pecuniary estimation. But the the debt is due; until now the debt has not been paid. There is
venue was improper so the court dismissed it in its own here a failure to state a cause of action due to absence of one
motion, did the court act correctly? No. It would tantamount to element which is the demand to pay.
motu proprio dismissal and the court cannot do that. Look, the
case was in RTC, surely it was not a summary procedure Do not split a single cause of action. OW, that would be
because if it were so then it would have been filed in MTC. multiplication of suits. That would clog the court dockets.
How do you know that there is a splitting of cause of action?
The case is in the MTC, forcible entry, ground for MTD is Very difficult to explain but we can illustrate.
lack of jurisdiction. The court said it had the jurisdiction but Complaints or causes of action normally have 2 parts. 1. Main
there was improper venue so it decided to motu prorpio relief 2. The incidental relief
dismiss the case. The court is correct because it is a summary
procedure where the court can make a motu proprio dismissal For example. The main relief is collection of a sum of money.
on any of the grounds for the dismissal of the civil actions The incidental relief could be interest and/or damage. When
including improper venue. you file an action to collect a sum of money you have to
include a demand the payment for interest and/or damage
The case is in the RTC, MTD on the ground of improper because they constitute a single cause of action. The splitting
venue. The court said that the venue is proper but the court of a single cause of action comes when you file a complaint
had no jurisdiction because the amount is P350,000 and the for sum of money and later on you file a separate complaint
place is Pasay City. So the court decided to motu proprio for the recovery of interest and/or damages for the same action
dismiss the case on the ground of lack of jurisdiction even if for the sum of money. That cannot be done. Normally it is the
the MTD is anchored on improper venue. Can the court do 2nd suit that will be dismissed on the basis of litis pendentia. If
that? Yes. For lack of jurisdiction over the subject matter, litis the main action is done and after that you sued me for P1M,
pendentia, res judicata and prescription. you won and recovered the P1M. But you forgot to include a
claim for interest and/or damages. So you filed an action for
For all other grounds, there must be an MTD except when the that interest and/or damages. That action will be dismissed by
case falls under a summary procedure. filing MTD on the ground of res judicata dahil tapos na yung
unang kaso. If pending both, the ground would be litis
pendentia. If the ground was res judicata or litis pendentia,
CAUSE OF ACTIONS isang case lang madi-dismiss. Para ma-dismiss mo yung 2
cases ng sabay huwag mong gamitan ng res judicata or litis
It is mandatory in ordinary civil actions only ^_^ pendentia, ground mo dapat forum-shopping, dismiss lahat
yan ^_^ willfull and deliberate forum shopping, summary ang
 Dean Rianos Lecture 2014 12

dismissal. That kind of forum shopping is a separate ground damages. There is an issue as to the amount of interest and/or
for dismissal not found in Rule 16. damages but is not a genuine issue. So plaintiff can possibly
file a motion for summary judgment.
Joinder of Causes of Action
This is not bawal. It is the splitting of the cause of action that In filing the answer, the defendant could include a claim
is bawal. Ang isa huwag mong paramihin. But yung marami against the plaintiff which is called Counterclaim. Defendant
pwede mong pag-isahin, thats not bawal. Example, Alex could include a claim against a co-defendant called, cross-
married a widow who has a child. Dont separate that child claim. Someone not party to the action may be brought by the
from his mom, bawal ang splitting. Sa Pinas, mahilig sa defendant to become a party to the action with leave of court
joinder. Pag pinakasalan kita, pati nanay mo, tatay mo pwede so that he will answer for the liability, thus a Third-Party
tumira satin. Complaint. But there is this guy who is not a party to the
action, he notices that he has a legal interest in the action, he
This presupposes several causes of action that can be joined. wants to gate crash but with the permission of the court and
In analyzing this, we are going to make a formula for our own that method of entering in the case is called an Intervention.
consumption only. hehe. DO NOT USE THESE WORDS IN
THE BAR as the bar examiner will not understand you. Plaintiff files a complaint, defendant files an answer, plaintiff
wants to file an answer to the answer and this is called Reply.
Formula 1: One on One Situation
- One plaintiff vs. One defendant All the pleadings now are in court and the pleading stage is
- Ex. Defendant owes the following amounts: PN: P250K, over. Then the plaintiff files a motion to set the case for pre-
P185K, P275K, borrowed for different reasons, separate trial. Amicable settlement. Trial. Judgment. Losing party can
transactions, and all of them are already due and avail of certain remedies against the judgment.
demands are made for the payment but no payment was
made. How many causes of action are there? 3. How Period for appeal: MR, MNT, Appeal
many complaints to be filed? 3. One cause of action =
one complaint. Now, is it possible for the plaintiff to file After the period of appeal: Annulment of judgment, Petition
a single action to collect those 3 amounts represented by for Relief, Certiorari.
3 promissory notes? Yes. If there is only one plaintiff
and one defendant, no problem even if they are totally After all remedies have been exhausted and the defendant still
unrelated from each other, they can all be joined as long lost, the plaintiff shall file a motion for execution of judgment.
as none of them is a special civil action nor governed by
special rules. If you are outside Metro Manila and you Is it possible for a party to have remedies even before the case
file them separately, the MTC has jurisdiction. If you is over? Yes. Can he get something from the court even the
join all of them, apply the totality rule, now the RTC has court makes a final judgment? Yes. Provisional Remedies.
jurisdiction.
Sample bar problem. X is a stockholder of a corporation. He
Formula 2: Rumble Situations went abroad and transferred his shares of stocks to Y a mere
- Several plaintiffs or several defendants trustee. For 5 years, Y was receiving the dividends. X came
back to Phil and asked Y to transfer back the shares. Y
TRANSCRIPT 3 refused. X filed a case and won. When the shares were
The clerk of court issues summons pursuant to constitutional transferred to the name of X. X then filed a case to recover the
due process. The summons are served upon the defendant dividends Y had received for 5 years. Y filed an MTD on the
telling him to file an answer; otherwise, the court would grant ground of res judicata. Is the 2nd action is barred by a prior
the relief sought for. But then he tells himself; how can I file judgment? Yes. When he filed an action to recover his shares
the answer when the allegation are vague? He needs more he should have included in his prayer the recovery of the
details so he is now going to file a motion for a bill of dividends that accrued to those shares for the 5 years. They
particulars. So the court orders the plaintiff to file a bill of constitute a single cause of action. The main action was to
particulars. The plaintiff followed it. Then the complaint was recover the shares, the incidental action was to recover the
made clear, the defects became patent as well. So defendant dividends accruing to those shares. They cannot be separated.
filed an MTD. Unfortunately the court denied it. So defendant There should be no splitting of the cause of action. Failure to
just have to file an answer. If he doesnt file an answer, the include the recovery of damages barred recovery because the
consequence would be that he will be in default upon motion first case was already over. Res judicata
to declare default by the plaintiff.
REMEDIAL LAW; ACTIONS;
Defendant filed an answer but did not make any specific SPLITTING OF SINGLE CAUSE OF ACTION; INSTANT
denials. The effect is that all material allegations in the CASE. Appellant's position that the
complaint have been admitted. There are no issues, no trial. second action of appellee for the collection of surcharges
Plaintiff files a motion on the judgment of pleadings. cannot be maintained because (1) a party may not institute
more than one suit for a single cause of action; and (2)
Defendant filed an answer but did not deny the material appellee'saction for recovery of the surcharges in question is
allegations. He only denied the amount of interest and/or barred by prior judgment is essentially correct. There is no
 Dean Rianos Lecture 2014 13

question that appellee split up its cause ofaction when it filed be litis pendentia, or it has already been finally terminated, in
the first complaint on March 23, 1960, seeking the which case, the defense would be res adjudicata. Indeed, litis
recovery of only the bottling taxes or charges plus legal pendentia and res adjudicata, on the one hand, and splitting
interest, without mentioning in any manner the surcharges. It up a cause of action on the other, are not separate and distinct
cannot be denied that appellant's failure to pay the bottling defenses, since either of the former is by law only the result or
charges or taxes and the surcharges for delinquency in the effect of the latter, or, better said, the sanction for or behind it.
payment thereof constitutes but one ||| (City of Bacolod v. San Miguel Brewery, Inc., G.R. No. L-
single cause of action which can be the subject of only one 25134, October 30, 1969)
complaint, under pain of either ofthem being barred if not
included in the same complaint with the other. Another example, I filed an action for unlawful detainer
2. ID.; ID.; CAUSE OF ACTION DEFINED. The classical against X. I won and he was ejected. 2 months after, I forgot
definition of a cause of action is that it is "a delict or wrong by na he did not pay the rentals in arrear. I filed a case to recover
which the rights of the plaintiff are violated by the defendant." those rentals in arrears. It is barred! When you file an unlawful
Its elements may be generally stated to be (1) a right existing detainer case, it should have already included the recovery of
in favor of the plaintiff; (2) a corresponding obligation on the those rentals. No splitting of cause of action is allowed.
part of the defendant to respect such right; and (3) an act or
omission of the defendant which constitutes a violation of the X borrowed P10M from Y. Y required X to post a collateral.
plaintiff's right which defendant had the duty to respect. X executed a REM in favour of Y. X did not pay, Y filed an
3. ID.; ID.; CAUSE OF ACTION AS AN ACT action to collect a sum of money and an action to foreclose the
VIOLATIVE OF VARIOUS RIGHTS. In the last analysis, REM. Is there a splitting a single cause of action? You cannot
a cause of action is basically an act or an omission or several file an action to foreclose REM while an action to collect a
acts or omissions. A single act or omission can be sum of money is pending. That is a splitting a single cause of
violative of various rights at the same time, as when the act action. The cause of action is to collect. There are two ways of
constitutes juridically a violation ofseveral separate and collecting: filing an action to collect a sum of money or
distinct legal obligations. foreclosure of REM. You cannot do both. You can only select
one. Thats swapang! You are barred.
4. ID.; ID.; ID.; EXAMPLE. For example, when a
passenger of a common carrier, such as a taxi, is injured in a JOINDER
collision thereof with another vehicle due to the 2 situations in Joinder: do not use these words in the bar exam,
negligence of the respective drivers of both vehicles. In such a this is only for our shortcut!
case, several rights of the passenger are violated, inter alia, (l ) 1. One on One Situation
the right to be safe from the negligent acts of either or both the D has the following debts in favour of C: P200K,
drivers under the law on culpa-aquiliana or quasi-delict; (2) P250K, P300K. Those are ordinary civil actions,
the right to be safe from criminal negligence of the said borrowed for different purposes and from different
drivers under the penal laws; and (3) the right to be safely occasions, unrelated to each other. They can be
conducted to his destination under the contract of carriage and joined even if unrelated. 3 causes of action can be
the law covering the same, not counting anymore the joined in one complaint even if unrelated, because
provisions of Article 33 of the Civil Code. The there is one plaintiff and one defendant.
violation of each of these rights is a cause of action in itself.
Hence, such a passenger has at least three But look at this, plaintiff wants to include unlawful
causes of action arising from the same Act. detainer case. Pwede bang isali? NO. Because
5. ID.; ID.; SPLITTING A SINGLE CAUSE OF ACTION; unlawful detainer is covered by special rules. Pwede
FILING OF SEPARATE COMPLAINTS FOR SEVERAL ba isali ang action for partition? No. Because
RELIEFS COVERED. It can happen that several acts or partition is a special civil action. Ang pwede lang
omissions may violate only one right, in which case, there isama ang ordinary civil actions. Pwede bang isama
would be only one cause of action. Again, the violation of a ang action for rescission of contract? Yes because it
single right may give rise to more than one relief. In other is an ordinary civil action not governed by special
words, for a single cause of action or violation of a right, the rules.
plaintiff may be entitled to several reliefs. It is the
filing ofseparate complaints for these several reliefs that Where are you going to file the case? RTC. Totality
constitutes splitting up of the cause of action. This is what is rule. If you add them all, more than P300K/P400K.
prohibited by the rule. Also, one of them is incapable of pecuniary
6. ID.; ID.; ID.; EFFECT OF FILING OF FIRST estimation action for rescission of contract. If one
COMPLAINT ON SUBSEQUENT ONES. Whenever a of them is cognizable in the RTC, everything will go
plaintiff has filed more than one complaint for the same to the RTC.
violation of a right, the filing of the first complaint on
any of the reliefs born of the said violation constitutes a bar to If there is one plaintiff and one defendant, all causes of action
any action on any of the other possible reliefs arising from the (ordinary civil actions) even if unrelated can be joined. Just
same violation, whether the first action is still pending, in dont include the special civil actions and those governed by
which event, the defense to the subsequent complaint would special rules.
 Dean Rianos Lecture 2014 14

2. Rumble Situation In 1988, M/V Dona Paz of Sulpicio Lines was shipwrecked.
Ex. Plaintiff v. 3 defendants- a plurality of parties. The relatives want to file a class suit but it is not proper. The
Here are the debts: D1 borrowed P200K, D2 Guimaras oil spill prodded the fishpond owners to file a class
borrowed P250K, D3 borrowed P300K. All debts are suit but again it is not proper.
unrelated to each other.
How many causes of action? 3 A class suit arises when the following elements concur:
Is it possible for P to join those causes of action? 1. when there are several and numerous persons
When it is a rumble situation, they cannot be joined involved.
as they are products of different transactions. The 2. A common or general interest in the subject matter
only option for P is to file a separate action for each.
No joinder. In order to join them, there must be clear The issue is not a common or general interest. It must refer to
showing that the causes of actions are related to each the subject matter. Each person is a subject matter in itself.
other, bound by common occurrence, common
question of fact and/or law. 10,000 victims of human rights together filed a class suit
against the estate of Marcos. Each plaintiff of the 10,000 is a
Example: a promissory note contains: We promise to pay Mr. subject matter in itself. My human right is mine. I have no
Torres P2M on April 2015. interest in yours. There is no common or general interest. But
T v. A = P500K there is a common interest on the issues on the case. True. But
T v. B = P500K the definition is on the subject matter not on the issue. So, the
T v. C = P500K suit was filed in US not in the Phil. US has unique law on torts
T v. D = P500K that any human right violations committed anywhere is
cognizable by US courts. Tingnan mong America, Polisya ng
There was no stipulation indicating solidarity. Obligation is buong mundo, pakialamero. Their class suit is not the common
presumed to be joint. So there are four causes of action. The or general interest on the subject matter but the common or
debts are divided into as many debtors as to the creditors. Joint general interest on the issues. Yes, we copied our Rules from
obligation means that from the point of view from the debtor, US but parang magmukhang original, we changed the word
KKB, kanya-kanyang bayan. From the point of view of the issue with the word subject matter. @.@ kaya mahirap
creditor, KKS, kanya-kanyang singil. Kapag solidary naman ang class suit sa Pinas.
ang obligation, one for all and all for one. (911 method of
studying ;)) A plane crashed in the bundok of Agusan. The relatives of the
dead passengers filed a class suit against the airline. The suit
In the case, there are 4 debts, 4 causes of action. T can file an will not prosper as there is no class suit. Your interest is only
action against A alone but he can only recover P500K. And so to your own dead relative. If lola ko yung namatay, dun lang
with the other debtors but only to the extent of their separate yung interest ko sa lola ko. Huwag ka nang maki-lola sakin,
obligations. Now, T can file a single complaint against all of may lola ka na eh. Hindi tayo pwede mag-sama2x. Remedy
those debtors. There is joinder of causes of action because here is joinder of causes of action as they are bound by the
they are joined by a single transaction when they signed a same accident.
single promissory note. ^_^
May isang baryo with a factory there that emits toxic fumes.
Another situation. 20 pax hired a private bus, not a common Nagkasakit ang 400 residents there. They all want to file a
carrier. The driver-owner of that bus sings with feelings when class suit against the factory. No class suit! The reason is that
he drives and closes his eyes when he hits very high notes. even if marami tayong nagkasakit, walang common or general
They fell to a cliff. All of the passengers were injured but all interest on the subject matter. Sakit ko, yan lang ang interest
survived coz they belong to a different breed of grass - ko. Sakit mo, sakit mo yan. Bahala ka sa sakit mo! Ubo ko
masasamang damo. Now they want to file an action for breach hindi mo ubo.
of contract against the owner-driver. How many suits could
possibly be filed? How many causes of action? 20. But they Consolidated corporation case. A large tract of land is divided
can file a single complaint against the driver because the into small lots, each is 100 sq.m. occupied by a family. There
plaintiffs are bound by the same accident. They can join are 5000 little squares with 100 sq.m. each. So this land is
together under one complaint. But suppose after one day, that 500,000 sq.m. 50 hectares. 5000 families. One day they woke
same driver injured another 10 passengers, can these 10 up and realized that the land grabber has succeeded in having
passengers join with those first 20 passengers? No, as they are those lots titled in its name. So the 5000 families bonded
not bound by the same accident/transaction. together to file a class suit to recover the ownership of the
land. They are numerous enough but there is no class suit as
We are going to rearrange your rules ^_^ there are causes of there is no common or general interest on the subject matter.
action found under the rule on parties. An action based on a Each family has an interest only on the land which it occupied
class suit. Do you remember that stampede in the Wowowee. not on the land of others.
72 old women died. The relatives of those Lolas asked
whether a class suit can be filed against ABS-CBN. Answer is When my interest can be separated from yours, there is no
No. class suit no matter how many we are.
 Dean Rianos Lecture 2014 15

1. REMEDIAL LAW; CRIMINAL PROCEDURE; LIBEL; REFERRING TO AN OFFICIAL ACT PERFORMED BY

VICTIM MUST BE IDENTIFIABLE. In the case of AN ELECTIVE PUBLIC OFFICIAL, WITHIN THE
Corpus vs. Cuaderno, Sr. (16 SCRA 807) this Court ruled that REALMS OF THE PRIVILEGE. The disputed portion of
"in order to maintain a libel suit, it is essential that the victim the article which refers to plaintiff Sola and which was
be identifiable (People vs. Monton, L-16772, November 30, claimed to be libelous never singled out plaintiff Sola as a
1962), although it is not necessary that he be named (19 sugar planter. The news report merely stated that the victim
A.L.R. 116)." In an earlier case, this Court declared that ". . . had been arrested by members of a special police unit brought
defamatory matter which does not reveal the identity of the into the area by Pablo Sola, the mayor of Kabankalan. Hence,
person whom the imputation is case, affords no ground of the report, referring as it does not an official act performed by
action unless it be shown that the readers of the libel could an elective public official, is within the realm of privilege and
have identified the personality of the individual defamed." protected by the constitutional guarantees of free speech and
(Kunkle vs. Cablenews-American and Lyons, 42 Phil. 760). press. The article further stated that Sola and the commander
This principle has been recognized to be of vital importance, of the special police unit were arrested. The Court takes
especially where a group or class of persons, as in the case at judicial notice of this fact. (People vs. Sola, 103 SCRA 393).
bar, claim to have been defamed, for it is evident that the 5. REMEDIAL LAW; CIVIL PROCEDURE; APPEALS; AN
larger the collectivity , the more difficult it is for the ORDER DENYING A MOTION TO DISMISS, MERELY
individual member to prove that the defamatory remarks apply INTERLOCUTORY AND CANNOT BE THE SUBJECT OF
to him. (Cf. 70 ALR 2d. 1384). AN APPEAL. As a general rule, an order denying a motion
2. ID.; ID.; ID.; DEFAMATORY REMARKS DIRECTED to dismiss is merely interlocutory and cannot be subject of
AT A CLASS OR GROUP OF PERSONS MUST BE SO appeal until final judgment or order is rendered. (Sec. 2 of
SWEEPING OR ALL-EMBRACING AS TO APPLY TO Rule 41). The ordinary procedure to be followed in such
EVERY INDIVIDUAL IN THAT GROUP OR CLASS. In a case is to file an answer, go to trial and if the decision is
the case of Uy Tioco vs. Yang Shu Wen, 32 Phil. 624, this adverse, reiterate the issue on appeal from the final judgment.
Court held as follows: "Defamatory remarks directed at The same rule applies to an order denying a motion to quash,
a class or group of persons in general language only, are not except that instead of filing an answer a plea is entered and no
actionable by individuals composing the class or group unless appeal lies from a judgment of acquittal.
the statements are sweeping; and it is very probable that even 6. ID.; ID.; ID.; ID.; EXCEPTIONS. This general rule is
then no action would lie where the body is composed of so subject to certain exceptions. If the court, in denying the
large a number of persons that common sense would tell those motion to dismiss or motion to quash, acts without or in
to whom the publication was made that there was room for excess of jurisdiction or with grave abuse of discretion, then
persons connected with the body to pursue an upright and law certiorari or prohibition lies. The reason is that it would be
abiding course and that it would be unreasonable and absurd unfair to require the defendant or accused to undergo the
to condemn all because of the actions of a part." It is evident ordeal and expense of a trial if the court has no jurisdiction
from the above ruling that where the defamation is alleged to over the subject matter or offense, or is not the court of proper
have been directed at a group or class, it is essential that the venue, or if the denial of the motion to dismiss or motion to
statement must be so sweeping or all-embracing as to apply to quash is made with grave abuse of discretion or a whimsical
every individual in that group or class, or sufficiently specific and capricious exercise of judgment. In such cases, the
so that each individual in the class or group can prove that the ordinary remedy of appeal cannot be plain and adequate.
defamatory statement specifically pointed to him, so that he
can bring the action separately, if need be. ||| (Newsweek, Inc. v. Intermediate Appellate Court, G.R. No.
L-63559, May 30, 1986)
3. ID.; ID.; ID.; CLASS SUIT; NOT A CASE OF;
PLAINTIFFS DO NOT HAVE A COMMON INTEREST IN REMEDIAL LAW; PLEADINGS; CAUSE OF ACTION,
THE SUBJECT MATTER OF CONTROVERSY. We note DEFINED; CASE AT BAR. the right of the petitioners
that private respondents filed a "class suit" in representation of (and all those they represent) to a balanced and healthful
all the 8,500 sugarcane planters of Negros Occidental. ecology is as clear as the DENR's duty under its mandate
Petitioner disagrees and argues that the absence of any and by virtue of its powers and functions under E.O. No.
actionable basis in the complaint cannot be cured by the filing 192 and the Administrative Code of 1987 to protect and
of a class suit on behalf of the aforesaid sugar planters. We advance the said right. A denial or violation of that right by
find petitioner's contention meritorious. The case at bar is not the other who has the correlative duty or obligation to respect
a class suit. It is not a case where one or more may sue for the or protect the same gives rise to a cause of action. Petitioners
benefit of all (Mathay vs.Consolidated Band and Trust maintain that the granting of the TLAs, which they claim was
Company, 58 SCRA 559) or where the representation done with grave abuse of discretion, violated their right to a
of class interest affected by the judgment or decree is balanced and healthful ecology; hence, the full protection
indispensable to make each member of the class an actual thereof requires that no further TLAs should be renewed or
party (Borlaza vs. Polistico, 47 Phil. 348). We have here granted. A cause of action is defined as: ". . . an act or
a case where each of the plaintiff has a separate and distinct omission of one party in violation of the legal right or rights of
reputation in the community. They do not have a common or the other; and its essential elements are legal right of the
general interest in the subject matter of the controversy. plaintiff, correlative obligation of the defendant, and act or
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; omission of the defendant in violation of said legal right."
FREEDOM OF SPEECH AND PRESS; REPORT (Marao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947];
 Dean Rianos Lecture 2014 16

Community Investment and Finance Corp. vs. Garcia, 88 Phil. The court shall forthwith order said legal representative or
215 [1951]; Remitere vs. vda. de Yulo, 16 SCRA 251 [1966]; representatives to appear and be substituted within a
Caseas vs. Rosales, 19 SCRA 462 [1967]; period of thirty (30) days from notice.
Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; If no legal representative is named by the counsel for the
Madrona vs. Rosal, 204 SCRA 1 [1991]. deceased party, or if the one so named shall fail to appear
ID.; ID.; MOTION TO DISMISS; LACK OF CAUSE OF within the specified period, the court may order the opposing
ACTION, AS A GROUND; RULE; CASE AT BAR. It is party, within a specified time, to procure the
settled in this jurisdiction that in a motion to dismiss based on appointment of an executor or administrator for the
the ground that the complaint fails to state a cause of action, estate of the deceased and the latter shall immediately appear
the question submitted to the court for resolution involves the for and on behalf of the deceased. The court charges in
sufficiency of the facts alleged in the complaint itself. No procuring such appointment, if defrayed by the opposing
other matter should be considered; furthermore, the truth or party, may be recovered as costs. (16a, 17a)
falsity of the said allegations is beside the point for the truth
thereof is deemed hypothetically admitted. The only issue to SECTION 20. Action on Contractual Money Claims. When
be resolved in such a case is: admitting such alleged facts to the action is for recovery of money arising from contract,
be true, may the court render a valid judgment in accordance express or implied, and the defendant dies before the
with the prayer in the complaint? In Militante vs. entry of final judgment in the court in which the action was
Edrosolano, this Court laid down the rule that the judiciary pending at the time of such death, it shall not be dismissed but
should "exercise the utmost care and circumspection in shall instead be allowed to continue until the entry of final
passing upon a motion to dismiss on the ground of the absence judgment. A favorable judgment obtained by the plaintiff
thereof [cause of action] lest, by its failure to manifest a therein shall be enforced in the manner especially provided in
correct appreciation of the facts alleged and deemed these Rules for prosecuting claims against the estate of a
hypothetically admitted, what the law grants or recognizes is deceased person. (21a)
effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute." After a careful
examination of the petitioners' complaint, We find the Example: an action for a sum of money, defendant-debtor
statements under the introductory affirmative allegations, as dies. The court was notified by the counsel that the defendant
well as the specific averments under the subheading CAUSE was already dead. The court will ask itself what happens to the
OF ACTION, to be adequate enough to show, prima facie, the case. The case has to continue until the end of the judgment
claimed violation of their rights. On the basis thereof, they because a money debt is not extinguished by the death of the
may thus be granted, wholly or partly, the reliefs prayed for. debtor. It has to be pursued until the entry of the judgment.
||| (Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993)
Plaintiff won but defendant died. Solution? The court will
order the substitution of the parties. Can be the heirs, executor
A REAL PARTY IN INTEREST- A real party in interest is or administrator.
the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every Now, plaintiff won, defendants substitute did not appeal. So
action must be prosecuted or defended in the name of the real plaintiff files a motion for the issuance of the writ of execution
party in interest. of judgment. The court cannot grant this. The judgment must
be presented as a claim against the estate. Rule 86. Special
Indispensable party Parties in interest without whom no final proceedings will follow. The remedy is not a writ of execution
determination can be had of an action shall be joined either as but a claim against the estate.
plaintiffs or defendants.

PARTS OF THE COMPLAINT

SECTION 16. Death of Party; Duty of Counsel. Whenever
a party to a pending action dies, and the claim is not thereby Certification against forum-shopping
extinguished, it shall be the duty of his counsel to inform Caption, Body, Relief/Prayer
the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal What determines the nature of the cause of action and the
representative or representatives. Failure of counsel to comply jurisdiction of the court? Material allegations of the complaint
with this duty shall be a ground for disciplinary action.
Rule 7, SECTION 5. Certification Against Forum Shopping.
The heirs of the deceased may be allowed to be substituted for The plaintiff or principal party shall certify under oath in
the deceased, without requiring the appointment of an the complaint or other initiatory pleading asserting a claim for
executor or administrator and the court may appoint a relief, or in a sworn certification annexed thereto and
guardian ad litem for the minor heirs. simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to
 Dean Rianos Lecture 2014 17

the best of his knowledge, no such other action or claim is When you file a complaint, should it be verified, meaning
pending therein; (b) if there is such other pending action or under oath? Generally No unless required by law or the rules.
claim, a complete statement of the present status thereof; and For example, you are going to file an action for unlawful
(c) if he should thereafter learn that the same or similar action detainer or forcible entry. All the pleadings in UD/FE should
or claim has been filed or is pending, he shall report that fact be verified. If you are going to file a small claims case all the
within five (5) days therefrom to the court wherein his forms must be verified. All special civil actions with latin
aforesaid complaint or initiatory pleading has been filed. names including prohibition must be verified.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other An unverified pleading required by law to be verified can still
initiatory pleading but shall be cause for the dismissal of the be cured as it is merely a formal defect. The absence of
case without prejudice, unless otherwise provided, upon verification is not a jurisdictional defect. If you are going to be
motion and after hearing. The submission of a false asked when a counsel signs his pleadings, what is the
certification or non-compliance with any of the undertakings significance of the signature of the counsel? Rule 7. It is a
therein shall constitute indirect contempt of court, without certification that he has read the pleadings and that the
prejudice to the corresponding administrative and criminal allegations therein are true and correct of his knowledge and
actions. If the acts of the party or his counsel clearly constitute belief.
willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall So the complaint has already been filed. As to prescriptions, it
constitute direct contempt, as well as a cause for will not be prescribed, the court acquires jurisdiction over the
administrative sanctions. (n) cdphil plaintiff. After filing the complaint, you may have notice that
there are some defects in your allegation. So you can amend it.

- The one who certifies must be the plaintiff or the

principal party. It is not the counsel/lawyer. Hte only AMENDMENT
instance when the lawyer can sign and certify is when he
is equipped with SPA. But that is not found in the Code, As a Matter of Right
it is found in jurisprudence.
- Amendment made before the other party has served his
Sample Problem: A certificate of non-forum shopping was not responsive pleading
attached in the complaint. When the court noticed it, the court - P filed a complaint against D. P realized that he made
notified the plaintiff. The plaintiff said that he wanted to mistakes in the allegations of his complaints. And D has
amend the complaint since there was yet no answer. The court not filed and served his answer. P does not need a leave
granted it to include the said certification. Can the court of court to amend the complaint.
validly do that? Be careful with the 2nd paragraph of Rule 7, - If the amendment is a matter of right and the court rejects
Sec. 5. The court is not correct. It is not curable by a mere it, the court cannot do so because again it is a matter of
amendment. It is in fact a ground for the dismissal of the case. right. If it does, P can avail of the special civil action of
mandamus for the court to accept the pleading.
Can the court motu proprio dismiss the case for failure to - It cannot be denied.
comply with the certification of forum shopping? No. It must - Subject matter of amendment: ANY even to correct an
be upon motion and upon hearing. Thats codal! error of jurisdiction.
- Example: P filed an action of sum of money against D.
What are the contents of the certificate of forum shopping? But in the complaint, P failed to state that the debt has
Refer to first paragraph of Rule 7, Sec. 5. matured, that he demanded payment. There is here a
failure to state a cause of action. When P realized it, D
If the court dismisses the complaint for failure to comply with has not yet filed an answer. P can amend his complaint
the certification of non-forum shopping, can the plaintiff re- even without leave of court as it is a matter of right.
file it as a rule? Yes because the dismissal is without prejudice Suppose D was very quick and filed an MTD, P can still
unless otherwise provided. amend his complaint as a matter of right since an MTD is
not a responsive pleading.
Suppose you submitted a certification of forum shopping and - Suppose the court already gave an order of dismissal for
it was false. What is the effect? You can be subjected to failure to state a cause of action. P can still amend the
indirect contempt. Administrative sanction. Under that complaint as a matter of right because the order of
provision there is no dismissal. There is a criminal sanction dismissal is not yet final. P can still make a move within
because of the false certification. 15 days before finality of the decision.
- P filed an action to collect P200K against D. P filed it in
Suppose there is a wilful and deliberate forum shopping, there RTC. Defect in jurisdiction. D filed an MTD on the lack
will be summary dismissal (so no need of hearing) with of jurisdiction over the subject matter. P simply filed an
prejudice and shall constitute direct contempt, as well as a amendment to the complaint and added P250K, so it
cause for administrative sanctions. No criminal sanction. became P450K. P can do that to correct an error of
 Dean Rianos Lecture 2014 18

jurisdiction as it is a matter of right. There is yet no the complaint dismissed. P filed a Notice of Dismissal
responsive pleading. again to the court. But when P went home he was hit
- What are you going to do with the pending MTD after again by D. P again went to the court to re-file it. But P
the amendment has been made? You deny it. It is moot cannot do so on the basis of Two-Dismissal Rule. P can
and academic as there is already an amendment to the only dismiss it twice. The 2nd dismissal already operates
complaint as an adjudication as to the merits.
- In allowing the amendment, the court did not commit a - This was asked in the Bar already in a different way. A
grave abuse of discretion amounting to lack of complaint was filed. D filed an answer. If you already
jurisdiction as the court has no option but to accept it, filed an answer I cannot simply file a Notice of
being a matter of right. Dismissal. I must now file an MTD and the court decides
- If I were the defendant, I will not file an MTD. Instead, I on it. But this is an Answer with a counterclaim. When I
would file an Answer and use lack of jurisdiction as an filed the MTD, the court dismissed the complaint. Is the
affirmative defense. To prevent the amendment as a counterclaim also dismissed? The new answer does not
matter of right. anymore make any distinction between a compulsory and
a permissive counterclaim. The rule now is in Rule 17,

As a Matter of Discretion SECTION 2. Dismissal Upon Motion of Plaintiff. Except

- D filed an answer with an affirmative defense of lack of as provided in the preceding section, a complaint shall not be
jurisdiction over the subject matter. Then P realized an dismissed at the plaintiff's instance save upon
error in his allegations as to the jurisdiction. He could not approval of the court and upon such terms and conditions as
amend his complaint now as a matter of right. P has to the court deems proper. If a counterclaim has been pleaded by
file a motion for leave to amend the complaint because it a defendant prior to the service upon him of the plaintiff's
is already discretionary. motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim in a
- And the court said in the interest of justice I will allow
separate action unless within fifteen (15) days from
the amendment in order to thresh out the merits of the
notice of the motion he manifests his preference to have his
case. Is the court correct? No. This time the court is now
counterclaim resolved in the same action. Unless otherwise
acting using its discretion, acting over the complaint over
which it has no jurisdiction. It cannot allow an specified in the order, a dismissal under this paragraph shall
amendment of a complaint over which it has no be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
jurisdiction. The only option is to dismiss. You can only
allow amendment as to jurisdiction when the amendment - The dismissal is limited to the complaint. The
is a matter of right. But when the amendment is a matter counterclaim, whatever it is, will not automatically be
of discretion, the court has no jurisdiction to allow the dismissed. The defendant may proceed with it.
amendment because it would then be acting on a - The rule is the dismissal of the complaint does not
complaint over which it has no jurisdiction. The remedy operate as the dismissal of the counterclaim.
of the plaintiff is to refile it. - See: (no prejudice to the counterclaim) Sec. 2 of Rule 17,
- In correcting errors on jurisdiction, when the discretion Sec. 3 of Rule 17, Sec. 6 last paragraph of Rule 16
of the court is necessary the court can only act on a
complaint over which it has jurisdiction. Rule 17, SECTION 3. Dismissal Due to Fault of Plaintiff .
If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the
Issues not found in the pleadings but which are tried with the complaint, or to prosecute his action for an unreasonable
consent of the parties are deemed as if included in the length of time, or to comply with these Rules or any
pleadings. In relation to another topic, it is possible for the order of the court, the complaint may be dismissed upon
PLAINTIFF TO DISMISS ITS OWN COMPLAINT. Just like motion of the defendant or upon the court's own motion,
in amendments, dismissal of own complaint is a matter of without prejudice to the right of the defendant to prosecute his
right before the filing and service of the responsive pleading. counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court
- Plaintiff need not file an MTD. He only need to file with
the court a Notice of Dismissal under Rule 17. It is the Rule 16, SECTION 6. Pleading Grounds as Affirmative
notice of dismissal that operates the dismissal of the case. Defenses. If no motion to dismiss has been filed, any of the
The court need not even have to order the dismissal. The grounds for dismissal provided for in this Rule may be
court will only issue an Order confirming the dismissal, pleaded as an affirmative defense in the answer and, in the
not an order of dismissal. discretion of the court, a preliminary hearing may be had
- D came to P and instead of thanking P for dismissing the thereon as if a motion to dismiss had been filed. (5a)
case D hit P in the face. So P went back to the court to
The dismissal of the complaint under this section shall be
refile it under Rule 17. It can be since it was a dismissal
without prejudice to the prosecution in the same or separate
without prejudice unless the notice says the dismissal
action of a counterclaim pleaded in the answer.
was with prejudice. When P refiled it, D pleaded to have
 Dean Rianos Lecture 2014 19

prescription, failure to state a cause of action, this is a

- When a complaint is dismissed, the counterclaim filed voluntary appearance because not one of the grounds
will not be dismissed. It will be dismissed if the questions the jurisdiction of the court over the defendant.
defendant himself will dismiss it.
x x x The inclusion in a motion to dismiss of other grounds
We already mentioned the motu proprio grounds for dismissal: aside from lack of jurisdiction over the person of the
lack of jurisdiction over the subject matter, res judicata, litis defendant shall not be deemed a voluntary appearance.
pendentia, prescription and Section 3 of Rule 17 because of - In order to avoid voluntary appearance, you have to add
the fault of the plaintiff: this, lack of jurisdiction over the person of the
the plaintiff fails to appear on the date of the defendant even if you add any other grounds.
presentation of his evidence in chief on the
complaint, or Now, defendant received the summons and went to court to
failure to prosecute his action for an unreasonable file MTD questioning the jurisdiction of the court over his
length of time, or person. There is no voluntary appearance.
failure to comply with these Rules or any
order of the court, D filed an MTD on the ground of lack of jurisdiction over the
subject matter. This is a voluntary appearance due to the
Now, the complaint has been filed, it has been amended. The absence of the ground of lack of jurisdiction over the person of
defendant did not file an MTD or the plaintiff did not dismiss the defendant.
his complaint. Lets now go to the role of the clerk of court
to issue SUMMONS. Normally the defendant does not make any voluntary
appearance. Normally he hides from the sheriff or the process
Why is Summons necessary? To comply with the due process server. So if no voluntary appearance, you go to the second
requirement of the constitution. When the action is in one- the valid service of SUMMONS.
personam, to acquire jurisdiction over the person of the
defendant. Remember that our defendant is a residentin the Philippines.
When you talk about a valid service of summons there is a
How does the court acquire jurisdiction over the person of the priority service. Rule 14. SECTION 6. Service in Person on
defendant? This presupposes that the action is in personam Defendant. Whenever practicable, the summons shall be
because an action in rem or quasi-in rem does not require served by handing a copy thereof to the defendant in person,
jurisdiction over the defendant but on the res only. or, if he refuses to receive and sign for it, by tendering it to
him.
You have to make a distinction between a RESIDENT
defendant (RD) and a NON-RESIDENT defendant (NRD).
Do not call it personal service. It must be called service in
person. The old name was personal service but the new
When are the summons issued? Upon the filing of the
name is service in person in order to avoid confusion.
complaint and the payment of the requisite legal fees.
Personal service is not found in Rule 14 but rather in Rule
13 (Filing and Service of Pleadings, Judgments and Other
The defendant is a resident of the Philippines. Not citizenship!
Papers) of SECTION 6. Personal Service.
Just residence. Even a foreigner can be considered a
Philippine Resident.
How do you make service in person? You go to the defendant,
Another important topic is on Rule 14, SECTION find him in person and give the summons, copy of the
20. Voluntary Appearance. The defendant's voluntary complaint, etc. to him. Suppose he refuse to accept it or
appearance in the action shall be equivalent to receives it but refuses to sign, sheriff must tender it to him.
service of summons. The inclusion in a motion to Tendering is a part of service in person. Kunin man nya o
dismiss of other grounds aside from lack of jurisdiction over hindi, the service is complete. The court acquires jurisdiction
the person of the defendant shall not be deemed a voluntary over the person of the defendant. Sheriff must write the
appearance. (23a) circumstances of the service. There is a rebuttable
presumption of regularity of the performance of official duties.
Rule 131, Sec. 3m.
- voluntary appearance does not mean, hey your honor I
am here, how are you doing?. It is illustrated when D The sheriff is supposed to exert efforts to serve the defendants
filed an MTD on the ground of prescription and lack of the summons in person. Such efforts must be written on his
jurisdiction over the subject matter. That is a voluntary return and he must exert honest to goodness efforts in trying to
appearance because I did not include in my motion lack locate the defendant. Pagpunta nya sa house ng defendant, di
of jurisdiction over the person of the defendant. Or I filed pwede basta iwanan sa wife or kids. MTD for lack of
an answer with affirmative defences and I filed a jurisdiction over the person of the defendant because the mode
counterclaim. An appearance in court which questions of service is defective. So, perwisyo kay plaintiff.
the jurisdiction of the court over the defendant is not a
voluntary appearance. Example, you filed an MTD (you
have no summons, here, ok?) on the ground of
 Dean Rianos Lecture 2014 20

"Several attempts" means at least three (3) tries, preferably on also effected out of the Philippines, as under the preceding
at least two different dates. In addition, the sheriff must cite section.
why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or Example: I borrowed P5M from Rocky. He demanded
accepted.||| (Manotoc v. Court of Appeals, G.R. No. 130974, payment from me, I did not pay. So he filed a suit against me.
August 16, 2006) Sheriff went to my known address but he found that my house
was abandoned. The neighbours cannot tell where I am. Can
But if after those efforts he could not be found within the Rocky ask leave of court to have the summons by publication?
reasonable time only then can you go to the next mode of Yes. Because my whereabouts are unknown.
Substituted service. This is an exception to Sec. 6. But the
return of the sheriff must indicate the efforts undertaken to Car A rear ended Car B. B was unconscious, A is nowhere to
find the defendant. be found. He can file a case against an unknown defendant.
Rule 14, Sec. 14.
Problem: In order to serve the summons the sheriff went to the
house of the defendant only to find that the latter was not TRANSCRIPT 4
there. The wife of the defendant instead signed it in his behalf. How to acquire jurisdiction over the person of the Resident
Did the court acquire jurisdiction? The court did not acquire Defendant?
jurisdiction over the defendant since there was no honest
efforts to locate the defendant. The rule is if your action is an action in personam, you cannot
use summons by publication as it can only be acceptable in
Rule 14, SECTION 7. Substituted Service. If, for justifiable actions in rem or quasi in rem. The exceptions are in Sec. 14
causes, the defendant cannot be served within a reasonable of Rule 14 and Sec. 16 of Rule 14. This refers to the
time as provided in the preceding section, service may be Philippine Resident who is temporarily outside the
effected (a) by leaving copies of the summons at the Philippines. But the word summons by publicaiton is not
defendant's residence with some person of suitable age and found in Sec. 16. Sec. 16 makes reference to the immediately
discretion then residing therein, or (b) by leaving the copies at preceeding section which is Sec. 15 and Sec. 15 mentions as
defendant's office or regular place of business with some one of the summons the summons by publication.
competent person in charge thereof.
By the way, Sec. 15 is not used in actions in personam. It is
There must be a strict compliance with the service of Sec. 16 that is used in actions in personam because it used the
summons. If the service of summons is invalid, D must file words any actions. Also, Sec. 14 used the same words any
MTD for lack of jurisdiction over the person of defendant. If actions. For example, I am a Philippine Resident and I caused
dismissed, it can still be re-filed. damage to another person. When he filed a case against me, I
was abroad. He could not find me in my residence and I could
Do not use summons by publication. Remember! This is a not be served in person. Can I be served with summons by
resident defendant, an action in personam. publication? Yes. Temporarily abroad. But summons by
publication is not the only way of serving summons for
General Rule: Summons by publication will not serve to residents temporarily abroad. The sheriff can use substituted
acquire jurisdiction over a a resident defendant, an action in service of summons because I am a resident in the Philippines.
personam.
Example: A promissory note was executed. The due date was
In an action in personam, dedicate that to you. General rule is Dec 5 1998. But on Nov 10, 1998, an action was filed to
to serve it in person. Except if cannot be located then collect a sum of money. Summons was sent and served upon
substituted service. D on Dec 7, 1998. Service in person. What is the effect of
In an action in rem, to whom it may concern. To the whole these summons? There is here a failure to state a cause of
world. action. These summons have no effect on the jurisdiction of
the defendant as there is actually no case. This will be a
Exception: Rule 14, SECTION 14. Service Upon Defendant subject to an MTD.
Whose Identity or Whereabouts are Unknown. In any
action where the defendant is designated as an unknown Now if summons was sent on Dec 7 1998, did it validate the
owner, or the like, or whenever his whereabouts are unknown premature filing of the complaint? No. Because the action was
and cannot be ascertained by diligent inquiry, service may, by prematurely filed.
leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for On Dec 7 when the summons was sent and the due date of the
such time as the court may order. PN was Dec 5, can he make the proper amendments in order
to correct the defect? No, as there is nothing to amend. You
Rule 14, SECTION 16. Residents Temporarily Out of the can only amend something that has already a cause of action.
Philippines. When any action is commenced against a This is Bar 1999.
defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be
NON-RESIDENT DEFENDANT
 Dean Rianos Lecture 2014 21

She came to the Philippines as she was fascinated about the the property of the defendant has been attached within the
Mayon Volcano, a perfect cone, and the Chocolate Hills of Philippines.
Bohol. She is a tourist, not a resident of the Philippines. She
met me and asked for money as she ran out of money. I lent
her money and she executed a promissory note. I demanded In these instances, extraterritorial service of summons may be
payment upon due date but she refused. I sued her. But when effected under any of three modes: (1) by personal service
the sheriff went to manila, her residence, she has already out of the country, with leave of court; (2) by publication and
flown back to Brazil. The court needs to acquire the sending a copy of the summons and order of the court by
jurisdiction over her as the action is in personam. Can the registered mail to the defendant's last known address, also
court acquire jurisdiction? with leave of court; or (3) by any other means the judge may
1. Voluntary appearance consider sufficient.
2. Valid service of summons Applying the foregoing rule, the trial court required
Service in person within the Philippines. There is no extraterritorial service of summons to be effected on
substituted service as this presupposes that the Margarita in the following manner:
defendant has a residence or regular office in the . . ., service of Summons by
Philippines. way of publication in a
newspaper of general circulation once a
But she already has left. There was no voluntary appearance week for three (3) consecutive weeks, at
and she cannot be served with summons in person as she is the same time, furnishing respondent
not in the Philippines. The court cannot acquire jurisdiction. copy of this Order as well as the
There can be no valid service of summons by publication corresponding Summons and copy of the
using extraterritorial service of summons because Sec. 15 petition at her given address at No. 96
does not apply to actions in personam. What am I going to Mulberry Lane, Atherton, California,
do? I shall apply for the issuance of preliminary attachment. U.S.A., thru the Department of Foreign
The case now will affect her properties in the Philippines. Affairs, all at the
Sec. 15 comes in. I will attach her property to convert the expense of petitioner. (Emphasis ours)
action in personam into an action quasi-in rem. If it is now
an action quasi-in rem it will now be a case affecting the The trial court's prescribed mode of extraterritorial service
defendants property. The court will now have jurisdiction does not fall under the first or second mode
over the Res. The case can go on even on her absence. The specified in Section 15 of Rule 14, but under the third
case is already a quasi-in rem action. mode. This refers to " any other means that the judge may
consider sufficient."
Now, I won the case, the property will be sold on execution. The Process Server's Return of 15 July 1991 shows that the
But the highest bidder only bid P600K. Her utang is P700K. summons addressed to Margarita together with the complaint
So nakuha ko na yung P600K. Can I singil her the deficiency? and its annexes were sent by mail to the
No. It is already an in personam action. The court cannot order Department of Foreign Affairs with
her to pay as it has no jurisdiction over the person. You still acknowledgment of receipt. The Process Server's
have to pay another case. certificate of service of summons is prima facie evidence
of the facts as set out in the certificate. Before proceeding to
But if yung tumakas is a resident, you dont need a writ of declare the marriage between Margarita and Abelardo null and
attachment as the court can have jurisdiction over the person void, the trial court statedin its Decision dated 8 November
through a substituted service or summons by publication. 1991 that "compliance with the jurisdictional requirements
hav(e) (sic) been duly established." We hold that delivery to
Sec. 15 in rem and quasi-in rem for a non-resident outside the Department of Foreign Affairs was sufficient compliance
the Phil. Not for an action in personam. with the rule. After all, this is exactly what the trial court
required and considered as sufficient to effect
An action for the declaration of nullity of marriage is not in service of summons under the third mode of extraterritorial
personam. It is an action in rem because it involves the status service pursuant to Section 15 of Rule 14.
of the plaintiff under sec. 15. It is not directed against the wife
who is only a nominal party. It is directed agasint the status, ||| (Romualdez-Licaros v. Licaros, G.R. No. 150656, April 29,
an in rem. 2003)

Petitioner Banco do Brasil takes exception to the appellate

Under Section 15 of Rule 14, a defendant who is a non- courts declaration that the suit below is in rem, not in
resident and is not found in the country may be served with personam, thus, service of summons by publication was
summons by extraterritorial servicein four instances: (1) when sufficient for the court to acquire jurisdiction over the person
the action affects the personal status of the plaintiff; (2) when of petitioner Banco do Brasil, and thereby liable to private
the action relates to, or the subject of which is property within respondent Cesar Urbino for damages claimed, amounting to
the Philippines, in which the defendant has or claims a lien or $300,000.00. Petitioner further challenges the finding that the
interest, actual or contingent; (3) when the relief demanded February 18, 1991 decision of the trial court was already final
consists, wholly or in part, in excluding the defendant from and thus, cannot be modified or assailed.
any interest in property located in the Philippines; or (4) when
 Dean Rianos Lecture 2014 22

subject vessel M/V Star Ace. Thus, it can be said that private
Petitioner avers that the action filed against it is an action for respondent initially sought only to exclude petitioner from
damages, as such it is an action in personam which requires claiming interest over the subject vessel M/V Star Ace.
personal service of summons be made upon it for the court to However, private respondent testified during the presentation
acquire jurisdiction over it. However, inasmuch as of evidence that, for being a nuisance defendant, petitioner
petitioner Banco do Brasil is a non-resident caused irreparable damage to private respondent in the amount
foreign corporation, not engaged in business in the of $300,000.00. Therefore, while the action is in rem, by
Philippines, unless it has property located in the Philippines claiming damages, the relief demanded went beyond
which may be attached to convert the action into an action in theres and sought a relief totally alien to the action.
rem, the court cannot acquire jurisdiction over it in respect of It must be stressed that any relief granted in rem or quasi in
an action in personam. rem actions must be confined to the res, and the court cannot
lawfully render a personal judgment against the
defendant. Clearly, the publication of summons effected by
The petition bears merit, thus the same should be as it is private respondent is invalid and ineffective for the trial court
hereby granted. to acquire jurisdiction over the person of petitioner, since by
seeking to recover damages from petitioner for the alleged
First. When the defendant is a nonresident and he is not found commission of an injury to his person or property caused by
in the country, summons may be served extraterritorially in petitioners being a nuisance defendant, private respondents
accordance with Rule 14, Section 17 of the Rules of Court. action became in personam. Bearing in mind the in
Under this provision, there are only four (4) instances when personam nature of the action, personal or, if not possible,
extraterritorial service of summons is proper, namely: "(1) substituted service of summons on petitioner, and not
when the action affects the personal status of the plaintiffs; (2) extraterritorial service, is necessary to confer jurisdiction over
when the action relates to, or the subject of which is property, the person of petitioner and validly hold it liable to private
within the Philippines, in which the defendant claims a lien or respondent for damages. Thus, the trial court had no
interest, actual or contingent; (3) when the relief demanded in jurisdiction to award damages amounting to $300,000.00 in
such action consists, wholly or in part, in excluding the favor of private respondent and as against herein petitioner.
defendant from any interest in property located in the Second. We settled the issue of finality of the trial courts
Philippines; and (4) when the defendant non-residents decision dated February 18, 1991 in the Vlason case, wherein
property has been attached within the Philippines." In these we stated that, considering the admiralty case involved
instances, service of summons may be effected by (a) personal multiple defendants, "each defendant had a different period
service out of the country, with leave of court; (b) publication, within which to appeal, depending on the date of receipt of
also with leave of court; or (c) any other manner the court may decision." Only upon the lapse of the reglementary period to
deem sufficient. appeal, with no appeal perfected within such period, does the
decision become final and executory.
Clear from the foregoing, extrajudicial service of summons In the case of petitioner, its Motion to Vacate Judgment and to
apply only where the action is in rem, an action against the Dismiss Case was filed on April 10, 1991, only six (6) days
thing itself instead of against the person, or in an action quasi after it learned of the existence of the case upon being
in rem, where an individual is named as defendant and the informed by the Embassy of the Federative Republic
purpose of the proceeding is to subject his interest therein to of Brazil in the Philippines, on April 4, 1991, of the February
the obligation or loan burdening the property. This is so 18, 1991 decision. Thus, in the absence of any evidence on
inasmuch as, in in rem and quasi in rem actions, jurisdiction the date of receipt of decision, other than the alleged April 4,
over the person of the defendant is not a prerequisite to confer 1991 date when petitioner learned of the decision, the
jurisdiction on the court provided that the court acquires February 18, 1991 decision of the trial court cannot be said to
jurisdiction over the res. have attained finality as regards the petitioner.
||| (Banco Do Brasil v. Court of Appeals, G.R. Nos. 121576-78,
June 16, 2000)
However, where the action is in personam, one brought
against a person on the basis of his personal liability, For non-residents
jurisdiction over the person of the defendant is necessary for GR: no summons by publication
the court to validly try and decide the case. When the Exc: None. (exceptions are only available for residents)
defendant is a non-resident, personal service of summons
within the state is essential to the acquisition of jurisdiction How do you serve summons on prisoners? Thats codal! Not
over the person. This cannot be done, however, if the yet in the bar Rule 14, SECTION 9. Service Upon
defendant is not physically present in the country, and thus, Prisoners. When the defendant is a prisoner confined in a
the court cannot acquire jurisdiction over his person and jail or institution, service shall be effected upon him by the
therefore cannot validly try and decide the case against him. officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose
In the instant case, private respondents suit against petitioner
is premised on petitioners being one of the claimants of the How do you serve upon domestic corporation? Rule 14,
SECTION 11. Service Upon Domestic Private Juridical
 Dean Rianos Lecture 2014 23

Entity. When the defendant is a corporation, partnership or pleading, order, judgment, or proceeding shall include all
association organized under the laws of the Philippines with a objections then available, and all objections not so included
juridical personality, service may be made on the president, shall be deemed waived. (8a)
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel
Defenses that are not waived are found in Rule 9, SECTION
Sec. 6,7,14,15,16,20 priority provisions of Rule 14. 1. Defenses and Objections Not Pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the
Summons are served to the defendant for him to answer. But answer are deemed waived. However, when it appears from
there are instances when he cannot answer because there are the pleadings or the evidence on record that the court has no
some details which he needs before he could file an intelligent jurisdiction over the subject matter, that there is another action
answer. He files a Motion for a Bill of Particulars. You do not pending between the same parties for the same cause, or that
use this to gather the evidence which can be achieved through the action is barred by a prior judgment or by
modes of discovery or using the purpose of pre-trial. You do statute of limitations, the court shall dismiss the claim.
not use MBP to prepare for trial. It is to prepare for a
responsive pleading. The omnibus motion rule will only apply if you file a motion
to dismiss. You have to include all grounds available;
RULE 12, Bill of Particulars,SECTION 1. When Applied otherwise, deemed waived.
for; Purpose. Before responding to a pleading, a party
may move for a definite statement or for a
Illustration: You filed a motion to dismiss with the following
bill of particulars of any matter which is not averred with
available grounds: 1. failure to state a cause of action, 2.
sufficient definiteness or particularity to enable him
improper venue, 3. prescription, 4. lack of jurisdiction over the
properly to prepare his responsive pleading. If the
person of the defendant, 5. failure to comply with the statute
pleading is a reply, the motion must be filed within ten
of frauds. But you only stated the grounds #1 and #4.
(10) days from service thereof. Such motion shall point
out the defects complained of, the paragraphs wherein Your motion was denied. So you filed an answer. Can you still
they are contained, and the details desired. (1a) use improper venue, prescription and failure to comply with
statute of frauds as affirmative defense in your answer? You
cannot use #2 and #5 anymore but you can use prescription as
There is actually a MBP in criminal case. Rule 116, SECTION it is not waived. That is how to use the omnibus motion rule.
10. Bill of Particulars. Accused may, at or before
arraignment, move for a bill of particulars to enable him So, sa omnibus motion rule (OMR), if the grounds are
properly to plead and to prepare for trial. The motion shall available, use it. If you dont use it, its deemed waived. But
specify the alleged defects and the details desired.||| (1985 there are 4 defenses that are not waived: lack of jurisdiction
Rules on Criminal Procedure (Rules 110-127, Rules of Court), over subject matter, res judicata, litis pendentia and
1985 Rules on Criminal Procedure [1985]) prescription.

Motions like MTD generally are litigated because they have to Again, the OMR will not apply if you did not file an MTD
be heard. But MBP may not be a litigated motion. Rule 12, because there is nothing to be waived. What will apply is
Section 2. Action by the Court. Upon the filing of the SECTION 6. Pleading Grounds as Affirmative Defenses. If
motion, the clerk of court must immediately bring it to the no motion to dismiss has been filed, any of the grounds for
attention of the court which may either DENY or GRANT IT dismissal provided for in this Rule may be pleaded as an
OUTRIGHT, or ALLOW THE PARTIES THE affirmative defense in the answer and, in the
OPPORTUNITY TO BE HEARD. (n) discretion of the court, a preliminary hearing may be had
-So hearing of the motion is just an option to the court. It is thereon as if a motion to dismiss had been filed. (5a)
not mandatory The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
You have to follow the order of the court to submit the Bill of action of a counterclaim pleaded in the answer. (n)
Particulars within 10 days from notice. Otherwise, the court
can strike out the complaint. This is like a dismissal. In - In other words, you can use those grounds as affirmative
relation to Sec. 3 Rule 17, as you did not comply with the defences in your answer as they are not waived. You
order of the court, fault of the plaintiff. could even ask for a preliminary hearing at the discretion
So now the complaint is clearer because of the motion for bill of the court.
of particulars. You can now file the other option which is to
file a motion to dismiss. If the MTD is granted, it is possible to re-file your case
depending on the ground. For example, my case was
dismissed due to lack of jurisdiction as I filed it in the RTC
A motion to dismiss is an Omnibus Motion which is defined in when it should have been filed on MTC. Re-file it in the
Rule 15, SECTION 8. Omnibus Motion. Subject to the proper court. Same with improper venue.
provisions of Section 1 of Rule 9, a motion attacking a
 Dean Rianos Lecture 2014 24

The case was dismissed for failure to state cause of action, re- form a belief as to the truth of a material averment made in the
file it. And even if there was a pending MTD for failure to complaint, he shall so state, and this shall have the effect of a
state the cause of action, well I can simply amend the denial. (10a)
complaint as MTD is not a responsive pleading, I still have the
right to do so. How do you make a specific denial? You go over the specific
allegations, paragraph by paragraph. Make reference to the
There are grounds for dismissal where the case is over and you paragraph where the allegation was made then you say the
cannot re-file. <this has never been asked in the Bar> These defendant denies that he borrowed money from the plaintiff.
are found in Rule 16, SECTION 5. Effect of Dismissal. Or to admit a part or deny a part. Example, D specifically
Subject to the right of appeal, an order granting a motion to denies that he borrowed money from the plaintiff as in fact the
dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof money was given as a donation. Another way of denial is by
shall bar the refiling of the same action or claim. (n) saying that the defendant admits that he borrowed money but
he denies that he did not pay as in fact he already pay.
(f) That the cause of action is barred by a
prior judgment or by the But if your denial is like this, I specifically deny all the
statute of limitations; allegations in the complaint. That is not a specific denial.
(h) That the claim or demand set forth in Instead it is a general denial which are deemed admissions.
the plaintiff's pleading has been
paid, waived, abandoned, or A denial to be specific does not have to be under oath as long
otherwise extinguished; as it follows the Rule 8, Sec. 10. When should denial be
under oath?
(i) That the claim on which the action is
founded is unenforceable under 1. ACTIONABLE DOCUMENTS
the provisions of the Rule 8, SECTION 7. Action or Defense Based on Document.
statute of frauds; Whenever an action or defense is based upon a written
instrument or document, the substance of such instrument or
If those are the grounds for dismissal you can no longer refile document shall be set forth in the pleading, and the original or
the case as it has the effect on the adjudication of the merits of a copy thereof shall be attached to the pleading as an exhibit,
the case. This dismissal is with prejudice. The remedy here if which shall be deemed to be a part of the pleading, or said
you do not agree with the court is to Appeal. You do not use copy may with like effect be set forth in the pleading. (7)
certiorari because appeal is available. SECTION 8. How to Contest Such Documents. When an
action or defense is founded upon a written instrument, copied
I filed a complaint against D. D filed MTD on the ground of in or attached to the corresponding pleading as provided in the
prescription. Court granted the dismissal. I did not agree with preceding section, the genuineness and due execution of the
the court. Is this the dismissal that put an end in the case? The instrument shall be deemed admitted unless the adverse party,
case is over. There is already an adjudication on the merits. under oath, specifically denies them, and sets forth what he
Thus, the remedy is Appeal. Be careful with those words claims to be the facts; but the requirement of an oath does not
with prejudice, without prejudice 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. (8a)
without prejudice case can still be re-filed, certiorari.
adjudication of merits case is over, appeal.
with prejudice can no longer be re-filed, appeal. - In case an actionable document is involved. It is a
document that is a basis for an action or defense. If I file
D filed an MTD but the complaint was not dismissed. D has an action to collect a sum of money on the basis of
no alternative but to file an Answer. An answer is a responsive promissory note you executed on my favour. That PN is
pleading to a complaint and to a counterclaim, crossclaim, the basis of my claim which is an actionable document.
third-party complaint, complaint in intervention as they are all If Foreclosure of REM- Deed of REM
complaints. - An actionable document can also be a basis of defense.
So if I sue you for collection of sum of money and your
Two parts of an answer are negative defense and affirmative defense is payment evidenced by receipt. The receipt is
defense. an actionable document.
In negative defense, use specific denials as described by the - If I want to deny the genuineness and due execution of
Rules in Rule 8, SECTION 10. Specific Denial. A your document I have to deny it specifically plus an oath.
defendant must specify each material allegation of fact the It must be a verified denial. Specific denial is not
truth of which he does not admit and, whenever practicable, enough. If it is not under oath, you are admitting
shall set forth the substance of the matters upon which he impliedly the genuineness and due execution of his
relies to support his denial. Where a defendant desires to deny actionable document. Youre only bound to deny it under
only a part of an averment, he shall specify so much of it as is oath if you are a party to the instrument.
true and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to
 Dean Rianos Lecture 2014 25

- There are instances when you dont have to deny the (c) Effect of partial default. When a
document under oath: pleading asserting a claim states
If the person denying the genuineness is not a party a common cause of action
to the instrument or against several defending parties,
A previous request to show the original has been some of whom answer and the
refused. others fail to do so,
the court shall try the case
2. ALLEGATIONS OF USURY IN A COMPLAINT against all upon the answers thus
SECTION 11. Allegations Not Specifically Denied filed and render judgment upon
Deemed Admitted. Material averment in the the evidence presented. (4a, R18)
complaint, other than those as to the (d) Extent of relief, to be awarded. A
amount of unliquidated damages, shall be deemed judgment rendered against a
admitted when not specifically denied. party in default shall not exceed
Allegations of usury in a complaint to recover the amount or be different in kind
usurious interest are deemed admitted if not denied from that prayed for nor award
under oath. unliquidated damages. (5a, R18)

Illustration: P filed a complaint for sum of money against D. D (e) Where no defaults allowed. If the
said in his defense that Ps interest is usurious. The allegations defending party in an action for
of the usury by D is in his answer. P did not reply to the annulment or
allegations of the usury. Are the allegations of the usury declaration of nullity of marriage
deemed admitted? No as they are not allegations of usury in or for legal separation fails to
the complaint that is filed to recover usurious interest. The answer, the court shall order the
allegation of usury here is a defense in an answer. Not all prosecuting attorney to
allegations of usury of interest need to be denied under oath. It investigate whether or not a
should be allegation of usury in a complaint that is filed to collusion between the parties
recover usurious interest. exists, and if there is no
collusion, to intervene for the
What if the defendant does not file and serve his answer to the State in order to see to it that the
complaint? Now comes in the principles of Rule 9, SECTION evidence submitted is not
3. Default; Declaration of. If the defending party fails to fabricated. (6a, R18)
answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending Illustration: I am the judge and I was examining the records of
party, and proof of such failure, declare the defending party in the case. I noticed that D has been duly served with summons
default. Thereupon, the court shall proceed to render judgment but its already 2 months and there was no answer. So I issued
granting the claimant such relief as his pleading may warrant, an order of default. Did I follow the rules when I immediately
unless the court in its discretion requires the claimant to ordered the default of the defendant. This has not been asked
submit evidence. Such reception of evidence may be delegated in the Bar yet. The court is not correct because you can only
to the clerk of court. (1a, R18) declare a party in default upon motion. The court cannot motu
(a) Effect of order of default. A party in proprio declare D in default.
default shall be entitled to What is the ground for declaration of default? Only one
notice of subsequent ground in Sec. 3 of R9: failure to answer within reglementary
proceedings, but not to take part period. Thus a failure to appear in pre-trial is not a ground to
in the trial. (2a, R18) default. It has a different consequence. The court there would
allow the plaintiff to present evidence ex parte. But the rules
(b) Relief from order of default. A do not call it default. Also the failure to appear in trial is not a
party declared in default may at ground to default. This is not a basketball game na pag di ka
any time after notice thereof and sumipot ay default na. But is there a possibility that even if
before judgment file a motion you file an answer there can be a default? Yes. Theoretical
under oath to set aside the possibility: D filed an answer. I wanted to file a reply but her
order of default upon proper answer needed more particulars before I can file a reply on her
showing that his failure to answer. Remember that a Motion for bill of particulars is not
answer was due to fraud, limited to a complaint. It could be directed against any
accident, mistake or excusable pleading. Now, back to the story, the court ordered her to
negligence and that he has a submit a bill of particulars to her answer and she refused to do
meritorious defense. In such so. So the court drop out her answer. It is as if there is no
case, the order of default may be answer. I could move to declare her in default. But another
set aside on such terms and situation is found in the Rules. The failure to comply with the
conditions as the judge may modes of discovery could lead to a judgment in default. Rule
impose in the interestof justice. 29, Section 5. Failure of Party to Attend or Serve Answers.
(3a, R18) If a party or an officer or managing agent of a party wilfully
 Dean Rianos Lecture 2014 26

fails to appear before the officer who is to take his deposition, pleading may warrant, unless the court in its discretion
after being served with a proper notice, or fails to serve requires the claimant to submit evidence. Such
answers to interrogatories submitted under Rule 25 after reception of evidence may be delegated to the clerk of court.
proper service of such interrogatories, the court on motion and The court has 2 options:
notice, may strike out all or any part of any pleading of that 1. proceed to render judgment or
party, or dismiss the action or proceeding or any part thereof, 2. require the plaintiff to present the evidence.
or enter a judgment by default against that party, and in its
discretion, order him to pay reasonable expenses incurred by But also take note of the instances where you cannot be
the other, including attorney's fees. (5) declared in default:
- The answer is not an answer to the complaint but an 1. actions for annulment of marriage
answer to the mode of discovery. So the party in default 2. action for declaration of nullity of marriage
here could be against the plaintiff who does not comply 3. action for legal separation
with the modes of the discovery. Not only limited to
defendant. That can be used as a trick question!

Rule 29, Section 3. Other Consequences. If any party or an Take note also that if you win by default, you cannot be given
officer or managing agent of a party refuses to obey an order more than what you are asking for. You cannot be given
made under Section 1 of this Rule requiring him to answer different from it either.
designated questions, or an order under Rule 27 to produce . Rule 9, SECTION 3. Default; Declaration of. x x x.x x x
any document or other thing for inspection, copying, or (d) Extent of relief, to be awarded. A
photographing or to permit it to be done, or to permit entry judgment rendered against a
upon land or other property, or an order made under Rule 28 party in default shall not exceed
requiring him to submit to a physical or mental examination, the amount or be different in kind
the court may make such orders in regard to the refusal as are from that prayed for nor award
just, and among others the following: unliquidated damages. (5a, R18)
xxx Kung hinihingi mo ay P10M kahit na ang ebidensya moy
P20M, P10M lang ang ibibigay sayo.
(c) An order striking out pleadings or
parts thereof, or staying further
proceedings until the order is But the story is different if it is really a trial on the merits.
obeyed, or dismissing the action The pleadings say P10M. The evidence proved P15M during
or proceeding or any part thereof, the trial. There was no objection. The court can grant P15M
or rendering a judgment by because it is as if it was the issue in the pleadings. But in case
default against the disobedient of defaults, you are only limited to what you have asked for
party; and even if the evidence says the contrary.
xxx
- A plaintiff can be considered in default also here. Do not forget the kinds of COUNTERCLAIMS:
- So these are the hidden defaults. The public default is in Permissive, Compulsory
Rule 9. That is what is commonly known to the public.

The first indication that the counterclaim is compulsory is

Illustration: I am the defending party, I did not file an answer. that it has a subject matter really related to the complaint. If
The plaintiff filed a motion to declare me in default. no relation, it is merely permissive.
Jurisprudence has decided, not literally in accordance with the
Rules which say shall declare, that declaration in default is
not mandatory on the part of the court. Even if the answer is But sometimes even if there is a relation between the topic of
filed late but admitted by the court, it should not declare the the counterclaim and the topic of the complaint, it is still
defendant in default. Now, a person declared in default, he is considered permissive if the counterclaim is filed with the
entitled to be given a copy of the motion to declare him in court which has no jurisdiction over it. Example, I am a cook
default. If he is declared in default, he is not entitled to in a restaurant of Radisson Blu Hotel. Because of my
participate in the proceedings. He has lost his standing in negligence, the kitchen was burned to the extent of P10M. The
court. But he is entitled to the notices of the subsequent management dismissed me and sued me for damages. I filed
proceedings. Only notices, not participation. How could a an answer and my counterclaim is illegal dismissal. My
defaulted defendant participate in the trial even if he has been counterclaim was related to the complaint; it was about the
declared in default? He could appear as a witness because burning thats why I was dismissed. But my counterclaim is
default does not prevent you from becoming a witness. It only permissive and not compulsory because a regular court has no
prevents you from participating in the proceedings as a party. jurisdiction over illegal dismissal which must instead be filed
Be very careful on this. Rule 9, SECTION 3. Default; with the labor arbiter.
Declaration of. x x x. Thereupon, the court shall proceed
to render judgment granting the claimant such relief as his
 Dean Rianos Lecture 2014 27

I was sued by the plaintiff-seller for non-payment of P250K by way of defense in the answer and thereby join or make
representing the balance for the purchase of a car. My issue as to such new matters. If a party does not file such
counterclaim is that I am not going to pay you because I am reply, all the new matters alleged in the answer are
going to collect from you P500K because your car sold to me deemed controverted.
has a hidden defect. My counterclaim is related to the If the plaintiff wishes to interpose any claims arising out of the
complaint but it is merely permissive because an MTC has no new matters so alleged, such claims shall be set forth in an
jurisdiction over a counterclaim of P500K. It is beyond its amended or supplemental complaint. (11)
jurisdiction. If you go to the RTC, if your counterclaim is only
P200K it is still compulsory even if the amount is not within
RTC. The rule is different in MTC. If it is not within its - in other words, even if you do not file a reply, the
jurisdiction, permissive. But in RTC, even if its not within its allegations in the answer are deemed denied.
jurisdiction, still compulsory counterclaim.

But contrasted with complaint, it is different. Rule 8,

Bar 2010 SECTION 11. Allegations Not Specifically Denied Deemed
You sued me for collection of sum of money. I am also suing Admitted. Material averment in the complaint, other than
you for: damages for filing a complaint with no basis at all, I those as to the amount of unliquidated damages, shall be
was forced to litigate so I hired a lawyer because of your deemed admitted when not specifically denied.
baseless complaint and I got sick so I got hospitalized. Allegations of usury in a complaint to recover usurious
Compulsory Counterclaim, because all of the expenses are the interest are deemed admitted if not denied under oath.
result of the filing of the complaint.

You sued me for collection of P10M. My counterclaim was When are you advised to file a reply even if you are not
this, bayaran mo din ako ng P10M because my warehouse obligated to file a reply? IOW what is the circumstance
which you rented was burned because of your negligence. requiring you to file a reply? If the answer of the defendant
Permissive, because it has no relation. The complaint was uses an actionable document as a defense and you want to
based on a contract of loan. The counterclaim was based on deny the genuineness and due execution of that document, you
quasi-delict. have to reply under oath.

The last pleading is the reply. Then the case is deemed

Why make a distinction between compulsory and permissive submitted to the court for decision. Yung mga rejoinder na yan
counterclaim? If you know that your counterclaim is theyre not pleadings but mere manifestations. So papasok na
permissive, the other party has to file an answer; otherwise, ang pre-trial. Rule 18.
the defendant can declare him in default for failure to file an
answer. A permissive counterclaim is like an independent PRE-TRIAL
complaint. It has to be answered. A compulsory counterclaim
Rule 18
does not have to be answered.
- It can only be set when all the pleadings are in court, OW
its premature.
Compulsory counterclaim does not need a certification against - In the civil case, it is not the court which motu proprio
forum shopping but the permissive counterclaim because it is set the case for pre-trial. The PLAINTIFF must file a
considered an initiatory pleading must be accompanied with a motion ex parte to set the case for pre-trial. If he does not
certification against forum shopping. file a motion to set the case for pre-trial, the case will not
move.
- Suppose the case has not moved for an unreasonable
Under the present rules, SC requires payment for both period of time it is considered as failure to prosecute the
compulsory and permissive counterclaims since 2004. case. This is the fault of the plaintiff. Under Rule 17,
Sec. 3, it is a ground for dismissal. But now it is not
A compulsory counterclaim will be barred if not invoked in anymore a ground for dismissal since July 13, 2004 if the
the same case. But a permissive counterclaim will not be plaintiff failed to file a motion for pre-trial. Plaintiff is
barred. It will be filed as an independent action. given 5 days from the filing of the last pleading to file
the motion to set the case for pre-trial. OW, the branch
clerk of court will set the case in pre-trial. <but that is not
When the complaint is dismissed, there is no automatic reflected in you Rex copies. Bad t-Rex! Dean Riano
dismissal of the counterclaim. The dismissal is limited to the told Rex about it 10 years ago!>
complaint. It does not cover the complaint. - Within five (5) days from date of filing
of the reply, the plaintiff must promptly move ex
parte that the case be set for pre-
Is a reply mandatory? No. Rule 6, SECTION 10. Reply. A trial conference. If theplaintiff
reply is a pleading, the office or function of which is to deny, fails to file said motion within the given
or allege facts in denial or avoidance of new matters alleged period, the Branch COC shall issue a notice of pre-
 Dean Rianos Lecture 2014 28

trial. DISHEA||| (Guidelines in the Conduct of Pre-Trial Pre-trial is mandatory in trial courts for both civil and criminal
and Use of Deposition-Discovery Measures, A.M. No. case. On the other hand, Preliminary conference is not
03-1-09-SC [2004]) mandatory in appellate courts.

SECTION 2. Nature and Purpose. The pre-trial is RULE 48, Preliminary Conference, SECTION 1. Preliminary
mandatory. The court shall consider: Conference. At any time during the pendency of a case,
(a) The possibility of an amicable settlement or of a the court may call the parties and their counsel to a
submission to alternative modes of dispute resolution; preliminary conference:
(a) To consider the possibility of an amicable settlement,
(b) The simplification of the issues; except when the case is not allowed by law to be
(c) The necessity or desirability of amendments to the compromised;
pleadings; (b) To define, simplify and clarify the issues for
(d) The possibility of obtaining stipulations or determination;
admissions of facts and of documents to avoid (c) To formulate stipulations of facts and
unnecessary proof; admissions of documentary exhibits, limit the
number of witnesses to be presented in cases falling within the
(e) The limitation of the number of witnesses; original jurisdiction of the court, or those within its appellate
(f) The advisability of a preliminary reference of issues to jurisdiction where a motion for new trial is granted on the
a commissioner; ground of newly discovered evidence; and
(g) The propriety of rendering judgment on the pleadings, (d) To take up such other matters which may aid the court in
or summary judgment, or of dismissing the action the prompt disposition of the case. (Rule 7, CA Internal Rules)
should a valid ground therefor be found to exist; (n)

(h) The advisability or necessity of suspending the

proceedings; and It is also possible to have a preliminary conference in the
Supreme Court, Rule 56, SECTION 2. Rules Applicable.
(i) Such other matters as may aid in the prompt The procedure in original cases for certiorari,
disposition of the action. prohibition, mandamus, quo warranto and habeas corpus shall
be in accordance with the applicable provisions of the
There is a pre-trial in a criminal case. Rule 118. In a criminal Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule,
case, the prosecution need not file a motion to set the case for subject to the following provisions: x x x
pre-trial. The pre-trial will be set by the court after
arraignment and within 30 days after it acquired jurisdiction
over the accused. Suppose the plaintiff and defendant do not want to settle the
case amicably and the court decided to end the pre-trial, is the
A pre-trial in a criminal case is MANDATORY. Rule 118, court correct? No. Amicable settlement is not the only purpose
SECTION 1. Pre-trial; Mandatory in Criminal Cases. In of pre-trial. You can have ADR, stipulations and admissions
all criminal cases cognizable by the Sandiganbayan, Regional of facts, limit the number of witness, etc. Thus, failure to reach
Trial Court, Metropolitan Trial Court, Municipal Trial Court an amicable settlement is not a ground to terminate pre-trial as
in Cities, Municipal Trial Court and Municipal Circuit Trial there are many other purposes for a pre-trial. This is one way
Court, the court shall, after arraignment and within thirty (30) of telling you to remember the purposes!
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, order a pre- Now lets compare it with criminal case. Amicable settlement
trial conference to consider the following: is not one of the purposes of the pre-trial in a criminal case.
There are no amicable settlement and compromise in criminal
(a) plea bargaining; (pleading to a lesser offense) case because of Rule 130, Section 27. Offer of compromise
(b) stipulation of facts; not admissible. xxx
(c) marking for identification of evidence of the parties;
In criminal cases, except those involving quasi-offenses
(d) waiver of objections to admissibility of evidence; (criminal negligence) or those allowed by law to be
(e) modification of the order of trial if the accused admits compromised, an offer of compromised by the accused may be
the charge but interposes a lawful defense; and received in evidence as an implied admission of guilt.
(f) such matters as will promote a fair and expeditious xxx
trial of the criminal and civil aspects of the case. (secs.
2 and 3, cir. 38-98) Is there a matter in criminal proceeding that can be subject to
compromise or amicable settlement? Yes. A criminal case has
two aspects: criminal and civil
The equivalent of pre-trial in appellate courts and in a civil RPC, ARTICLE 100.Civil Liability of Person
case in summary procedure Guilty of Felony. Every person criminally liable for a
is preliminary conference. felony is also civilly liable.
 Dean Rianos Lecture 2014 29

- Here, only the civil aspect can be compromised. But Rule 18, SECTION 5. Effect of Failure to Appear. The
even if the civil aspect is compromised, this will not failure of the plaintiff to appear when so required pursuant to
prevent the State from imposing the penalty for that the next preceding section shall be cause for dismissal of the
offense. action. The dismissal shall be with prejudice, unless otherwise
ordered by the court. A similar failure on the part of the
- NCC, ARTICLE 2034.There may be a compromise defendant shall be cause to allow the plaintiff to present his
upon the civil liability arising from an offense; but evidence ex parte and the court to render judgment on the
such compromise shall not extinguish the public action basis thereof. (2a, R20)
for the imposition of the legal penalty.
- Lets talk about reality, this lady pointed a bazooka at
me and said, your money or your life. There is robbery Suppose there is no amicable settlement, the next would be
here. An information for robbery was filed. Then, she Trial. Rule 30
said, huwag mo na akong idemanda, ill return to you There can be a judgment without a trial. Trial is only
the money I stole with interest. So I told the fiscal necessary if there are issues of facts to be resolved. You do not
about it. Then fiscal filed motion to withdraw the resolve issues of law in a trial, but only issues of facts. If
information. Hes not gonna say that its because of the everything has been admitted by the parties already there is no
compromise. Hed say that the reason was based on the need for a trial. Plaintiff may file a motion for a judgment on
absence of evidence and eye-witnesses. There is actual the pleadings. A judgment on the pleading and a summary
compromise here. But hes not gonna say it in court, judgment are both judgments with no trial.
otherwise he will be subjected to disciplinary action There can be a judgment as a consequence on a mere Motion
for ignorance of the law. to Dismiss when the dismissal is res judicata; if the ground for
- Theres one aspect of a difference in pre-trial of civil dismissal is prescription, payment and unenforceable under
case and pre-trial of criminal case which you should Statute of Frauds, you cannot refile because there is a
look out for. If the prosecutor and accused do not judgment. The remedy is appeal. You can only appeal a
appear in a pre-trial of a criminal case, there is no judgment.
dismissal of the case. But if a plaintiff, without In a summary procedure, in a civil case, there is no trial. There
justifiable cause, does not appear in the pre-trial of are only affidavits, pleadings and depositions. There is a
civil case, there is a possible dismissal of the case. If judgment.
defendant does not appear, that would be a ground for
the court to ask the plaintiff to present the evidence ex
parte. If you are a party who cannot attend a pre-trial, A trial can be dispensed with by agreement of the parties. Rule
you must designate a representative in writing. The 30 SECTION 6. Agreed Statement of Facts. The parties to
authorization must contain specific authorization. Rule any action may agree, in writing, upon the facts involved in
18, SECTION 4. Appearance of Parties. It shall be the litigation, and submit the case for judgment on the facts
the duty of the parties and their counsel to appear at agreed upon, without the introduction of evidence.
the pre-trial. The non-appearance of a party may be If the parties agree only on some of the facts in issue, the trial
excused only if a valid cause is shown therefor or if a shall be held as to the disputed facts in such order as
representative shall appear in his behalf fully the court shall prescribe. (2a, R30)
authorized in writing
to enter into an amicable settlement,
Is it possible to have a modified trial in a civil case? Yes. In
to submit to alternative modes of dispute Civil cases, SECTION 5. Order of Trial. Subject to the
resolution, and provisions of Section 2 of Rule 31, and unless the court for
to enter into stipulations or admissions of facts special reasons otherwise directs, the trial shall be limited to
and of documents the issues stated in the pre-trial order and shall proceed as
follows:
xxx
In trial practice, it is also the lawyer who is given the Illustration: P filed an action for sum of money worth P5M
authority to compromise. So when the lawyer appears, he against D. D admitted the debt but alleged that he paid it
appears in two capacities: as a counsel and as a personal already. Upon motion by D, the court may grant D to present
representative of the party. evidence ahead of P to prove the fact of payment.

When can a party be considered as absent even if present? Rule 31, SECTION 2. Separate Trials. The court, in
The failure to file a pre-trial brief. furtherance of convenience or to avoid prejudice, may order a
If the plaintiff fails to appear in the pre-trial and the case is separate trial of any claim, cross-claim, counterclaim, or third-
dismissed, can the plaintiff re-file the case? General rule: it party complaint, or of any separate issue or of any
cannot be re-filed unless otherwise ordered. It is with number of claims, cross-claims, counterclaims, third-party
prejudice. Remedy here is to appeal. complaints or issues
- All of these are discretion of the court
 Dean Rianos Lecture 2014 30

Compare this with criminal cases, Rule 119. The motion for leave of court to file demurrer to evidence
SECTION 11. Order of Trial. The trial shall proceed in the shall specifically state its grounds and shall be filed within a
following order: xxx non-extendible period of five (5) days after the prosecution
rests its case. The prosecution may oppose the motion within a
(e) When the accused admits the act or omission charged in non-extendible period of five (5) days from its
the complaint or information but interposes a lawful defense, receipt. EHDCAI
the order of trial may be modified. (i.e. self defense)
If leave of court is granted, the accused shall file the demurrer
Rule 118, SECTION 1. Pre-trial; Mandatory to evidence within a non-extendible period of ten (10) days
in Criminal Cases. xxx from notice. The prosecution may oppose the demurrer to
(e) modification of the order of trial if the evidence within a similar period from its receipt.
accused admits the charge but The order denying the motion for leave of court to file
interposes a lawful defense; and demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment. (n)
A trial can be postponed. But if it is through oral motion, if
you are the lawyer of the other party, you object. Rule 30, TRANSCRIPT 5
SECTION 4. Requisites of Motion to Postpone Trial for
Illness of Party or Counsel. A motion to postpone a trial on Demurrer to Evidence
the ground of illness of a party or counsel may be granted if it - A form of a motion to dismiss but it is not the MTD in
appears upon affidavit or sworn certification that the Rule 16. It is not also the MTD in Rule 17. The
presence of such party or counsel at the trial is indispensable Demurrer to Evidence in Rule 33 is a motion filed after
and that the character of his illness is such as to render his the plaintiff has rested his case which means that the
non-attendance excusable. (5a, R22) plaintiff is already done with the presentation of his
evidence. It is now for the defendant to present the
evidence. But the defendant realized that there is no need
RULE 33 to present evidence because he thinks that the plaintiff is
Demurrer to Evidence not entitled to the relief as seen in law and in facts. The
ground here is insufficiency of evidence but do not use
SECTION 1. Demurrer to Evidence. After the plaintiff has these words. Simply use the wordings of the Rules: upon
completed the presentation of his evidence, the defendant may the facts and the law the plaintiff has shown no right to
move for dismissal on the ground that upon the facts and the relief. In the criminal case the ground is very specific:
law the plaintiff has shown no right to relief. If his motion is insufficiency of evidence.
denied, he shall have the right to present evidence. If the
motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to Does the defendant have to file a Demurrer to Evidence with
present evidence. (1a, R35) leave of court? Not in a civil case.
- This is a Motion to Dismiss but differently named in
order to avoid confusion with Rule 16. A motion to Let us now presume that defendant filed a Demurrer to
dismiss is filed even before an Answer is served but a Evidence. Demurrer to Evidence is just a more sophisticated
Demurrer to evidence is filed after the plaintiff rests his name for an MTD. And so the DTE was granted by the court
case, meaning he is done with the presentation of his and the case is dismissed. The dismissal here is a final one.
evidence. Thus, the plaintiff could appeal. Upon appeal, the dismissal
- There is only one ground for demurrer to evidence. In the was reversed. The higher court decided that the case should
civil case, do not use insufficiency of evidence. Instead, have not been dismissed. Is there any adverse implication
use: Under the facts and the law the plaintiff is not against the defendant? Yes. The defendant can no longer
entitled to the relief. The phrase insufficiency of present his evidence if the order of dismissal is reversed. The
evidence is a ground for demurrer in a criminal case in higher court will decide on the case on the basis of the
Rule 119, SECTION 23. Demurrer to Evidence. After evidence of the plaintiff. That is the effect of a DTE granted
the prosecution rests its case, the court may dismiss the but reversed on appeal.
action on the ground of insufficiency of evidence
(1)on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence Suppose the DTE was denied by the trial court, the case is not
filed by the accused with or without leave of court. over. The defendants move is to present his evidence. There
is no waiver.
If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When
the demurrer to evidence is filed without leave of court, the That is why it is very risky to file a DTE. If it was granted by
accused waives the right to present evidence and submits the the trial court and the case is dismissed, the plaintiff appeals
case for judgment on the basis of the evidence for the and the case is reversed on appeal, the defendant can no longer
prosecution. (15a) present his evidence.
 Dean Rianos Lecture 2014 31

In the criminal case, even the court in its own initiative can The entry of judgment is the physical act by which the Clerk
dismiss the criminal case. In other words, after the prosecution of Court enters the dispositive portion of the judgment in the
has presented the evidence, the court can dismiss the criminal Book of Entries of Judgment and he signs and certifies that it
case on the ground of insufficiency of evidence. The court can has become final and executory.
motu proprio make its own demurrer to evidence in a criminal
case. Before it makes its own demurrer, the court will give the
prosecution the opportunity to be heard. That is not true in a Suppose the Clerk of Court forgot to do it on that date and
civil case. The court does not make its own demurrer in the instead physically entered the judgment on April 20. Under
civil case. the new rules, the entry of judgment is not April 20 but on
April 16, the day the judgment actually became final and
executory. Not yet asked in the bar.
In a civil case, the DTE is filed by the defendant. In the
criminal case, DTE may be done by the court in its own
initiative or it may be done by the accused. When the accused Another important concept: Separate Judgment. Several
files DTE in a criminal case, he can do it in 2 ways: Judgment (se-vee-ral, nahati/naputol, hindi yung marami)
1. With leave of court - There is an advantage when the
accused files a DTE with leave of court and it is Sec. 36, SECTION 4. Several Judgments. In an action
denied he can still present his evidence. against several defendants, the court may, when a several
judgment is proper, render judgment against one or
2. Without leave of court- But if he files a DTE without moreof them, leaving the action to proceed against the others.
leave of court and it is denied, he waives his right to (4)
present his evidence.
- This presupposes many defendants. But it is possible that
the court can render judgment first on one of the
defendants before it can decide on the others. It depends
A criminal case is unique in the sense that if you file a DTE, on the availability of evidence during the trial. Normally
granted and the case is dismissed, it is not just a mere though, Philippine courts do not apply this. normally,
dismissal as it amounts to an ACQUITTAL. Thus, the judges wait for all the evidence to come in.
prosecution cannot appeal because of the principle of Double
Jeopardy. In the civil case, if it is granted, he can appeal. SECTION 5. Separate Judgments. When more than one
claim for relief is presented in an action, the court, at any
stage, upon a determination of the issues material to a
Let us suppose the case was not dismissed by the demurrer. So
particular claim and all counterclaims arising out of the
proceed with the trial then the judgment. Can there be a
transaction or occurrence which is the subject matter of the
judgment even without a trial? Yes.
claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to
JUDGMENT the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered,
There are 2 concepts you have to remember in the judgment. the court by order may stay its enforcement until the
What do you mean by a Final Judgment? rendition of a subsequent judgment or judgments and may
The word final is used in two senses: prescribe such conditions as may be necessary to secure the
That the trial is over and the court has made the benefit thereof to the party in whose favor the judgment is
decision rendered. (5a)
It could already be subject to execution - This presupposes various claims: claim of plaintiff, claim
of defendant, in a counterclaim, cross-claim, claim on
third-party complaint. Possible not sabay-sabay i.e.
The moment the court renders judgment and you are notified
pwede maunang i-resolve ang claim sa counterclaim then
of that judgment, it does not mean that it is executory. It is
that of cross-claim.
only final. It becomes executory when the period for appeal
lapses. The normal period for appeal is 15 days from notice of These provisions authorized the courts to render several
judgment or final order. judgments or separate judgments when circumstances warrant.
These are subject to the sound judicial discretion.
The judgment cannot be an oral judgment. It must be in
There is another important concept called Entry of Judgment.
writing. The judgment must be personally prepared and signed
Rule 36.
by the judge. (Although in reality judges have legal
researchers who prepare for it; but once the judge signs it, by
Suppose you received the notice of judgment on April 1. You legal fiction it is deemed as though personally prepared by the
generally have 15 days to make a move appeal or MR or judge)
MNT. On April 16, no move was made, the judgment became
final and executory. The date it became final and executor is
also the date of the entry of judgment.
 Dean Rianos Lecture 2014 32

A judgment has been rendered. Let us assume the defendant "Sec. 9. Jurisdiction. The Court of Appeals shall
loses the case or sometimes the plaintiff loses the case. exercise:
Common sense tells us that you cannot immediately go to
execution since the party who lost in the case would try to xxx
reverse the adverse judgment.
"The Court of Appeals shall have the power to try cases and
conduct hearings, receive evidence and perform any and all
REMEDIES AGAINST THE JUDGMENT acts necessary to resolve factual issues raised in cases falling
- A topic that is almost every year present in the bar. within its original and appellate jurisdiction, including the
- a.k.a. Post-Judgment Remedies power to grant and conduct new trials or further proceedings.
- 2 situations: Trials or hearings in the Court of Appeals must be
continuous and must be completed within three (3) months,
BEFORE JUDGMENT BECOMES FINAL AND unless extended by the Chief Justice."
EXECUTORY (within the period for appeal)
Motion for Reconsideration, R37 ||| (Amendment to B.P. Blg. 129 Re: Expansion of CA
Motion for New Trial, R37 Jurisdiction, REPUBLIC ACT NO. 7902 [1995])
Appeal- R 40, 41, 42, 43, 45
So you have New Trials in the trial court and CA. Do you
AFTER JUDGMENT BECOMES FINAL AND
have new trials in SC? No. Under the Rule 56, Rule 53 on
EXECUTORY (after the period of appeal has lapsed)
New Trials that applies to CA does not apply to SC. In Rule
Annulment of Judgment- R47
56, Sec 2 there is no reference to Sec. 53. The reason for this
Petition for Relief- R38
is because the SC is not a trier of facts. The general rule is SC
Certiorari R65
caters to questions of law only.

Before you appeal, MR or MNT are not requirements.

However if you file an MR or MNT and that is denied, you Rule 45 - appeal by certiorari to the SC. Petition for review on
can Appeal. But you can file an appeal even without a prior Certiorari, Rule 45 (Petition for certiorari, Rule 65)
MR or prior MNT.
SECTION 1. Filing of Petition with Supreme Court. A
RULE 37 party desiring to appeal by certiorari from a judgment, final
order or resolution of the Court of Appeals, the
New Trial or Reconsideration Sandiganbayan, the Court of Tax Appeals, the Regional
Refers to MR and MNT against the judgment of a trial court. Trial Court or other courts, whenever authorized by law, may
Do you have MR in an appellate court, i.e. CA and SC? Yes. file with the Supreme Court a verified petition for review
Rule 52 for CA. SECTION 1. Period for Filing. A party on certiorari. The petition may include an application for a
may file a motion for reconsideration of a judgment or final writ of preliminary injunction or other provisional remedies
resolution within fifteen (15) days from notice thereof, with and shall raise only questions of law, which must be distinctly
proof of service on the adverse party. set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency.
Rule 56 for SC SECTION 2. Rules Applicable. The
procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and habeas corpus shall Rule 37 mentions 2 remedies: MR and MNT
be in accordance with the applicable provisions of the When do you use MR? When do you use MNT? Depending
Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, upon the grounds available
subject to the following provisions: xxx
There is a Motion for Reconsideration from the judgment of MNT grounds: 1. Fraud, accident, mistake or excusable
the Supreme Court because that is your only remedy against negligence which ordinary prudence could not have guarded
the SC. You cannot appeal to a body higher than SC. You against and by reason of which such aggrieved party has
cannot appeal to God. probably been impaired in his rights
Illustration: Suppose nagrereklamo ka, natalo ka, sabi mo,
Is there also an MNT against appellate court, i.e. CA? Yes. nadaya ako ng kabila kasi sabi nya di nako dadalo sa hearing
Rule 53 for CA. kasi ididismiss daw nya yung kaso. Yun pala di totoo yun.
CA is an appellate court but you are given the chance to file a Kaya natalo ako sa kaso coz i was not able to participate in the
motion for new trial when CA is not a trial court because there proceeding. I am a victim of fraud. I could file an MNT.
are times when CA can receive evidence, conduct trials and
even new trials to resolve factual issues. CA has unique 2. Newly discovered evidence, which he could not,
power. with reasonable diligence, have discovered, and
 Dean Rianos Lecture 2014 33

produced at the trial, and which if presented would denying a motion for new trial or reconsideration is not
probably alter the result. appealable, the remedy being an appeal from the judgment or
final order.
Illustration: suppose after the trial and the judgment was
rendered where you lost the case. 3 days after, you found - So, if it is denied, you cannot appeal from the order of
evidence which with reasonable diligence was not found the denial of MR.
before. And if presented in the trial could have actually altered - Can you file a Petition for certiorari against the order of
the results of the case. File MNT. Newly-discovered evidence denial? Before December 2007, Yes. After December
is not a forgotten evidence. This is an evidence that was not 2007, no more, the Rules have been amended. So, your
available before and could not have been discovered with due remedy for the denial of MR/MNT is to appeal from the
diligence even during the trial but was only discovered after judgment itself.
the trial. - So in the illustration, you received the notice of denial on
May 15. Do you have only 5 days more to file a notice of
MR: grounds: appeal? No. You have a fresh period of 15 days. Neypes
v. CA on September 14, 2005. SC said that the period of
the damages awarded are excessive, appeal is not only 15 days from notice of judgment but
that the evidence is insufficient to justify the decision also 15 days from notice of final order.
or final order, or that - If you did not file an MR/MNT, your period of appeal is
the decision or final order is contrary to law from notice of judgment. But if you filed an MR/MNT
and it is denied, that denial is a final order. When you
Word of caution: the grounds for MR are errors of judgment; received that order it is notice of final order. And the
these are also grounds for appeal but the Rules give you a period for appeal is not only 15 days from notice of
shorter route since MR is not as extensive as an appeal. judgment but also 15 days from notice of final order.
Rule 41, SECTION 3. Period of Ordinary Appeal. The
appeal shall be taken within fifteen (15) days from
The grounds for MNT are not errors of judgment; they are notice of the judgment or final order appealed from. Where a
matters outside the trial that prevented you from fully record on appeal is required, the appellant shall file a
participating in the proceedings. notice of appeal and a record on appeal within thirty (30) days
from notice of the judgment or final order.
Within what period do you file MR/MNT? Within the period
to appeal. 15 days from notice of judgment or final order; but The period of appeal shall be interrupted by a timely motion
sometimes it could be 30 days i.e. in special proceedings for new trial or reconsideration. No motion for
appeal except habeas corpus which is 48 hours. extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
Also in some special civil actions where there are several
stages of judgment they are subject to multiple appeals. For Neypes Rule is a civil case. SC said that it applies to all civil
instance, in expropriation proceedings, the first judgment is on cases: Rule 40, 41, 42, 43, and 45.
WON plaintiff govt agency has the right to expropriate; that
is appealable. The 2nd judgment is on the compensation; that is
appealable. The period to appeal here is 30 days because the ** The right to appeal is not a constitutional, natural or
judgments are subject to multiple appeals. inherent right it is a statutory privilege and of statutory
origin and, therefore, available only if granted or as provided
by statutes. It may be exercised only in the manner prescribed
Multiple appeals does not mean many people appealing. It by the provisions of the law. 14 The period to appeal is
means a case with several stages of judgment, each stage is specifically governed by Section 39 of Batas Pambansa
subject to appeal. Blg. 129 (BP 129), 15 as amended, Section 3 of Rule 41 of the
1997 Rules of Civil Procedure, and Section 6 of Rule 122 of
Illustration: D received a notice of judgment on April 1, the Revised Rules of Criminal Procedure.
meaning he has up to April 16 to file MR/MNT/Appeal. He Section 39 of BP 129, as amended, provides:
decided to file MR. On the 10th day he filed an MR. The MR SEC. 39. Appeals. The period for
was denied on May 5. The notice of denial was received by appeal from final orders, resolutions,
him on May 15. Can D appeal from the order of denial of my awards, judgments, or decisions of any
MR? No. D can appeal but will appeal from the judgment and court in all cases shall be fifteen (15) days
not from the order of denial. Ang judgment ang i-appeal mo counted from the notice of the final order,
not the order of denial. resolution, award, judgment, or decision
appealed from: Provided, however, That
Rule 37, SECTION 9. Remedy Against Order Denying a in habeas corpus cases, the period for
Motion for New Trial or Reconsideration. An order
 Dean Rianos Lecture 2014 34

appeal shall be forty-eight (48) hours from for a new trial or motion for
the notice of the judgment appealed from. reconsideration.
Section 3, Rule 41 of the 1997 Rules of Civil Procedure Henceforth, this "fresh period rule"
states: CAIaHS shall also apply to Rule 40 governing
SEC. 3. Period of ordinary appeal. appeals from the Municipal Trial
The appeal shall be taken within fifteen Courts to the Regional Trial Courts;
(15) days from notice of the judgment or Rule 42 on petitions for review from the
final order appealed from. Where a record Regional Trial Courts to the Court of
on appeal is required, the appellant shall Appeals; Rule 43 on appeals from
file a notice of appeal and a record on quasi-judicial agencies to the Court of
appeal within thirty (30) days from notice Appeals and Rule 45 governing appeals
of the judgment or final order. by certiorari to the Supreme Court. The
new rule aims to regiment or make the
The period of appeal shall be appeal period uniform, to be counted from
interrupted by a timely motion for new receipt of the order denying the motion for
trial or reconsideration. No motion for new trial, motion for reconsideration
extension of time to file a motion for new (whether full or partial) or any final order
trial or reconsideration shall be allowed. or resolution.
Section 6, Rule 122 of the Revised Rules of Criminal The Court also reiterated its ruling that it is the denial of the
Procedure reads: motion for reconsideration that constituted the final order
SEC. 6. When appeal to be taken. An which finally disposed of the issues involved in the case.
appeal must be taken within fifteen (15) The raison d'tre for the "fresh period rule" is to standardize
days from promulgation of the judgment the appeal period provided in the Rules and do away with the
or from notice of the final order appealed confusion as to when the 15-day appeal period should be
from. This period for perfecting an counted. Thus, the 15-day period to appeal is no longer
appeal shall be suspended from the interrupted by the filing of a motion for new trial or motion for
time a motion for new trial or reconsideration; litigants today need not concern themselves
reconsideration is filed until notice of with counting the balance of the 15-day period to appeal since
the order overruling the motion has the 15-day period is now counted from receipt of the order
been served upon the accused or his dismissing a motion for new trial or motion for
counsel at which time the balance of the reconsideration or any final order or resolution.
period begins to run.
In Neypes, the Court modified the rule in civil cases on the
counting of the 15-day period within which to appeal. The While Neypes involved the period to appeal in civil cases, the
Court categorically set a fresh period of 15 days from a Court's pronouncement of a "fresh period" to appeal should
denial of a motion for reconsideration within which to equally apply to the period for appeal in criminal cases under
appeal, thus: Section 6 of Rule 122 of the Revised Rules of Criminal
Procedure, for the following reasons:
The Supreme Court may promulgate
procedural rules in all courts. It has the First, BP 129, as amended, the substantive law on which the
sole prerogative to amend, repeal or even Rules of Court is based, makes no distinction between the
establish new rules for a more simplified periods to appeal in a civil case and in a criminal case. Section
and inexpensive process, and the speedy 39 of BP 129 categorically states that "[t]he period for appeal
disposition of cases. In the rules from final orders, resolutions, awards, judgments, or decisions
governing appeals to it and to the Court of of any court in all cases shall be fifteen (15) days counted
Appeals, particularly Rules 42, 43 and 45, from the notice of the final order, resolution, award, judgment,
the Court allows extensions of time, based or decision appealed from." Ubi lex non distinguit nec nos
on justifiable and compelling reasons, for distinguere debemos. When the law makes no distinction, we
parties to file their appeals. These (this Court) also ought not to recognize any distinction.
extensions may consist of 15 days or
more. Second, the provisions of Section 3 of Rule 41 of the 1997
To standardize the appeal periods Rules of Civil Procedure and Section 6 of Rule 122 of the
provided in the Rules and to afford Revised Rules of Criminal Procedure, though differently
litigants fair opportunity to appeal their worded, mean exactly the same. There is no substantial
cases, the Court deems it practical to difference between the two provisions insofar as legal results
allow a fresh period of 15 days within are concerned the appeal period stops running upon the
which to file the notice of appeal in the filing of a motion for new trial or reconsideration and starts to
Regional Trial Court, counted from run again upon receipt of the order denying said motion for
receipt of the order dismissing a motion new trial or reconsideration. It was this situation
 Dean Rianos Lecture 2014 35

that Neypes addressed in civil cases. No reason exists why this 2005, the date of receipt of notice denying her motion for new
situation in criminal cases cannot be similarly addressed. trial. CDTSEI
Third, while the Court did not consider in Neypes the ordinary ||| (Yu v. Samson-Tatad, G.R. No. 170979, February 09, 2011)
appeal period in criminal cases under Section 6, Rule 122 of
the Revised Rules of Criminal Procedure since it involved a
purely civil case, it did include Rule 42 of the 1997 Rules of By the way, the MR can only be filed by the same party once.
Civil Procedure on petitions for review from the RTCs to the An MNT could be filed 2x as long as the ground for the 2 nd
Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil MNT was not available when the first MNT was filed. But an
Procedure governing appeals by certiorari to this Court, both MR can only be filed once even if on appeal. But this rule on
of which also apply to appeals in criminal cases, as provided appeal is not an absolute rule because the SC can entertain
by Section 3 of Rule 122 of the Revised Rules of Criminal even 2 or 3 MRs. Reason: SC has the power to suspend a rule
Procedure, thus: depending on the merits of the case.
SEC. 3. How appeal taken. . . .
(b) The appeal to the Court of Appeals in APPEAL
cases decided by the Regional Trial Court - A statutory right only. Not a natural nor a constitutional
in the exercise of its appellate jurisdiction right.
shall be by petition for review under Rule
How can appeal be used in a bar exam? Well, in a very
42.
simple way. It can ask you the remedies. So you have to go
xxx xxx xxx on the basic rules on appeal.
(e) Except as provided in the last RULE 41, SECTION 1. Subject of Appeal. An appeal
paragraph of section 13, Rule 124, all may be taken from a judgment or final order that completely
other appeals to the Supreme Court shall disposes of the case, or of a particular matter therein when
be by petition for review declared by these Rules to be appealable. cIDHSC
on certiorariunder Rule 45.
No appeal may be taken from:
Clearly, if the modes of appeal to the CA (in cases where the
RTC exercised its appellate jurisdiction) and to this Court in (a) An order denying a petition for relief
civil and criminal cases are the same, no cogent reason exists or any similar motion seeking
why the periods to appeal from the RTC (in the exercise of its relief from judgment;
original jurisdiction) to the CA in civil and criminal cases (b) An interlocutory order;
under Section 3 of Rule 41 of the 1997 Rules of Civil
(c) An order disallowing or dismissing an
Procedure and Section 6 of Rule 122 of the Revised Rules of
appeal;
Criminal Procedure should be treated differently.
(d) An order denying a motion to set aside
Were we to strictly interpret the "fresh period rule"
a judgment by consent,
in Neypes and make it applicable only to the period to appeal confession or compromise on the
in civil cases, we shall effectively foster and encourage an
ground of fraud, mistake or
absurd situation where a litigant in a civil case will have a
duress, or any other ground
better right to appeal than an accused in a criminal case a
vitiating consent;
situation that gives undue favor to civil litigants and unjustly
discriminates against the accused-appellants. It suggests (e) An order of execution;
a double standard of treatment when we favor a situation (f) A judgment or final order for or
where property interests are at stake, as against a situation against one or more of several
where liberty stands to be prejudiced. We must emphatically parties or in separate claims,
reject this double and unequal standard for being contrary to counterclaims, cross-claims and
reason. Over time, courts have recognized with almost third-party complaints, while the
pedantic adherence that what is contrary to reason is not main case is pending, unless
allowed in law Quod est inconveniens, aut contra rationem the court allows an appeal
non permissum est in lege. 18 therefrom; and
Thus, we agree with the OSG's view that if a delay in the (g) An order dismissing an action without
filing of an appeal may be excused on grounds of substantial prejudice.
justice in civil actions, with more reason should the same
In any of the foregoing circumstances, the aggrieved party
treatment be accorded to the accused in seeking the review on
may file an appropriate special civil action as provided in Rule
appeal of a criminal case where no less than the liberty of the
65.
accused is at stake. The concern and the protection we must
extend to matters of liberty cannot be overstated. - You have to remember those matters that cannot be
In light of these legal realities, we hold that the petitioner appealed.
seasonably filed her notice of appeal on November 16, 2005, - So if you cannot appeal, the remedy is Rule 65:
within the fresh period of 15 days, counted from November 3, certiorari, prohibition and mandamus.
 Dean Rianos Lecture 2014 36

- If the judgment or final order is appealable, DO NOT Certiorari. The order of the court is not a
USE Rule 65. The remedy is appeal final order but only an interlocutory order
- But if not appealable, you can use Rule 65 which does not give an end to the case. You
- Those enumerated from a g, not appealable, thus the may also add Prohibition.
remedy is Rule 65.
- Illustrations: 5. The case was filed in RTC. I filed MTD on
1. A judgment became final and executory. the ground of improper venue. It was
The winning party files a motion for the dismissed. The plaintiff did not agree with
issuance of a writ of execution. But the court the dismissal. What is the remedy of the
denied it without valid reason. Is that order plaintiff? Let me guide you, the dismissal on
of denial appealable? No. There is no rule improper venue without prejudice. The
which provides for its appeal. Therefore, use remedy is Rule 65.
Rule 65. Mandamus, because execution
becomes a matter of right the moment the 6. Suppose the plaintiffs case was dismissed
judgment becomes final and executory. on the ground of lack of jurisdiction. Can
Plaintiff re-file it? Yes. Thus, the dismissal
was without prejudice. Thus the remedy is
2. The judgment has not become final and certiorari.
executory. But the court ordered the
execution of that judgment. Can you appeal
from its order? Sec. 1 of Rule 41. (e) An N.B. Pag na-dismiss yung kaso at pwede pang i-refile, without
order of execution; x x x So, go to Rule 65. prejudice ang dismissal.
Certiorari and/or Prohibition Kung di ka sumasang-ayon sa hukuman, i-certiorari mo sya,
hindi appeal.
3. I filed a complaint but I forgot according to
7. I filed MTD on a case on the ground of res
the court to include the certification against
judicata. The case was dismissed. Plaintiff
forum shopping. Upon motion, the court
did not agree on that ground. Plaintiffs
dismissed my complaint. I said, there was
remedy is appeal because the dismissal here
substantial compliance because my
is with prejudice as re-filing is precluded.
certification was incorporated in the
Rule 16. SECTION 5. Effect of Dismissal.
paragraphs of my complaint. The court
Subject to the right of appeal, an order
disagreed. So my case was dismissed. Is my
granting a motion to dismiss based on
remedy an appeal or Rule 65? You have to
paragraphs (f), (h) and (i) of Section 1
ask: Is the dismissal with prejudice or not?
hereof shall bar the refiling of the same
Refer to Sec. 5 of Rule 7: x x x Failure to
action or claim.
comply with the foregoing requirements
shall not be curable by mere
amendment of the complaint or other 8. Plaintiffs case was dismissed due to his
initiatory pleading but shall be cause for the non-appearance during pre-trial. Whats the
dismissal of the case without prejudice, remedy? Rule 18, SECTION
unless otherwise provided, upon motion and 5. Effect of Failure to Appear. The
after hearing. The submission of a false failure of the plaintiff to appear when so
certification or non-compliance with required pursuant to the next preceding
any ofthe undertakings therein shall section shall be cause for dismissalof the
constitute indirect contempt of court, action. The dismissal shall be with
without prejudice to the corresponding prejudice, unless otherwise ordered by
administrative and criminal actions. If the the court. A similar failure on the part of the
acts of the party or his counsel clearly defendant shall be cause to allow the
constitute willful and deliberate forum plaintiff to present his evidence ex parte and
shopping, the same shall be ground for the court to render judgment on the basis
summary dismissal with prejudice and shall thereof
constitute direct contempt, as well as a cause
for administrative sanctions. So the remedy is to Appeal.

An order dismissing a case without prejudice is

not appealable. Thus, the remedy is Rule 65. 9. During the pre-trial, the parties agreed for an
amicable settlement. They submitted their
4. A complaint was filed in RTC. I filed a amicable settlement to the court. So the
MTD on the ground of improper venue. The court rendered a judgment on the
court denied. I filed an MR but also denied. compromise. But one party said that he
Can I appeal from that denial or Rule 65? agreed to the compromise because he was a
 Dean Rianos Lecture 2014 37

victim of intimidation. So he filed a motion petition for review on certiorari under Rule 45 and I
to set aside the judgment on the compromise go directly to the SC.
on the ground that he was intimidated only.
It was denied. Whats his remedy? Rule 65. c. Suppose that from the original jurisdiction of RTC
10. I filed a petition for relief. Denied. I dont you want to raise questions of facts only, you go to
agree with the court. Remedy? Rule 65. CA under Rule 41.

d. Suppose you want to raise mix questions of fact and

But the more difficult one there is yung with prejudice or yung law, still to the CA under Rule 41.
without prejudice. Kaya if nabasa nyo sa Rules adjudication
on the merits- that means with prejudice na ha. Ang mantra e. Suppose you want to raise only questions of law, do
mo ay easy lang: not use Rule 41, instead go to Rule 45 to SC.
With prejudice appeal
Without prejudice Rule 65.
RTC TO CA
11. My case was dismissed against Mr. X
because my case was unenforceable under Illustration:
the Statute of Frauds. Remedy? Appeal
because if a case was dismissed based on a 1. You lost in MTC then you appealed to RTC. Then you lost
statute of frauds you cannot re-file it. So, again in the RTC exercising its appellate jurisdiction. You
appeal. It is part of Sec. 5 of Rule 16. want to appeal now to the CA. Mode of Appeal here is
Petition for Review under Rule 42. Bayad mo sa CA.
In the modes of appeal, you dont need to memorize all the 2. You lost in MTC then you appealed to RTC. Then you lost
provisions. Just look at the way the mode of appeal has been again in the RTC exercising its appellate jurisdiction. Now,
done. you just want to raise pure questions of law. Where do you go
to? Not in SC. Dun ka pa rin sa Rule 42. Therefore, CA can
also deal with pure questions of law provided that the
FROM MTC TO RTC
judgment of the RTC is in the exercise of its appellate
jurisdiction. But when judgment of the RTC is in the exercise
Illustration: 1. You came from MTC, you lost the case. How of its original jurisdiction, you want to raise pure questions of
do you appeal? Appeal to RTC which has jurisdiction over law, you go to SC.
MTC. File a Notice of Appeal. File it in the MTC. Pay the
appellate docket fee to the MTC then the MTC Clerk of Court
will forward it to the RTC including all the records.
CA

3. When is the judgment of MTC appealable to CA and -CA does have original jurisdiction: Annulment of Judgment
not RTC? When MTC exercises its delegated
jurisdiction in cadastral cases, it is an RTC in soul -how to appeal when CA renders judgment? Rule 45 to SC,
and spirit; it is acting as an RTC ^_^ (huwag nyong questions of law only. Do not raise issues of grave abuse of
gamitin sa bar ang soul and spirit) discretion as that is for Rule 65. -now, if you came from
Sandiganbayan, you also go to SC, not CA. Use Rule 45-
Questions of Law. If you use Rule 65 it is not on questions of
FROM RTC law but on Jurisdiction based on grave abuse of discretion
RTC exercises 2 types of jurisdiction: amounting to lack or excess of jurisdiction.

1. Original : when the case is first filed to it Sometimes in Rule 45, SC can deal with questions of fact. One
2. Appellate: when it decides on a case originated from of the exceptions is if the findings of facts of RTC is not the
MTC then appealed to it same with the findings of facts of CA. So SC determines
Illustration: which is accurate.
a. The case was an action for a specific performance. But are there specific rules where a person is authorized to go
Which court has jurisdiction? RTC. Now, RTC to SC on question of facts? Yes. There are exceptional rules.
decides on the case and I lost. How do I Appeal? Use For instance, in a Petition for writ of amparo. Petition for writ
Rule 41. Just like in the MTC, I am going to file a of habeas data. Writ of Kalikasan.
notice of appeal to RTC. I will pay appellate docket
fees also in RTC. That is how to appeal when in the THE RULE ON THE WRIT OF AMPARO
exercise of original jurisdiction.

b. But when the appeal is only on a pure question of law

from the judgment of RTC exercising original
jurisdiction, I dont file notice of appeal. I file a
 Dean Rianos Lecture 2014 38

SECTION 19. Appeal. Any party may appeal from the final Petition for Certiorari, a special civil action (like filing a new
judgment or order to the Supreme Court under Rule 45. The action) To the SC under Rule 64 in re Rule 65.
appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the
date of notice of the adverse judgment. On the other hand, there is a Mode of appeal from CSC to the
The appeal shall be given the same priority as in habeas CA.
corpus cases
THE RULE ON THE WRIT OF HABEAS DATA
SECTION 19. Appeal. Any party may appeal from the The word CTA in Rule 43 is misplaced. RA 9282, CTA now
judgment or final order to the Supreme Court under Rule 45. has an equal rank as that of CA. You do not appeal to a court
The appeal may raise questions of fact or law or both. of equal rank. This is what you do in CTA. The CTA has
divisions. The judgment by division will be elevated to CTA
The period of appeal shall be five (5) work days from the
en banc. Then from en banc you can go to SC under Rule 45.
date of notice of the judgment or final order.
Its like the CA to SC.
The appeal shall be given the same priority as habeas
corpus and amparo cases. Rule 45, SECTION 9. Rule Applicable to Both Civil and
Criminal Cases. The mode of appeal prescribed in this
Rule shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty imposed is
Writ of Kalikasan, Rule 7, SECTION death, reclusion perpetua or life imprisonment. (n)
16.Appeal. Within fifteen (15) days from the - In other words, Rule 45 also applies to criminal cases.
date of notice of the adverse judgment or denial of motion There is only one mode of appeal to the SC as a general
for reconsideration, any party may appeal to the Supreme rule.
Court under Rule 45 of the Rules of Court. The appeal
- There is only one instance when you go to SC by filing a
may raise questions of fact.
notice of appeal to the CA. Rule 124,

RULE 122
Ito ang mga exceptions sa general rule sa Rule 45 na only
Appeal
questions of law.
SECTION 3. How Appeal Taken.
Now you come from administrative bodies or from quasi- (a) The appeal to the Regional Trial
judicial bodies. Is there a mode of appeal therefrom? I am Court, or to the Court of Appeals in
talking about those bodies and agencies enumerated in Rule cases decided by the Regional Trial
43. Need not memorize those or else suffer in mental Court in the exercise of its original
constipation @.@ Where do you go? CA. This appeal on Rule jurisdiction, shall be taken by filing a
43 is called Petition for Review under Rule 43. notice of appeal with the court which
rendered the judgment or final order
Rule 40, MTC to RTC
appealed from and by serving a copy
Rule 41, RTC original to CA (no pure question of law) thereof upon the adverse party.

Rule 42, RTC appellate to CA xxx

Rule 65, questions on jurisdiction. (c) The appeal to the Supreme Court in
cases where the penalty imposed by the
Illustration: Nag-final ka nag administrative case sa Office of Regional Trial Court is death, reclusion
the President. Talo ka dun. Rule 43 to CA. Talo ka sa CA. perpetua, or life imprisonment, or
Punta ka SC under Rule 45 only on questions of law. Talo ka where a lesser penalty is imposed but
sa SC, ano remedy? MR under Rule 52 in re Rule 56. How for offenses committed on the same
many times can you file MR? Only once. Sec. 2 of Rule 52. If occasion or which arose out of the same
MR is directed against judgment, only once. If MR is directed occurrence that gave rise to the more
against interlocutory order, as many times as the judge allows. serious offense for which the penalty of
death, reclusion perpetua, or life
imprisonment is imposed, shall be by
filing a notice of appeal in accordance
Galing ka sa CSC. Talo ka there. Where to go? To the CA with paragraph (a) of this section
under Rule 43. CSC is an independent constitutional
institution together with COMELEC and COA. What is the ||| (Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC
mode of appeal from the judgment of COMELEC and COA? [2000])
There is no mode of appeal but only a mode of review called
 Dean Rianos Lecture 2014 39

From NLRC, is there a mode of appeal? None. But there is a based on both Section 19 ofRepublic Act No. 6770 and
mode of review. Go to CA by Rule 65 not a mode of appeal. Section 36 of Presidential Decree No. 807. Yet, pursuant to
the amendment of Section 9, Batas Pambansa Blg.
1. REMEDIAL LAW; SPECIAL CIVIL 129 by Republic Act No. 7902, all adjudications by the Civil
ACTION; CERTIORARI; REGLEMENTARY PERIOD; Service Commission in administrative disciplinary cases were
SIXTY DAYS DESPITE LAPSE OF THE 10-DAY PERIOD made appealable to the Court of Appeals effective March 18,
FOR FINALITY OF THE DECISION OF THE NLRC. . . . 1995, while those of the Office of the Ombudsman are
the remedy of the aggrieved party is to timely file a motion for appealable to this Court. It could thus be possible that in the
reconsideration as a precondition for any further or subsequent same administrative case involving two respondents, the
remedy, and then seasonably avail of the special civil action proceedings against one could eventually have been elevated
of certiorari under Rule 65, for which said Rule has now fixed to the Court of Appeals, while the other may have found its
the reglementary period of sixty days from notice of the way to the Ombudsman from which it is sought to be brought
decision. Curiously, although the 10-day period for finality of to this Court. Yet systematic and efficient case management
the decision of the NLRC may already have lapsed as would dictate the consolidation of those cases in the Court of
contemplated in Section 223 of the Labor Code, it has been Appeals, both for expediency and to avoid possible conflicting
held that this Court may still take cognizance of the petition decisions.
for certiorari on jurisdictional and due process considerations
3. REMEDIAL LAW; CIVIL PROCEDURE;
if filed within the reglementary period under Rule 65.
JURISDICTION; RULE THAT A CHALLENGE ON
2. ID.; ID.; ID.; MODE OF JUDICIAL REVIEW OVER CONSTITUTIONAL GROUNDS MUST BE RAISED BY A
DECISIONS OF THE NLRC. Therefore, all references in PARTY TO THE CASE; NOT AN INFLEXIBLE RULE.
the amended Section 9 of B.P. No. 129 to supposed appeals Then there is the consideration that Section 30, Article VI of
from the NLRC to the Supreme Court are interpreted and the 1987 Constitution provides that "(n)o law shall be passed
hereby declared to mean and refer to petitions increasing the appellate jurisdiction of the Supreme Court as
for certiorari under Rule 65. Consequently, all such petitions provided in this Constitution without its advise and consent,"
should henceforth be initially filed in the Court of Appeals in and that Republic Act No. 6770, with its challenged Section
strict observance of the doctrine on the hierarchy of courts as 27, took effect on November 17, 1989, obviously in spite of
the appropriate forum for the relief desired. that constitutional prohibition. The conventional rule,
||| (St. Martin Home v. NLRC, G.R. No. 130866, September 16, however, is that a challenge on constitutional grounds must be
1998) raised by a party to the case, neither of whom did so in this
case, but that is not an inflexible rule, as we shall explain.
From the Office of the Ombudsman. There are 2 kinds of cases Since the constitution is intended for the observance of the
handled by the Ombudsman. Administrative/Disciplinary judiciary and other departments of the government and the
cases and Criminal cases. judges are sworn to support its provisions, the courts are not at
liberty to overlook or disregard its commands or countenance
If you lose in the Ombudsman in the administrative case, go to evasions thereof. When it is clear that a statute transgresses the
the CA by Rule 43. authority vested in a legislative body, it is the duty of the
courts to declare that the constitution, and not the statute,
If you lose in the Ombudsman in the criminal case, go to the governs in a case before them for judgment.
SC by Rule 65.
4. ID.; ID.; ID.; THE COURT EX MERO MOTU MAY TAKE
COGNIZANCE OF LACK OF JURISDICTION AT ANY
POINT IN THE CASE WHERE THE FACT IS
1. ADMINISTRATIVE LAW; SECTION 27 OF R.A. 6770; DEVELOPED. While courts will not ordinarily pass upon
OMBUDSMAN ACT OF 1989. We will merely observe constitutional questions which are not raised in the pleadings,
and lay down the rule at this juncture that Section 27 the rule has been recognized to admit of certain exceptions. It
of Republic Act No. 6770 is involved only whenever an does not preclude a court from inquiring into its own
appeal by certiorari under Rule 45 is taken from a decision in jurisdiction or compel it to enter a judgment that it lacks
an administrative disciplinary action. It cannot be taken into jurisdiction to enter. If a statute on which a court's jurisdiction
account where an original action for certiorari under Rule 65 in a proceeding depends is unconstitutional, the court has no
is resorted to as a remedy for judicial review, such as from an jurisdiction in the proceeding, and since it may determine
incident in a criminal action. EScHDA whether or not it has jurisdiction, it necessarily follows that it
may inquire into the constitutionality of the statute.
2. ID.; ADMINISTRATIVE LIABILITY OF PUBLIC
Constitutional questions, not raised in the regular and orderly
OFFICIAL FALLS UNDER THE JURISDICTION OF
procedure in the trial are ordinarily rejected unless the
BOTH THE CIVIL SERVICE COMMISSION AND THE
jurisdiction of the court below or that of the appellate court is
OFFICE OF THE OMBUDSMAN; CASE AT BAR. After
involved in which case it may be raised at any time or on the
respondents' separate comments had been filed, the Court was
court's own motion. The Court ex mero motu may take
intrigued by the fact, which does not appear to have been
cognizance of lack of jurisdiction at any point in the case
seriously considered before, that the administrative liability of
where that fact is developed. The court has a clearly
a public official could fall under the jurisdiction of both the
recognized right to determine its own jurisdiction in any
Civil Service Commission and the Office of the Ombudsman.
proceeding. HCEcaT
Thus, the offenses imputed to herein private respondent were
 Dean Rianos Lecture 2014 40

5. ID.; ID.; ID.; SECTION 27 OF R.A. No. 6770 SPECIFIES constitutional question, especially when the case can be
THAT APPELLATE JURISDICTION OF THE SUPREME decided on other grounds. As a general proposition that is
COURT IS TO BE EXERCISED OVER "FINAL correct. Here, however, there is an actual case susceptible of
JUDGMENTS AND ORDERS OF LOWER COURTS," judicial determination. Also, the constitutional question, at the
COMPOSING THE INTEGRATED JUDICIAL SYSTEM. instance of this Court, was raised by the proper parties,
The very provision cited by petitioner specifies that the although there was even no need for that because the Court
appellate jurisdiction of this Court contemplated therein is to can rule on the matter sua spontewhen its appellate
be exercised over "final judgments and orders of lower jurisdiction is involved. The constitutional question was
courts," that is, the courts composing the integrated judicial timely raised, although it could even be raised any time
system. It does not include the quasi-judicial bodies or likewise by reason of the jurisdictional issue confronting the
agencies, hence whenever the legislature intends that the Court. Finally, the resolution of the constitutional issue here is
decisions or resolutions of the quasi-judicial agency shall be obviously necessary for the resolution of the present case.
reviewable by the Supreme Court or the Court of Appeals, as
specific provision to that effect is included in the law creating
that quasi-judicial agency and, for that matter, any special 9. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF
statutory court. No such provision on appellate procedure is LAWS; SECTION 27 OF R.A. 6770 VIOLATES THE
required for the regular courts of the integrated judicial system CONSTITUTIONAL PROSCRIPTION AGAINST LAWS
because they are what are referred to and already provided for INCREASING THE APPELLATE JURISDICTION OF THE
in Section 5, Article VIII of the Constitution. SUPREME COURT. Taking all the foregoing
circumstances in their true legal roles and effects, therefore,
6. ID.; ID.; APPEALS; THE REVISED RULES OF CIVIL Section 27 of Republic Act No. 6770 cannot validly authorize
PROCEDURE PRECLUDE APPEALS FROM QUASI- an appeal to this Court from decisions of the Office of the
JUDICIAL AGENCIES TO THE SUPREME COURT Ombudsman in administrative disciplinary cases. It
VIARULE 45. Apropos to the foregoing, and as correctly consequently violates the proscription in Section 30, Article
observed by private respondent, the Revised Rules of Civil VI of the Constitution against a law which increases
Procedure preclude appeals from quasi-judicial agencies to the theappellate jurisdiction of this Court. No countervailing
Supreme Court via a petition for review argument has been cogently presented to justify such disregard
on certiorari under Rule 45. This differs from the of the constitutional prohibition which was intended to give
former Rule 45 of the 1964 Rules of Court which made this Court a measure of control over cases placed under its
mention only of the Court of Appeals, and had to be adopted appellate jurisdiction. Otherwise, the indiscriminate enactment
in statutes creating and providing for appeals from certain of legislation enlarging its appellate jurisdiction would
administrative or quasi-judicial agencies, whenever the unnecessarily burden the Court. IDScTE
purpose was to restrict the scope of the appeal to questions of
law. Under the present Rule 45, appeals may be brought 10. REMEDIAL LAW; SUPREME COURT; RULES
through a petition for review on certiorari but only from PRESCRIBED FOR THE PRACTICE AND PROCEDURE
judgments and final orders of the courts enumerated in Section OF LOWER COURTS; TEST WHETHER PROCEDURAL
1 thereof. Appeals from judgments and final orders of quasi- OR SUBSTANTIVE. It will be noted that no definitive line
judicial agencies are now required to be brought to the Court can be drawn between those rules or statutes which are
of Appeals on a verified petition for review, under the procedural, hence within the scope of this Court's rule-making
requirements and conditions in Rule 43 which was precisely power, and those which are substantive. In fact, a
formulated and adopted to provide for a uniform rule of particular rule may be procedural in one context and
appellate procedure for quasi-judicial agencies. EDATSI substantive in another. It is admitted that what is procedural
and what is substantive is frequently a question of great
7. ID.; ID.; JURISDICTION; JURISDICTION OF A COURT difficulty. It is not, however, an insurmountable problem if a
IS NOT A QUESTION OF ACQUIESCENCE BUT AN rational and pragmatic approach is taken within the context of
ISSUE OF CONFERMENT. The submission that because our own procedural and jurisdictional system. In determining
this Court has taken cognizance of cases involving Section 27 whether a rule prescribed by the Supreme Court, for the
of Republic Act No. 6770, that fact may be viewed as practice and procedure of the lower courts, abridges, enlarges,
"acquiescence" or "acceptance" by it of the appellate or modifies any substantive right, the test is whether
jurisdiction contemplated in said Section 27, is unfortunately therule really regulates procedure, that is, the judicial process
too tenuous. The jurisdiction of a court is not a question of for enforcing rights and duties recognized by substantive
acquiescence as a matter of fact but an issue of conferment as law and for justly administering remedy and redress for a
a matter of law. Besides, we have already discussed the cases disregard or infraction of them. If the rule takes away a vested
referred to, including the inaccuracies of some statements right, it is not procedural. If the rule creates a right such as the
therein, and we have pointed out the instances when Rule 45 is right to appeal, it may be classified as a substantive matter;
involved, hence covered by Section 27 of Republic Act No. but if it operates as a means of implementing an existing right
6770 now under discussion, and when that provision would then the rule deals merely with procedure.
not apply if it is a judicial review under Rule 65.
11. ID.; CASE AT BAR. In the situation under
8. ID.; ID.; ID.; THE SUPREME COURT CAN RULE ON consideration, a transfer by the Supreme Court, in the exercise
MATTER SUA SPONTE WHEN ITS APPELLATE of its rule-making power, of pending cases involving a review
JURISDICTION IS INVOLVED. Private respondent of decisions of the Office of the Ombudsman in administrative
invokes the rule that courts generally avoid having to decide a disciplinary actions to the Court of Appeals which shall now
 Dean Rianos Lecture 2014 41

be vested with exclusive appellate jurisdiction thereover, Talo ka sa CA from RTC. Pwede ka bang mag-raise questions
relates to procedure only. This is so because it is not the right of facts and/or mixed questions on facts of law to SC? NO.
to appeal of an aggrieved party which is affected by the law. Questions of law only under Rule 45.
That right has been preserved. Only the procedure by which
the appeal is to be made or decided has been changed. The Nag-file ako ng petition for a writ of amparo sa RTC. Talo
rationale for this is that no litigant has a vested right in a ako. Saan mo iaappeal? Sa SC ka pupunta, yun ang sabi ng
particular remedy, which may be changed by substitution Sec. 19. Can I raise question of facts? Yes. Mga exception
without impairing vested rights, hence he can have none in yan. Same with habeas data and writ of kalikasan.
rules of procedure which relate to the remedy. Furthermore, it
cannot be said that the transfer of appellate jurisdiction to the Mula sa CTA division - CTA en banc SC Rule 45 only
Court of Appeals in this case is an act of creating a new right questions of law.
of appeal because such power of the Supreme Court to transfer
appeals to subordinate appellate courts is purely a procedural All your remedies have been exhausted and you still lost the
and not a substantive power. Neither can we consider such case. Do not commit suicide. Life has to go on, ok? The
transfer as impairing a vested right because the parties have winning party is now going to reap the fruits of his patience
still a remedy and still a competent tribunal to administer that ^_^
remedy. Thus, it has been generally held that rules or statutes
Why does Rule 39 say execution and satisfaction of
involving a transfer of cases from one court to another, are
judgments? Why not only execution? Kasi a judgment may be
procedural and remedial merely and that, as such, they are
satisfied even without execution ^_^ even without a writ of
applicable to actions pending at the time the statute went into
execution, sometimes the losing party is gentleman enough to
effect or, in the case at bar, when its invalidity was declared.
voluntary comply with the judgment. There was a 2002
Accordingly, even from the standpoint of jurisdiction ex
suggested question: is it possible that the parties can still enter
hypothesi, the validity of the transfer of appeals in said cases
into compromise even if there is a judgment already? Yes.
to the Court of Appeals can be sustained. EaHIDC
Thats not contrary to law or morals. There is no law
||| (Fabian v. Desierto, G.R. No. 129742, September 16, 1998) prohibiting it.

Can the court motu proprio issue a writ of execution?

RULE 39, SECTION 1. Execution Upon Judgments or
From Ombudsman, disciplinary case, go to CA under Rule 43. Final Orders. Execution shall issue as a
Then go to SC under Rule 45. <Dean mentioned Rule 124, matter of right, on motion, upon a judgment or order that
Sec. 13(c)> disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal
has been duly perfected. (1a)
Practice tayo: If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin,
From MTC talo ako, punta sa? RTC, Rule 40 on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final
From MTC talo ako, punta sa RTC but natalo utli, punta sa? order or orders sought to be enforced and of the entry thereof,
CA Rule 42 with notice to the adverse party.
Eh kung pure question of law sa SC? Rule 42 pa rin kasi in the The appellate court may, on motion in the same case, when the
exercise of appellate jurisdiction. interest of justice so requires, direct the court of origin to issue
the writ of execution. (n)
MTC RTC R40 - The rule is a motion on execution is not supposed to be
filed before the judgment becomes final and executory.
RTC CA R42
During the pendency of the appeal, you shouldnt file the
CA- SC R45 Pag pumunta ka sa SC, Rule 45 yan! motion.

Galing ka sa MTC, talo ka sa mtc, magfafile ka ng appeal sa Is it possible to have the judgment executed executed pending
RTC? Paano? Notice of Appeal to MTC, pay the fees to MTC appeal? Yes. That concept is the so-called Discretionary
still. Executions.

SECTION 2. Discretionary Execution.

(a) Execution of a judgment or final order pending appeal.
Talo ka sa RTC, anong questions pwede ma-raised papuntang On motion of the prevailing party with notice to
CA? Questions of facts, mixed questions of facts and laws, the adverse party filed in the trial courtwhile it has
questions of law (pwede kasi appellate eh) jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in
 Dean Rianos Lecture 2014 42

its discretion, order execution of a judgment or suspending, modifying, restoring or granting the injunction,
final order even before the expiration of the period receivership, accounting, or award of support.
to appeal. The stay of execution shall be upon such terms as to bond or
After the trial court has lost jurisdiction, the otherwise as may be considered proper for the security or
motion for execution pending appeal may be filed protection of the rights of the adverse party.
in the appellate court.
- The support here is the main action for support and not
Discretionary execution may only issue upon
the support pendente lite. Support pendente lite is a
good reasons to be stated in a special order after
provisional remedy.
due hearing.
(b) Execution of several, separate or partial judgments. A Is there any other judgment immediately executory? Rule 70,
several, separate or partial judgment may be Forcible Entry and Unlawful Detainer SECTION
executed under the same terms and conditions as 19. Immediate Execution of Judgment; How to Stay Same.
execution of a judgment or final order pending If judgment is rendered against the defendant, execution shall
appeal. (2a) issue immediately upon motion, unless an appeal has been
perfected and the defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial Court and
SECTION 3. Stay of Discretionary Execution. executed in favor of the plaintiff to pay the rents, damages,
Discretionary execution issued under the preceding section and costs accruing down to the time of the judgment appealed
may be stayed upon approval by the proper court of a from, and unless, during the pendency of the appeal, he
sufficient supersedeas bond filed by the party against whom it deposits with the appellate court the amount of rent due from
is directed, conditioned upon the performance of the judgment time to time under the contract, if any, as determined by the
or order allowed to be executed in case it shall be finally judgment of the Municipal Trial Court. In the absence of a
sustained in whole or in part. The bond thus given may be contract, he shall deposit with the Regional Trial Court the
proceeded against on motion with notice to the surety. (3a) reasonable value of the use and occupation of the premises for
the preceding month or period at the rate determined by the
judgment of the lower court on or before the tenth day of each
- Execution here is not a matter of right but a matter of succeeding month or period. The supersedeas bond shall be
discretion by the court. But when the judgment has transmitted by the Municipal Trial Court, with the other
become final and executory, execution becomes a matter papers, to the clerk of the Regional Trial Court to which the
of right. action is appealed.
All amounts so paid to the appellate court shall be deposited
Discretionary executions must be founded on good reasons
with said court or authorized government depositary bank, and
stated on the order of the court. The rules do not mention these
shall be held there until the final disposition of the appeal,
good reasons as it is for the judge to determine such.
unless the court, by agreement of the interested parties, or in
Examples: one case involving national marketing corporation.
the absence of reasonable grounds of opposition to a motion to
Subject matter was canned goods. Loser party timely
withdraw, or for justifiable reasons, shall decree otherwise.
appealed. Winner examined the canned goods and discovered
Should the defendant fail to make the payments above
that they were about to expire. So useless na. So winner filed
prescribed from time to time during the pendency of the
motion for execution pending appeal. That is a good reason. appeal, the appellate court, upon motion of the plaintiff, and
Is the giving of the bond by the winner a good reason in itself upon proof of such failure, shall order the execution of the
to justify discretionary execution? No. The bond is only an judgment appealed from with respect to the
additional reason. There must be another good reason aside restoration of possession, but such execution shall not be a bar
to the appeal taking its course until the final disposition
from the bond.
thereof on the merits.
Is the impending insolvency of the loser a good reason for After the case is decided by the Regional Trial Court, any
execution pending appeal? Yes. money paid to the court by the defendant for purposes of the
stay of execution shall be disposed of in accordance with the
By the way, there are judgments that are immediately provisions of the judgment of the Regional Trial Court. In any
executory upon rendition. You can file the (so still have to case wherein it appears that the defendant has been
file) motion without waiting for the 15-day period to lapse. deprived of the lawful possession of land or building pending
SECTION 4. Judgments Not Stayed by Appeal. the appeal by virtue of the execution of the judgment of the
Judgments in actions for injunction, receivership, Municipal Trial Court, damages for such
accounting and support, and such other judgments as are deprivation of possession and restoration of possession may be
now or may hereafter be declared to be immediately allowed the defendant in the judgment of the Regional
executory, shall be enforceable after their rendition and shall Trial Court disposing of the appeal. (8a)
not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal therefrom, - That means the judgment against the plaintiff is not
the appellate court in its discretion may make an order immediately executory.
 Dean Rianos Lecture 2014 43

- Now, how do you prevent the execution of the FD/UD the aforesaid payment to the executing sheriff. The latter shall
judgment?Immediately perfect an appeal and post a turn over all the amounts coming into his possession within
supersedeas bond. the same day to the clerk of court of the court that issued the
writ, or if the same is not practicable, deposit said amounts to
How do you have the judgment are executed? a fiduciary account in the nearest government depository
bank of the Regional Trial Court of the locality.
By the way, not all of the provisions in Rule 39 are for you.
The clerk of said court shall thereafter arrange for the
Some of them are for the sheriff.
remittance of the deposit to the account of the court that issued
SECTION 6. Execution by Motion or by Independent Action. the writ whose clerk of court shall then deliver said payment
A final and executory judgment or order may be executed to the judgment obligee in satisfaction of the judgment. The
on motion within five (5) years from the date of its entry. excess, if any, shall be delivered to the judgment obligor while
After the lapse of such time, and before it is barred by the the lawful fees shall be retained by the clerk of court for
statute of limitations, a judgment may be enforced by action. disposition as provided by law. In no case shall the executing
The revived judgment may also be enforced by motion within sheriff demand that any payment by check be made payable to
five (5) years from the date of its entry and thereafter by him.
action before it is barred by the statute of limitations. (6a) (b) Satisfaction by Levy. If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or
other mode of payment acceptable to the judgment obligee,
Two ways by which the judgment is executed? the officer shall levy upon the properties of the judgment
obligor of every kind and nature whatsoever which may be
1. By motion disposed of for value and not otherwise exempt from
- 5 years from the entry of judgment (date of finality of the execution giving the latter the option to immediately choose
judgment) which property or part thereof may be levied upon, sufficient
2. By action to revive the judgment to satisfy the judgment. If the judgment obligor does not
- After 5 years exercise the option, the officer shall first levy on the personal
- Hasnt been asked in the bar! properties, it any, and then on the real properties if the
- An action different from the original action. personal properties are insufficient to answer for the judgment.
- When the judgment is revived it can be executed again The sheriff shall sell only a sufficient portion of the personal
by motion within 5 years from the entry of that revived or real property of the judgment obligor which has been levied
judgment. After 5 years, you cannot have it executed by upon.
motion, you file another action to revive the judgment.
When there is more property of the judgment obligor than is
- An action to revive the judgment may not be filed in the
sufficient to satisfy the judgment and lawful fees, he must sell
same court which rendered the judgment because the
only so much of the personal or real property as is sufficient to
revived judgment has a cause of action different from the
satisfy the judgment and lawful fees.
original case. Illustration: if the original action is an
action to collect a sum of money of P300K, that is Real property, stocks, shares, debts, credits, and other personal
cognizable by MTC. The 5-year period lapsed, you file property, or any interest in either real or personal property,
an action to revive the judgment and you cannot file that may be levied upon in like manner and with like effects as
in MTC anymore, because the action to revive the under a writ of attachment.
judgment is by itself an action incapable of pecuniary (c) Garnishment of Debts and Credits. The officer may
estimation so you go to RTC. The venue may even levy on debts due the judgment obligor and other credits,
change as the parties may change residences. including bank deposits, financial interests, royalties,
commissions and other personal property not
Now there is one important concept in SECTION capable of manual delivery in the possession or
9. Execution of Judgments for Money, How Enforced. control of third parties. Levy shall be made by serving notice
(a) Immediate Payment on Demand. The officer shall upon the person owing such debts or having in his possession
enforce an execution of a judgment for money be demanding or control such credits to which the judgment obligor is
from the judgment obligor the immediate payment of the full entitled. The garnishment shall cover only such amount as will
amount stated in the writ of execution and all lawful fees. The satisfy the judgment and all lawful fees.
judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of payment The garnishee shall make a written report to the court within
acceptable to the latter, the amount of the judgment debt under five (5) days from service of the notice of garnishment stating
proper receipt directly to the judgment obligee or his whether or not the judgment obligor has sufficient funds or
authorized representative if present at the time of payment. credits to satisfy the amount of the judgment. If not, the report
The lawful fees shall be handed under proper receipt to the shall state how much funds or credits the garnishee holds for
executing sheriff who shall turn over the said amount within the judgment obligor. The garnished amount in cash, or
the same day to the clerk of court of the court that issued the certified bank check issued in the name of the judgment
writ. obligee, shall be delivered directly to the judgment obligee
within ten (10) working days from service of notice on said
If the judgment obligee or his authorized representative is not garnishee requiring such delivery, except the lawful fees
present to receive payment, the judgment obligor shall deliver which shall be paid directly to the court.
 Dean Rianos Lecture 2014 44

In the event there are two or more garnishees holding deposits (c) Three horses, or three cows, or three carabaos, or
or credits sufficient to satisfy the judgment, the judgment other beasts of burden, such as the judgment obligor
obligor, if available, shall have the right to indicate the may select necessarily used by him in his ordinary
garnishee or garnishees who shall be required to deliver the occupation;
amount due; otherwise, the choice shall be made by the (d) His necessary clothing and articles for ordinary
judgment obligee. personal use, excluding jewelry;
The executing sheriff shall observe the same procedure under (e) Household furniture and utensils necessary for
paragraph (a) with respect to delivery of payment to the housekeeping, and used for that purpose by the
judgment obligee. (8a, 15a) cdtai judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one
hundred thousand pesos;
- It can be summarized: the sheriff will go to you with a (f) Provisions for individual or family use sufficient for
writ of execution. He will ask you the amount and the four months;
lawful fees. You have no cash. Sheriff will ask if you
have a check. Remember, the check here could be used (g) The professional libraries and equipment of judges,
in satisfying the judgment. This is different from lawyers, physicians, pharmacists, dentists, engineers,
commercial law that you cannot be compelled to accept a surveyors, clergymen, teachers, and other professionals,
check as payment of the obligation. The rule here is not exceeding three thousand pesos in value;
different because this is not an obligation so the sheriff is (h) One fishing boat and accessories not exceeding the
compelled to accept that check. So wala kang cash nor total value of one hundred thousand pesos owned by a
check, merong properties? Personal properties ang fisherman and by the lawful use ofwhich he earns his
uunahin. If insufficient, pupunta sa real properties. livelihood;
(i) So much of the salaries, wages, or earnings of the
Section 10(c) Delivery or Restitution of Real
judgment obligor for his personal services within the
Property. The officer shall demand of the person
four months preceding the levy as are necessary for the
against whom the judgment for the delivery or
support of his family;
restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the (j) Lettered gravestones;
property within three (3) working days, and restore (k) Monies, benefits, privileges, or annuities accruing or
possession thereof to the judgment obligee; in any manner growing out of any life insurance;
otherwise, the officer shall oust all such persons
(l) The right to receive legal support, or money or
therefrom with the assistance, if
property obtained as such support, or any pension or
necessary, of appropriate peace officers, and
gratuity from the Government;
employing such means as may be reasonably
necessary to retake possession, and place the (m) Properties specially exempted by law.
judgment obligee in possession of such property. Any But no article or species of property mentioned in this section
costs, damages, rents or profits awarded by the shall be exempt from execution issued upon a judgment
judgment shall be satisfied in the same manner as a recovered for its price or upon a judgment of foreclosure of a
judgment for money. mortgage thereon. (12a)
- An action for reconvenyance or in relation to FE/UD.
- Sheryl lost in the case of unlawful detainer. The sheriff - all those enumerated are exempt from execution. The
has a writ of execution. Can the sheriff let her sheriff cannot get them from you. But take note of the
immediately vacate? No. She will be given 3 working last paragraph as that would be the instance when the
days. If afterwards, she hasnt vacated, can the sheriff properties can no longer be considered exempt. Under
file contempt proceedings against her? No. This will not the last paragraph its no longer execution. If they are
be executed by contempt. The sheriff instead will have to going to be recovered because of a foreclosure of
ask the aid of peace officers to let her vacate. Contempt mortgage or because they are the subject of a sale, that is
is not a remedy here. not an execution anymore.

Another important topic is Rule 39, SECTION

TRANSCRIPT 6
16. Proceedings Where Property Claimed by Third Person.
Rule 39, SECTION 13. Property Exempt from Execution. If the property levied on is claimed by any person other than
Except as otherwise expressly provided by law, the following the judgment obligor or his agent, and such person makes an
property, and no other, shall be exempt from execution: affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same
(a) The judgment obligor's family home as provided by upon the officer making the levy and a copy thereof upon the
law, or the homestead in which he resides, and land judgment obligee, the officer shall not be bound to keep the
necessarily used in connection therewith; property, unless such judgment obligee, on demand ofthe
(b) Ordinary tools and implements personally used by him officer, files a bond approved by the court to indemnify the
in his trade, employment, or livelihood; third-party claimant in a sum not less than the value of the
 Dean Rianos Lecture 2014 45

property levied on. In case of disagreement as to such value, the right to the income i.e. rentals, is it the owner or is it the
the same shall be determined by the court issuing the purchaser? Owner = judgment obligor
writ of execution. No claim for damages for the taking or Answer: Rule 39, SECTION 32. Rents, Earnings and
keeping of the property may be enforced against the bond Income of Property Pending Redemption. The purchaser or
unless the action therefor is filed within one hundred twenty a redemptioner shall not be entitled to receive the rents,
(120) days from the date of the filing of the bond. earnings and income of the property sold on execution, or the
value of the use and occupation thereof when such property is
The officer shall not be liable for damages for the taking or in the possession of a tenant. All rents, earnings and income
keeping of the property, to any third-party claimant if such derived from the property pending redemption shall belong to
bond is filed. Nothing herein contained shall prevent such the judgment obligor until the expiration of his
claimant or any third person from vindicating his claim to the period of redemption. (34a)
property in a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate action What if the sheriff does not find any property of the losing
against a third-party claimant who filed a frivolous or plainly party, what is the remedy of the winner? Winner may apply
spurious claim. for an order in the court and the court will order the losing
When the writ of execution is issued in favor of the party to appear before the court so that he will be asked
Republic of the Philippines, or any officer duly representing it, questions about the whereabouts of his property. SECTION
the filing of such bond shall not be required, and in case the 36. Examination of Judgment Obligor When Judgment
sheriff or levying officer is sued for damages as a result of the Unsatisfied. When the return of a writ of execution issued
levy, he shall be represented by the Solicitor General and if against property of a judgment obligor, or any one of several
held liable therefor, the actual damages adjudged by obligors in the same judgment, shows that the judgment
the court shall be paid by the National Treasurer out of such remains unsatisfied, in whole or in part, the judgment obligee,
funds as may be appropriated for the purpose. (17a) at any time after such return is made, shall be entitled to an
order from the court which rendered the said judgment,
requiring such judgment obligor to appear and be examined
Illustration: X v. Y. Y lost in the case. It is the property of Y concerning his property and income before such court or
which should answer for the execution. But the sheriff is before a commissioner appointed by it, at a specified time and
getting a property of Z. That cannot be done. So the remedy place; and proceedings may thereupon be had for the
of Z, not a party to the action, is to file a third-party claim. Not application of the property and income of the judgment
a third-party complaint which is a pleading. The SC calls that obligor towards the satisfaction of the judgment. But no
claim Terceria. judgment obligor shall be so required to appear before
a court or commissioner outside the province or city in which
The third person whose property is taken by sheriff can such obligor resides or is found. (38a)
execute the affidavit. That affidavit is an affidavit of his title - the court can order him to appear so that he will be
or right to the property. He gives a copy to the sheriff, and to examined as to where his properties are, about his
the creditor. The sheriff would not get that property na. The income.
moment the sheriff receives the affidavit, that is terceria, What are the priorities of Rule 39? Sec. 2 and 6. ^_^
representing a third party claim. But the winning party can
defeat the terceria and ask the sheriff to continue levying the
property if the winning party posts a bond. PROVISIONAL REMEDIES
Provisional, because they are not permanent remedies. These
The third person can file a case in order to protect his right. He are remedies you availed of in the meantime the main action is
could file a case against the sheriff. Example: injunction with not yet over, not yet been decided by the courts.
damages against the sheriff. Suppose the Manila court issues What is that prov rem to secure the satisfaction of the
the writ of execution; the sheriff and the third party are from judgment? Preliminary attachment.
QC; and this is a personal action. So third party can file an
injunction in QC court. Now suppose QC Court issue an
injunction order against the sheriff. Is the QC court interfering What is the effect if you do not avail of this preliminary
with the power of Manila Court? No. Because that injunction attachment? Illustration: You sued the defendant for damages.
is not directed against Manila court but against the person of You won the case. Under execution, the sheriff is going to ask
the sheriff and the sheriff is not the court. the loser the amount the judgment.
Sheriff found no property since defendant disposed of it na.
You won but you have an empty victory. So how do you
Now, lets say the property has been taken by the sheriff to
prevent this? When you file a complaint, avail also of
answer for the judgment and it has been sold on execution
preliminary attachment to put the property under custodial
sale. There is a right of redemption within one year from the
legis, under the custody of the court, so that he cannot dispose
registration of the sale (Sec. 28). Suppose that property is one
of it anymore.
that earns income. Within the period of redemption, who has
 Dean Rianos Lecture 2014 46

When you study Rule 57, look very carefully at those not a ground for a writ of prelim attachment. In letter (a),
provisions constantly asked, i.e. Sec. 1 and some parts of Sec. if you are going to ask for that writ and you are
5. Although Sec. 2 and 3 could be potential questions. recovering damages and sum of money, you have to
You cannot ask for a writ of preliminary attachment in all specify the amount which you cannot do in a moral and
cases. The only cases where you can ask for a writ of exemplary damages as they are dependent on judicial
preliminary attachment would be those in section 1. discretion.
- Suppose you specify the amount of money you are trying
RULE 57 to recover, you must specifically allege that the
Preliminary Attachment defendant (a) intended to depart from the Philippines
with (b) intent to defraud. Or you allege those in the
SECTION 1. Grounds Upon Which Attachment May Issue. subsequent letters in that provision.
At the commencement of the action or at any time before - X filed an action to collect sum of money against D. X
entry of judgment, a plaintiff or any proper party may have the alleged that D is on the verge of insolvency. X is now
property of the adverse party attached as security for the asking for a writ of preliminary attachment. Court
satisfaction of any judgment that may be recovered in the granted. Is the court correct? No. Insolvency is not a
following cases: ground for the issuance of the writ of preliminary
(a) In an action for the recovery of a specified attachment. Be careful of these grounds!
amount of money or damages, other than moral and - C sued D for a sum of money. C alleged in his complaint
exemplary, on a cause of action arising from law, that D is about to depart from the Philippines. On that
contract, quasi-contract, delict or quasi-delict against a basis, can the court grant it? No. The allegations were
party who is about to depart from the Philippines with incomplete. It must be shown that his departure was with
intent to defraud his creditors; intent to defraud him.
(b) In an action for money or property embezzled or - Suppose, D borrowed P10M from B. D gave TCT as a
fraudulently misapplied or converted to his own use by collateral. B found out that the TCT was a fraud. B sued
a public officer, or an officer of a corporation, or an me for a sum of money. Can B successfully apply for the
attorney, factor, broker, agent, or clerk, in the writ of prelim attachment? Yes. (d) In an action against a
course of his employment as such, or by any other party who has been guilty of a fraud in contracting the
person in a fiduciary capacity, or for a willful debt or incurring the obligation upon which the action is
violation of duty; brought, or in the performance thereof;
(c) In an action to recover the possession of property - I am the treasurer of the corporation. I embezzled the
unjustly or fraudulently taken, detained or converted, money of the corporation. It filed against me for the
when the property, or any part thereof, has been recovery of the money embezzled and applied for writ of
concealed, removed, or disposed of to prevent its being attachment. I countered in saying that there is no
found or taken by the applicant or an authorized person; showing that I am concealing and removing my property.
Is my defense against the application for the writ, valid?
(d) In an action against a party who has been guilty of a No. With respect to money or property embezzled, it is
fraud in contracting the debt or incurring the obligation enough that it is alleged that you are holding a fiduciary
upon which the action is brought, or in the performance position. It is not necessary to allege that you are
thereof; concealing the property.
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with Could a writ of preliminary attachment be issued without a
intent to defraud his creditors; or hearing, meaning ex parte? Yes. SECTION 2. Issuance and
(f) In an action against a party who does not reside and is Contents of Order. An order of attachment may be issued
not found in the Philippines, or on whom summons may either ex parte or upon motion with notice and hearing by
be served by publication. (1a) the court in which the action is pending, or by
the Court of Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the property in the
- By the way, you can avail also of the writ of preliminary Philippines of the party against whom it is issued, not exempt
action in order to convert the action in personam into an from execution, as may be sufficient to satisfy the applicant's
action quasi-in rem where the defendant is a non-resident demand, unless such party makes deposit or gives a bond as
and is outside the Philippines. hereinafter provided in an amount equal to that fixed in the
- Sample questions: I sued X for damages. And in my order, which may be the amount sufficient to satisfy the
allegations, I was asking for moral damages. I said that X applicant's demand or the value of the property to be attached
is about to leave the Philippines with intent to defraud as stated by the applicant, exclusive of costs. Several writs
me. Based on this, will the court grant my writ of may be issued at the same time to the sheriffs of the
attachment? No. Because you cannot ask for a writ of courts of different judicial regions. (2a)
prelim attachment where the damages you are recovering
- Because if you notify him of the application for the writ,
are only moral and exemplary damages.
he would immediately conceal his property. Thats why
- Can you ask for a writ of prelim attachment in all actions the Rules allowed ex parte application.
in the recovery of sum of money? No. The mere action is
 Dean Rianos Lecture 2014 47

- And you notice that the writ of prelim attachment can be upon its expiration. Failure of the public respondent to
applied for at the commencement of the action. Kung proceed with the principal case may be a ground for an
isabay mo sa pag-file ng action ang pag-apply ng writ of administrative charge.
prelim attachment, wala pang summons yan sa
defendant. Ang effect yan ay ex parte talaga yan. Pero
hindi mo ma-enforce or execute ang writ of attachment if By the way, a writ of preliminary injunction cannot be issued
no prior or contemporaneous service of summons. Kasi without a hearing. Rule 58, SECTION 5. Preliminary
how can you make it effective upon a person who is not Injunction Not Granted Without Notice; Exception. No
yet in the jurisdiction of the court? So issuance does not preliminary injunction shall be granted without hearing and
jurisdiction over the defendant. But the implementation prior notice to the party or person sought to be enjoined. If it
of it requires that the court should have jurisdiction over shall appear from facts shown by affidavits or by the verified
the person of the defendant. application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to
- When you apply for the writ of prelim attachment you
which the application for preliminary injunction was made,
should post a bond. The Attachment Bond.
may issue ex parte a temporary restraining order to be
- If defendant ka, yung properties mo ang inattach, effective only for a period of twenty (20) days from service on
papaano mo madidischarge yung attachment? File a the party or person sought to be enjoined, except as herein
counter-bond. Mawawala ang writ of attachment. provided. Within the said twenty-day period, the court must
- Eh, papaano kung walang counter-bond? Section 13. order said party or person to show cause, at a specified time
Sasabihin mo na yung application nya is not one of those and place, why the injunction should not be granted, determine
cases where attachment is allowed. Or say na his bond is within the same period whether or not the preliminary
not sufficient. Yung counterbond para yun sa mga can injunction shall be granted, and accordingly issue the
afford. Sa mga cant afford, utak ang gagamitin. corresponding order.
However, and subject to the provisions of the preceding
Injunction is a main action. Preliminary injunction is a sections, if the matter is of extreme urgency and the applicant
provisional remedy. There are 2 kinds of preliminary will suffer grave injustice and irreparable injury, the executive
injunction: preliminary, mandatory judge of a multiple-sala court or the presiding judge of a
Illustration: I sued X because by stealth and strategy he single-sala court may issue ex-parte a temporary restraining
occupied my house. Forcible Entry. What is my remedy to order effective for only seventy-two (72) hours from issuance
have possession of the house even before the FE case has been but he shall immediately comply with the provisions of the
finally decided by the court? Avail of a prov rem. Rule 70, next preceding section as to service of summons and the
SECTION 15. Preliminary Injunction. The court may grant documents to be served therewith. Thereafter, within the
preliminary injunction, in accordance with the aforesaid seventy-two (72) hours, the judge before whom the
provisions of Rule 58 hereof, to prevent the defendant from case is pending shall conduct a summary hearing to determine
committing further acts of dispossession against the plaintiff. whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard.
A possessor deprived of his possession through forcible entry In no case shall the total period of effectivity of the temporary
or unlawful detainer may, within five (5) days from the restraining order exceed twenty (20) days, including the
filing of the complaint, present a motion in the action for original seventy-two hours provided herein.
forcible entry or unlawful detainer for the issuance of a
writ of preliminary mandatory injunction to restore him in In the event that the application for preliminary injunction is
his possession. The court shall decide the motion within thirty denied or not resolved within the said period, the temporary
(30) days from the filing thereof. (3a) restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible
without need of any judicial declaration to that effect and
I filed a petition for certiorari against RTC in order to interrupt no court shall have authority to extend or renew the same on
the RTC from proceeding below while the petition for the same ground for which it was issued.
certiorari is pending in CTA, what is my remedy? Rule 65, However, if issued by the Court of Appeals or a member
SECTION 7. Expediting Proceedings; Injunctive Relief. thereof, the temporary restraining order shall be effective for
The court in which the petition is filed may issue orders sixty (60) days from service on the party or person sought to
expediting the proceedings, and it may also grant a temporary be enjoined. A restraining order issued by the
restraining order or a writ of preliminary injunction for the Supreme Court or a member thereof shall be effective until
preservation of the rights of the parties pending such further orders. (5a)
proceedings. The petition shall not interrupt the course of the
principal case, unless a temporary restraining order or a
writ of preliminary injunction has been issued, enjoining the But suppose there is a need to immediately prevent the act of a
public respondent from further proceeding with the case. person and there is no time for hearing, avail of TRO. TRO is
The public respondent shall proceed with the principal case a prov rem within a prov rem. No hearing. Can be issued ex
within ten (10) days from the filing of a petition parte. Its normal decision is 20 days from its issuance. When it
for certiorari with a higher court or tribunal, absent a expires it cannot be extended. That is why the court must
temporary restraining order or a preliminary injunction, or conduct a summary hearing within that 20-day period to
 Dean Rianos Lecture 2014 48

determine whether it can be converted to preliminary What is evidence? Rule 128 Section 1. Evidence defined.
injunction Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Is hte bond mandatory in the issuance of writ of preliminary
injunction? NO. Rule 58, SECTION 4. Verified Application Implications:
and Bond for Preliminary Injunction or Temporary You can only insist the rules of evidence on judicial
Restraining Order. A preliminary injunction or temporary proceedings. You cannot insist the rules of evidence
restraining order may be granted only when: x x x as a matter of right on non-judicial proceedings, i.e.
(b) Unless exempted by the court, the applicant files SEC, NLRC
with the court where the action or proceeding is Purpose of evidence is to ascertain the truth which is
pending, a bond executed to the party or person not necessarily the actual truth; only the legal truth.
enjoined, in an amount to be fixed by the court, to the The truth depending upon the evidence. Evidence
effect that the applicant will pay to such party or depends upon certain rules. c.f. Pp v. Amminudin; Pp
person all damages which he may sustain by v. Mengote;
reason of the injunction or temporary restraining
order if the court should finally decide that the Admissibility of Evidence
applicant was not entitled thereto. Upon - Not all evidences are evidence. Dapat admissible.
approvalof the requisite bond, a writ of preliminary - The most important concept
injunction shall be issued. (4a) - Evidence is admissible when: RELEVANT and
COMPETENT
- The phrase Unless exempted by the court, means that - Relevance is a matter of logic and common sense. When
the court in the exercise of its discretion may not actually it has a relationship to the fact in issue. It must be
require the posting of the bond. responsive.
- Competence is a matter of law and rule. When it is not
excluded by law and rule.
If you want to prevent the property subject of litigation from
being wasted and dissipated during pendency of the action. Sometimes, an evidence may be admitted for various purposes
What remedy to avail? Receivership. There are two bonds the Doctrine of Multiple Admissibility
needed here. A bond for the application of the receiver and
another bond when the receiver takes his oath as a receiver. Sometimes when you present an evidence you cannot
Actually, we call Provisional remedies: the battle of the bonds immediately show its relevance and sometimes it would be
^_^ excluded. So you offer it in evidence under the Doctrine of
Conditional Admissibility. You say, Your Honor, later on I
can show the relationship to the issue of this evidence, please
But there is one provisional remedy to recover personal admit this on the basis of the doctrine of conditional
property for the meantime that the main action is not over. admissibility. Later on you were not able to show the
Replevin. Take note, you cannot ask for the replevin of the relevance, the evidence will be stricken out of the records.
property that is already in custodia legis. It applies to a
personal property capable of manual delivery. You cannot ask Which is stronger? Positive or Negative Evidence? A positive
a replevin of real property. evidence. An assertion is stronger than the denial

What is that prov rem where a bond is not required for its There are concepts you need for MCQ. What is the
application? Support Pendente Lite. jurisprudential name for the facts you should establish to
prove. Factum Probandum.
What is the means to prove the factum probandum? The
Are provisional remedies also available in criminal factum probans. The evidence.
procedures? Yes. Rule 127. RULE 127
There are only 3 major types of evidence:
Provisional Remedies in Criminal Cases 1. Object
SECTION 1. Availability of Provisional Remedies. The 2. Documentary
provisional remedies in civil actions, insofar as they are 3. Testimony
applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action. (1a) The rule is everything you assert must be proven. You must
have evidence. Except on three matters which need not be
proven:
It is not enough that you say something in court you have to 1. Judicial Notice Rule 129
prove what you are asserting or alleging. 2. Judicial Admissions Rule 129
3. Presumptions Rule 131
EVIDENCE.
 Dean Rianos Lecture 2014 49

There are matters which the court should not require evidence, Types of evidence
i.e. matters of mandatory judicial notice. Illustration: Your
honor, I saw the victim fell on the building. The other party It is necessary for us to know whether an evidence is object or
said, objection your honor, move to strike out the evidence documentary because there are some rules of evidence which
because there is no showing that the law of gravity exist apply only to documentary evidence.
@.@ You do not have to prove the laws of nature. It is a
mandatory judicial notice. Rule 130, Section 2. Documentary evidence. Documents as
Section 1. Judicial notice, when mandatory. A court shall evidence consist of writing or any material containing letters,
take judicial notice, without the introduction of evidence, of words, numbers, figures, symbols or other modes of written
the existence and territorial extent of states, their political expression offered as proof of their contents.
history, forms of government and symbols of nationality, the It could be any material not necessarily written paper
law of nations, the admiralty and maritime courts of the world Illustration: a pen. If offered to prove the length, size, shape,
and their seals, the political constitution and history of the or weight of the pen, - object evidence
Philippines, the official acts of legislative, executive and
judicial departments of the Philippines, the laws of nature, the If offered to prove what is written in the pen documentary
measure of time, and the geographical divisions. evidence.

But there are also matters subject to judicial notice but only Illustration: N is the complainant in a sexual assault case. She
discretionary was asked to point at the suspect. W was pointed. W is an
object evidence. Identifying a person makes the person an
Section 2. Judicial notice, when discretionary. A court object evidence.
may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable demonstration, or If the question is, what did you see written on his chest, if
ought to be known to judges because of their judicial any. His chest becomes a documentary evidence.
functions. (1a)
Bar 2006. Can a private document be offered as an object
Can a court take judicial notice that Espana Boulevard near evidence? Yes. Depending on the purpose.
UST gets flooded when it rains? Yes. Common knowledge na.

Again, the importance of knowing between the object and

But the most critical part here is judicial admission. When is documentary evidence is because there are some rules
an admission judicial? applicable to documentary evidence only.
Should it be in writing? No. Can it be oral? Yes. But it must 1. Best evidence Rule.
be an admission in the same case. The phrase same case is 2. Parol Evidence Rule
critical. Illustration: P and D in the RTC Manila, Branch 51, 3. Hearsay Evidence Rule - only on testimonial and
Case No. 10127-14. Incidentally, they are also same litigants documentary evidence
in RTC Manila, Branch 51, Case No. 10128-14. These are 2
different cases. A judicial admission was made in the first
case. That is a judicial admission only in that case. You do not Possible Bar Exam Questions:
have to prove that admission in that case because it becomes Best Evidence Rule
automatic.
If you want to present that admission in the other case, that is Rule 130, Section 3. Original document must be produced;
not a judicial admission. It is an Extra-judicial admission in exceptions. When the subject of inquiry is the contents of a
relation to that other case. It is not a judicial admission, so you document, no evidence shall be admissible other than the
must offer them as evidence first before they become admitted original document itself, except in the following cases:
in the other case. Its not the same case.
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
You cannot contradict a judicial admission. The only way to
contradict is through Rule 129, Section 4. Judicial admissions. (b) When the original is in the custody or under the control of
An admission, verbal or written, made by the party in the the party against whom the evidence is offered, and the latter
course of the proceedings in the same case, does not require fails to produce it after reasonable notice;
proof. The admission may be contradicted only by showing
that it was made through palpable mistake or that no such (c) When the original consists of numerous accounts or other
admission was made. (2a) documents which cannot be examined in court without great
loss of time and the fact sought to be established from them is
Palpable mistake- talagang obvious na nagkamali lang. only the general result of the whole; and
No such admission was made does not mean na hindi mo (d) When the original is a public record in the custody of a
sinabi. That is a mere denial or negative evidence. It is not public officer or is recorded in a public office. (2a)
strong. that is not what I meant, I was quoted out of context.
 Dean Rianos Lecture 2014 50

present the original document. If you cannot present the

Best evidence rule (BER) is the most misunderstood rule original, you have the duty to explain to the court why you
because the phrase best evidence does not actually mean cannot do so, i.e. lost, destroyed, unavailable. Proving and
most superior or highest form of evidence. It is a misnomer. It justifying why you cannot produce the original LAYING
refers only to the quarrel between the original and the THE BASIS, for the presentation of the secondary evidence.
secondary evidence. It means that between the original and the What basis are you going to use? Look at Rule 130, Section 5.
secondary, the original is the best. do not use best evidence When original document is unavailable. When the original
rule if there is no documentary evidence involved. And even if document has been lost or destroyed, or cannot be produced in
there is a document involved but the question is not about the court, the offeror, upon proof of its execution or existence and
content, do not use BER because the document is not a the cause of its unavailability without bad faith on his part,
documentary evidence but an object evidence. The subject of may prove its contents by a copy, or by a recital of its contents
the inquiry must be the contents before you apply the BER. It in some authentic document, or by the testimony of witnesses
is not enough that you have a document. If the question and in the order stated. (4a)
answer do not involve documentary evidence, dont use BER. Are you going to prove that an original exist? That it has been
If theres a document, you must wait about to prove the duly executed? Then you explain its loss, destruction or
contents of the writing. unavailability. You must emphasize that there was no bad
faith! When you have shown all those matters, you have
Illustration: Ace was arrested in a buy bust operation. The successfully laid the basis for the presentation of secondary
drugs were confiscated together with the money involved. evidence. But take not, when you present a secondary
During the trial, the prosecutor, to prove that Ace was evidence you have to do it in the order mentioned in section 5.
involved in the illegal sale of illegal drugs, offered in Start with the copy. Sans copy, then the recital of its contents.
evidence the photocopy of the bills confiscated from him in If not, testimony of witnesses. Do you notice something?
the buy-bust operation. Is the photocopy of the bills object or Testimony of witness could be a secondary evidence where
documentary evidence? To be documentary evidence, it is you cannot present the original. Testimonial evidence could
offered to prove what is written in the document. But take the place of the documentary evidence.
obviously the bills were presented to prove that money was
involved. It wasnt documentary. It was object. Suppose you cannot present the original because the original is
If the objection was that it was not the best evidence. Would in the custody of the adverse party, what are the matters to
you sustain it? Or overrule it? Overrule. You dont apply BER show to lay the basis? The same. It exists, duly executed. And
to an object evidence. (this is very important) you must give reasonable notice. But
despite notice, he was not able to present.
To remember Best Evidence Rule, ask
1. Is there a document involved? If there was, then Dean Rianos Sample Exams of what he asked in his Final
apply. If none, dont apply. Exams.
2. What is the subject of the inquiry? If the contents, Whether or not you apply the Best Evidence Rule
apply. If not, then dont. Formal offer of exhibits
Exhibit 1 photocopy of the deed of sale duly executed
What is the consequence of the rule that if the focal point between the plaintiff and defendant. To prove that P actually
inquiry is the contents of the document, what is the rule? You met the D and they knew each other before, contrary to the
show the original as it is the best evidence as compared to the claim of P that they never met before.
secondary evidence. Plaintiff objected that it was not the best evidence because it
BER originated in England. We borrowed our Rules of was not the original and that there was no laying of the basis
Evidence from US, but US borrowed it from England. Once for the presentation of the copy during the trial. would you
upon a time, there was a quarrel between 2 landowners. P was sustain the objection? No. The BER does not apply here
claiming the land from D. Not so big land though. D said this because the subject of the inquiry is not the contents of the
is mine! I bought it from S. In fact, I have an evidence, the bill document.
of sale. The court said, ok, during the next session, D bring
the bill of sale. Upon hearing, D said I travelled 50 miles,
along the way I passed through the forest, there were robbers, So, in Best Evidence Rule, may documentary evidence ba?
but you know what, i copied it religiously. I left the original in May tanong ba on its contents? Wala eh, eh di wag mong i-
the home. Court denied it, You might have committed a apply.
mistake in copying it, so I need the original that is the origin If meron, i-apply mo then present the original. If walang
of the Best evidence rule the original name of this is the original, i-justify mo kung bakit mo di ma-present. Now if you
Original Document Rule. can show the secondary evidence, what is it? Umpisa ka sa
copy; if none then sa recital of contents; if none then
testimony. Tapos!
If you look at BER, the rule is present the original. However,
there are instances when you are not absolutely obligated to
 Dean Rianos Lecture 2014 51

TRANSCRIPT 7 If this is civil case, if what is alleged is possession but the

In marital privileged information, the prohibition is not only evidence pointed on ownership, objectionable. Possession is
during the marriage but also after the marriage. So even if na- not ownership and ownership is not possession. So always
annulled na ang marriage, no divulging. look at the pleadings. Outside of it is objectionable
When I divulged to my wife that I was the theft, J overheard
me. Can she testify against me over my objection? Yes, she is Admission by Silence.
not my spouse so the prohibition does not apply. Rule 130, Section 32. Admission by silence. An act or
declaration made in the presence and within the hearing or
Lawyers cannot reveal the info given to him by the client. observation of a party who does or says nothing when the act
Even his secretaries, stenographers are prohibited. But the or declaration is such as naturally to call for action or
client can reveal it as he is the holder of the privilege. The comment if not true, and when proper and possible for him to
prohibition is only against the lawyers and his employees. do so, may be given in evidence against him. (23a)

Imagine a lady shouting at the door that I robbed her. If it

Doctors, physicians and surgeons, the prohibition does not werent true, my natural reaction would be to be angry. If I
apply to a criminal case. It only applies in civil cases that dont react, that would be not natural consequence of
would blacken the reputation of the patient. Sec. 24 only innocence. My silence would be admissible in court as
mentions civil cases. admission by silence.

One very important concept in Rule 130 is that concept that There can be no admission by silence if the culprit is under
starts in Section 26. Admission of a party. The act, custodial investigations since he would have the right to
declaration or omission of a party as to a relevant fact may be remain silent.
given in evidence against him. (22)

That section is the beginning of the rule of res inter alios acta. Rule 130, Section 34. Similar acts as evidence. Evidence
that one did or did not do a certain thing at one time is not
res inter alios acta- the first branch- is the combination of Sec. admissible to prove that he did or did not do the same or
26 and Sec. 28 similar thing at another time; but it may be received to prove a
Section 28. Admission by third party. The rights of a party specific intent or knowledge; identity, plan, system, scheme,
cannot be prejudiced by an act, declaration, or omission of habit, custom or usage, and the like. (48a)
another, except as hereinafter provided.
They have to be together sec. 26 + sec. 28 is the statement - Similar acts as evidence is the 2nd branch of res inter
of the res inter alios acta rule. Lets rephrase it. Whatever I alios acta
say/do are admissible against me but not admissible against - This is no longer extrajudicial statement. Already judicial
the others, thats sec. 28. na.
- Use this as an objection because just because you were a
Illustration: I was identified as one of the robbers through the
convict before does not necessarily mean that you are the
CCTV. I was arrested and the media were there. Arnold
criminal in the present case. Also, just because you
Clavio of GMA said, what was your participation in the
didnt do it before, not necessarily mean you cannot do it
robbery? I replied in front of the media and not in court, I
now.
opened the safe. I was with X and Y. My statement was
- Non sequitur it does not follow
extrajudicial as it was not in court. The three of us were
charged with robbery. The prosecution with leave of court - Do not present prior criminal actions or convictions to
presented the video where I implicated myself, x and y. The prove current crime. Change the purpose as stated in Sec.
video was admissible against me. But not admissible against x 34. The specific intent or knowledge; identity, plan,
and y. system, scheme, habit, custom or usage, and the like.

But you will panic if I will repeat that in court as a witness. It Rule 130, Section 36. Testimony generally confined to
is no longer extrajudicial but already a judicial admission. personal knowledge; hearsay excluded. A witness can
That will be admissible against me and against them. The res testify only to those facts which he knows of his personal
inter alios inter acta rule applies only to extrajudicial knowledge; that is, which are derived from his own
statements! perception, except as otherwise provided in these rules. (30a)

- This is the Philippine version of the hearsay rule

Objection is very important. - By the way, A witness testifies only as to facts. He has
Read first the complaint and information. Whatever statement no business testifying on conclusions. It is the court
not stated there is objectionable as it is a violation of the right which is supposed to make conclusions from the facts
to be informed of the nature of his case and cause of testified by the witness. There is only one kind of witness
accusation. allowed to testify on conclusions expert witness
 Dean Rianos Lecture 2014 52

- A witness must testify to those facts which he knows of its not to prove the truth of the statement that indeed it
his personal knowledge. Not on those facts of the rained halo that day.
knowledge of another person. - So, again, look at the PURPOSE!
- Illustration: A murder case. Jose is the accused. The one - Hearsay, as a rule, is not accepted as evidence. But that
who saw the killing was Pedro, the witness. Pedro has to be objected because inadmissible evidence
revealed to Wilfredo what he saw. On the day Pedro was becomes admissible through waiver. But just because it
about to testify, he was riding a horseback going to court is admitted it does not necessarily mean that it will be
when an earthquake shook the horse to fall on the given weight or probative value by the court. But the
opening of the earth and burst. Pedro was never very important rule in evidence, if it is inadmissible you
retrieved. Before he died he already told Wilfredo what must object because it will find itself in the records if
he saw. Wilfredo is now in court and made the following you do not object.
statements: Pedro revealed to me, it was Jose who shot
the victim. Before you conclude WON it is hearsay, you - You also have to object to lay the foundations for a
have to ask the purpose for which the statement was future appeal, in case you lose the case in the trial court,
repeated in court. Wilfredo was asked why he was telling to point out assignment of error in the trial court because
it in court. you cannot for the first time object on appeal (objections
to the evidence must be found in the trial court). If you
- If Wilfredo says that he is saying it to prove that it was point out the errors on appeal without first pointing out
really Jose who killed the victim hearsay. His evidence on trial court, it is already waived.
is not based on his personal knowledge. It was based on - One of the most important purposes of objection is to
someone elses who is not in court to be cross-examined. keep out of the records inadmissible evidence.
The truth of the statement cannot be tested by cross- - Hearsay is not reliable because it is not reliable as the
examination. That failure to cross-examine makes it person who knows the court is outside the court and is
inadmissible. not possible to cross-examine him. And the one who is in
- Hearsay I heard and I said. Hear. Say. I did not see, I court is a person who has no personal knowledge to
only heard. prove the truth of the statement.
- If Wilfredo was saying that it was to tell the court what
he heard from Pedro. But he doesnt know the truth not
a hearsay. Only to show what he heard; whether true or Are there instances where hearsay evidence is admissible?
false, he does not care. And he has personal knowledge Yes. There are exceptions which are also hearsay. But they are
of what he heard but not the truth of it. If relevant, it called admissible hearsay.
becomes an Independent Relevant Statement. Why do the rules admit hearsay evidence by way of
- Whether it is hearsay or not depends on the purpose for admissions? Lets use common sense. We live in a hearsay
which the outside declaration is presented in court. world. Imagine if you demand from us personal knowledge of
- If you are repeating the statement of another who is not everything?! We have no personal knowledge of everything!
in the court, but your purpose is only to tell the court That wouldnt be practicable. We have to rely on the
what he said, but not the truth of it it is not hearsay. It knowledge of someone which is hearsay. For convenience, we
becomes an independent relevant statement, if it is have to admit some hearsay evidence.
relevant.
- Or if the purpose is other than to prove the truth of the Suppose I tell you, meet Jinky, my sister. I call her my sis
statement it is not hearsay. Illustration: W was a because my parents told me shes my sis a family tradition. I
witness in a case where the issue was whether his brother have no personal knowledge coz I wasnt there when she was
was alive at that particular day or not. His brother died manufactured by my parents. But that is admissible
on April 26, 2002. W was asked; did you know whether pedigree. Even if I witness her being delivered in this world,
your brother was alive on April 21? W replied, Yes, I Im not even sure if we have the same parents because I have
spoke to him on that day through the phone as I was in no personal knowledge.
Paranaque and he was in Quezon. W was asked, When
you were conversing, did your brother tell you anything,
if any? Yes, sir. He said, its raining halo in Quezon. If we insist strictly on hearsay rule and on personal
If W repeated his brothers statement in court, is that knowledge, no one could lecture on historical events or
hearsay? Now, look at the purpose. If the purpose is to scientific matters because you have to be there within the rule.
prove that at that day, it really rained halo, thats hearsay How can I lecture on the law on gravity when I am not within
coz W had no personal knowledge. It was his brother the law of gravity? That requires personal knowledge. Lets
who had personal knowledge and who wasnt in court to assume, I am professor of history. I said on March 16, 1521,
be cross-examined. But if the purpose of W was to prove Magellan came here in the Philippines. He delivered his first
the fact that his brother was alive at that day to tell me mass in Limasawa and he first gave this country a name the
the event or that the phone line between Paranaque and Archipelago of St. Lazarus, etc. I was not born at that time.
Quezon was operational or to present to the court the Hearsay, I have no personal knowledge. Imagine the academic
statement he heard from his brother- not hearsay, since disasters that will follow if you insist that the lecturer be one
 Dean Rianos Lecture 2014 53

living on March 16, 1521, etc? How did I learn about it? An one about my death, yes. But the death of someone else, no.
exception (But it can be admitted as part of res gestae)
Learned Treatises that includes authoritative 2. It must be about the cause and circumstances of the
historical books. By necessity, we have to accept death of the declarant.
hearsay evidence.
Common reputations include monuments (i.e. Rizals
When you talk about hearsay evidence, Ill give you an
monument).
example. An American example. W and B were living heirs of
Regular records of the business
F who just died and left a will. F left 100 hectares to B but left
Pedigree
only 100 sq.m. to W. In order to have equal share, W will
Dying declaration prove that the will was not validly executed. W would show
Section 37. Dying declaration. The declaration of a dying that F was of unsound mind at the execution of the will.
person, made under the consciousness of an impending death, Intestacy would have followed. So, in the probate, W would
may be received in any case wherein his death is the subject of prove that F was insane. Ws lawyer asked W as to when the
inquiry, as evidence of the cause and surrounding will was executed. W testified on the circumstances. During
circumstances of such death. the course of conversation F allegedly told W a secret that it
was not Neil Armstrong who went to the moon and that it was
An unwritten element here is that the declarant must have died F. F confessed allegedly that F was the last bf of Marilyn
because if he had not died he is the one who will testify. This Monroe and that Margaret Thatcher was his gf. If W would
started in England. H and W lived in a big house together for present the statement the truth of those statement, that would
30 years who never touched each other. But if they go out of be hearsay. If W would present those statement to prove that
the house, they are a model of perfect marital bliss, very sweet such statement was made to prove his unsound mind, it
but only for a show. In the house, they would separate. One wouldnt be hearsay.
night, H went to the library in their house to get a book, W
also did the same. They quarrelled. 3 shot guns were heard.
The maids went to the sala and saw H soaked in his own Rule 130, Section 42. Part of res gestae. Statements made
blood. Police came and bent over H. Hs chest was ripped by a person while a starting occurrence is taking place or
open and his intestines were open. Police asked H and H immediately prior or subsequent thereto with respect to the
pointed to W sitting on the sofa calmly smoking the cigarette. circumstances thereof, may be given in evidence as part of res
W said, you are the policeman you figure it out. H gestae. So, also, statements accompanying an equivocal act
whispered to police, my wife shot me. When W was sued for material to the issue, and giving it a legal significance, may be
parricide, the issue was can the polices testimony that the received as part of the res gestae. (36a)
dying admission be admitted in evidence. The lawyer argued
that if you are at the point of death and are going to meet the Res gestae is the event. The statements describing the events
Creator, are you going to meet Him with black line of your are the parts of a res gestae. These are statements made
lips? No. When the guy was conscious of his impending death immediately before, during, after a startling event. The one
and he declared a statement. In most probability he was going who made the statement is not testifying in court hearsay.
to tell the truth. We have to admit hearsay - Dying declaration The one who heard it is testifying.
as an exception. Because it was admitted as part of
presumption that a dying man would not tell a lie. Remember, Illustration: W witnessed and shouted Tamano just shot
this was 300 years ago when the moral values of people were Villanueva! then 3 shots were heard. W saw it. W should
strong. But now? have testified in court but he cannot do so since he migrated in
Nevertheless, dying declaration is still an admissible hearsay. US. Instead, N testified in court that she heard W shouting that
Elements: Tamano shot Villanueva. Rules presumed that N said the truth.
When N was influenced by an excitement of an event, there is
1. Consciousness of Impending Death impels a person no room for fabrication or telling a lie. There is Reliability.
to tell the truth. That is the philosophy of the rule.

Statements accompanying an equivocal act material to the

Let us suppose the person who was dying actually survived. issue, and giving it a legal significance, may be received as
He is the most competent person to testify. But he cannot do part of the res gestae. (Never been asked in the bar)
so since he is paralyzed and he cannot talk. Can his
declaration be admitted as evidence? Yes. But not as a dying Illustration: Money was handed to C. It meant nothing. The
declaration but as a res gestae as it was uttered in a startling statement accompanying it will be part of res gestae and will
event. give it meaning. If I give it without saying anything, it doesnt
mean anything. But if I say that I pay it for my debt. It means
that I have debt. If I say that I gave it as a token of love, that is
Suppose a person asked you, who shot you? And you part of res gestae. Or it could be a bribery or a loan.
answered Jonathan Capanas shot me and Sir I am going to go
any moment now. That dead person beside me is also shot by
Jonathan Capanas. Are these dying declarations? Not all. The Remember that in dying declaration, the one testifying is not
the dead!
 Dean Rianos Lecture 2014 54

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
Section 48. General rule. The opinion of witness is not
admissible, except as indicated in the following sections. (42)
Character evidence is generally inadmissible. There are
Generally, an ordinary witness cannot give his opinions. One exceptions such as in civil cases where the character is the
who can give are the experts. There are exceptions where issue i.e, cases involving damages on the ground fraud (which
ordinary witness can give opinions: involves character).
Section 50. Opinion of ordinary witnesses. The opinion of
a witness for which proper basis is given, may be received in Illustration. In a criminal case, the prosecution called the first
evidence regarding witness, N. The question was whether N knew the accused. N
replied that yes since the accused was his neighbour for 20
(a) the identity of a person about whom he has adequate years. N observed that the accused is quarrelsome and violent.
knowledge; If you were the defense, are you going to object? Yes. That
character evidence is not admissible. The prosecution cannot
(b) A handwriting with which he has sufficient familiarity; and prove the bad character of the accused in its evidence in chief.
It can only do so during rebuttal. The prosecution must wait
(c) The mental sanity of a person with whom he is sufficiently for the accused to talk about his good character then the
acquainted. prosecution can answer back that its not true and that the
accused is bad.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person
In practice though, if you are a prosecutor, just prove his bad
character in the evidence in chief. If he does not object it will
Rule 132, Section 22. How genuineness of handwriting be found in the record. Tira lang ng tira! Inadmissible
proved. The handwriting of a person may be proved by any evidence becomes admissible when the objection is waived.
witness who believes it to be the handwriting of such person
because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been TRANSCRIPT 8
charged, and has thus acquired knowledge of the handwriting The prosecution has no right to put in issue the character of
of such person. Evidence respecting the handwriting may also the accused. The prosecution must wait until the accused put
be given by a comparison, made by the witness or the court, himself in issue his character.
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. (23a) The accused can prove the bad character of the victim. An
exception to this is in sexual abuse shield rule. The accused in
- There is no mention of an expert here a sexual child abuse case cannot prove the sexual propensity
- An experts testimony is helpful but not indispensable. of the child.

You can testify as to whether he was happy or sad at that time. Remember, the accused has always the right to prove his
Bar 2006. Sec. 48-50, Rule 130 moral character. The moment he does that, he opens the door
for the prosecution to rebut the goodness of his character.
Section 51. Character evidence not generally admissible;
exceptions:
Lets go back a bit in Rule 130. Section 27. Offer of
(a) In Criminal Cases: compromise not admissible. In civil cases, an offer of
compromise is not an admission of any liability, and is not
(1) The accused may prove his good moral character which is admissible in evidence against the offeror.
pertinent to the moral trait involved in the offense charged.
In criminal cases, except those involving quasi-offenses
(2) Unless in rebuttal, the prosecution may not prove his bad (criminal negligence) or those allowed by law to be
moral character which is pertinent to the moral trait involved compromised, an offer of compromised by the accused may be
in the offense charged. received in evidence as an implied admission of guilt.
(3) The good or bad moral character of the offended party may A plea of guilty later withdrawn, or an unaccepted offer of a
be proved if it tends to establish in any reasonable degree the plea of guilty to lesser offense, is not admissible in evidence
probability or improbability of the offense charged. against the accused who made the plea or offer.
(b) In Civil Cases: An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in evidence
Evidence of the moral character of a party in civil case is as proof of civil or criminal liability for the injury. (24a)
admissible only when pertinent to the issue of character
involved in the case.
 Dean Rianos Lecture 2014 55

TN: An offer to compromise in a civil case will have no effect The disputable presumption are only temporary presumptions.
on the party offering the compromise. It will not even result The other name for this is rebuttable presumption or prima
in an admission of liability. facie presumption. The way to rebut this is to use clear and
But in a criminal case, it is an implied admission of guilt. But convincing evidence.
there is one type of felony where an offer of compromise is
not an admission of guilt. That is in criminal negligence or in The words clear and convincing evidence is not even found in
cases allowed by law to be compromised (i.e BP 22, the Rules. It is found in jurisprudence.
negligence cases)
"Clear and convincing evidence" should be used in
granting bail in extradition cases. This standard should be
Illustration: if I offered to pay your hospital bills, it will not be lower than proof beyond reasonable doubt but higher than
an admission of liability, otherwise you would be preventing a preponderance of evidence.||| (Government of Hongkong
person from doing a humanitarian act. The Good Samaritan Special Administrative Region v. Olalia, Jr., G.R. No. 153675,
Rule. It does not have negative implication of liability. April 19, 2007)
There are however presumptions found in substantive law i.e.
In US, there was a case where the guest of a hotel stepped on that the contract is supported by sufficient consideration; that
the staircase which eventually broke up and the guest was there is cause in the contract; that the later instalment has been
injured. The hotel immediately fixed the staircase. The issue paid, it is presumed that the earlier instalment has been paid;
was whether the act of the hotel was an admission of liability. that when the principal is paid, it is presumed that the interest
No, because if you would consider it as an admission no one was also paid.
would repair the staircase if repairing it would mean liability. There is also a Constitutional presumption that every person is
presumed innocent of the crime unless otherwise proven.
There are certain concepts in Rule 131 that you should know. In transportation law, Art.1756 and Art. 1735.
The most important concept there is the Presumption. No need
to memorize! Just go over them. What I am interested is the A presumption dispenses with proof. Illustration: A passenger
conclusive presumption in Sec. 2 which was based on the boarded a bus from Monumento in Kalookan to Makati. On
doctrine of estoppel. the way, it collided with a dump truck and the pax died. The
only child of the dead pax sued the bus company for the death
Section 2. Conclusive presumptions. The following are of his father. He was only able to prove that his father was a
instances of conclusive presumptions: pax and that he died. The bus company filed a demurrer to
evidence on the ground that under the facts and the law he has
(a) Whenever a party has, by his own declaration, act, or no right to relief as he was not able to prove the negligence of
omission, intentionally and deliberately led to another to the common carrier. Rule on the Demurrer to Evidence.
believe a particular thing true, and to act upon such belief, he Denied! There is here a presumption of negligence on the part
cannot, in any litigation arising out of such declaration, act or of the common carrier. No need to prove the negligence.
omission, be permitted to falsify it: Negligence is the fave topic in remedial law!

(b) The tenant is not permitted to deny the title of his landlord Take note of A cause action based on breach of contract.
at the time of commencement of the relation of landlord and Whatever that contract is, you have no obligation to prove the
tenant between them. (3a) negligence of the defendant because in a common carrier
situation, negligence is presumed. But if it is a private carrier,
The clear example is letter (a) is in Corporation Code, Section negligence is not presumed. But you dont have to prove
21. Corporation by Estoppel. negligence as it is not an element in a breach of contract.
There are only 2 elements on a suit based on breach of
The Court ruled that having reaped the benefits of the contract contract: 1) existence of contract; 2) breach of contract. This is
entered into by Chua and Yao, with whom he had an existing true in all cases of breach of contract.
relationship, petitioner Lim is deemed a part of said Take note of the definitions! I.e. Burden of proof in Rule 131.
association and is covered by the doctrine of corporation by In civil case, who has the burden of proof? Plaintiff or
estoppel. The Court also ruled that under the principle of defendant? Both! Plaintiff to prove his claim. Defendant to
estoppel, those acting on behalf of a corporation and those prove his defense. But in criminal case, the burden is on the
benefited by it, knowing it to be without valid existence, are prosecution. An accused is convicted on the strength of the
held liable as general partners. evidence of prosecution and not on the weakness of the
||| (Lim Tong Lim v. Philippine Fishing Gear Industries, Inc., defense.
G.R. No. 136448, November 03, 1999)
Dean Rianos advice: If youre the counsel in a civil case, file
Estoppel cannot be rebutted. It is conclusive and permanent in a series of written interrogatories. If it is ignored, Sec. 5 of
Sec. 2. Rule 29 applies.
 Dean Rianos Lecture 2014 56

SECTION 5. Failure of Party to Attend or Serve Answers. (1) To be protected from irrelevant, improper, or insulting
If a party or an officer or managing agent of a party wilfully questions, and from harsh or insulting demeanor;
fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve (2) Not to be detained longer than the interests of justice
answers to interrogatories submitted under Rule 25 after require;
proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that (3) Not to be examined except only as to matters pertinent to
party, or dismiss the action or proceeding or any part thereof, the issue;
or enter a judgment by default against that party, and in its
discretion, order him to pay reasonable expenses incurred by (4) Not to give an answer which will tend to subject him to a
the other, including attorney's fees. penalty for an offense unless otherwise provided by law; or

(5) Not to give an answer which will tend to degrade his

Use this as gulpi de gulat! Haha! reputation, unless it to be the very fact at issue or to a fact
from which the fact in issue would be presumed. But a witness
Diba minsan, I am the counsel of the plaintiff, I can sometimes
must answer to the fact of his previous final conviction for an
ask the adverse party to be my witness. He can refuse. The
offense. (3a, 19a)
court will say, you be a witness. But he can refuse since I did
not send him interrogatories before. Without giving him Illustration: there is a civil case for collection of sum of money
written interrogatories I cannot compel him to be my witness in the trial court. One of the defendants witnesses is X. On
and I cannot have his depositions taken pending appeal. cross-exam X was asked whether he hasnt paid his debt (not
evidenced by any promissory note) to the plaintiff. X didnt
Or you may avail of Rule 26, Request for Admission of answer. Can he be required to answer the question? That is
certain facts or documents. No form there. This can be before covered by first phrase of Sec. 3. He should be made to
or during pre-trial. If he does not reply, the matters you answer even if his answer could establish a claim against him.
wanted to be admitted by him are deemed admitted. He cannot invoke the right against self-incrimination as his
answer would not expose him to criminal offense. Constitution
provides that no person shall be imprisoned for non-payment
As of July 13, 2004, Rules 25 and 26 are mandatory. of debt. The court can cite you in contempt if you wont
answer. But if your answer would subject you to criminal
offense, you cannot be compelled. That is sec. 3(4).
Burden of proof- fixed on a party.
Burden of evidence not fixed. It is a jurisprudential term.
During the course of trial youll find that the defendant has I have a wintess. I asked him, isnt it that 2 months ago you
presented convincing evidence. And I have the duty to pointed a gun to B? can he refuse to answer? Yes. Because
overcome that evidence as the trial goes on. That obligation to that will expose him to grave threat, a crime.
overcome his evidence is the burden of evidence. And in the
next hearing I will present my own evidence stronger than his Briefly, lets talk about right against self-incrimination. It
evidence. She has the burden of evidence to disprove my refers only to a right against testimonial compulsion. It does
claim. It moves as the trials shifts. But the burden of proof is not refer to a right to prevent an examination on your body. If
fixed. Your claim is fixed. Your defense is fixed. You have the court orders you to submit into physical exam, you cannot
the burden of proof to prove your claim. Bar 2004. refuse. Villaflor v. Summers; but c.f. Beltran v. Samson
cannot be compelled to produce handwriting.
If you are the plaintiff and you were not able to live up to your
burden of proof, you were not able to prove it. She is going to There is a difference between the right against self-
file a demurrer of evidence because of the insufficiency of my incrimination of the accused and that of the witness.
evidence.
When the accused invokes this right, he can totally refuse to
sit on the stand.
Also distinguish competent witness from credible witness; But a witness does not have such that right. He must go to
question of law and question of fact. court and sit on the stand. He can only invoke this right when
the questions are asked. He has to wait for the question.
Rules on witnesses are kalat sa Rules
Rule 130, Sec. 20 What is the quantum of proof required in criminal cases?
Rule 132, Sec. 3 Proof beyond reasonable doubt. It does not mean absolute
certainty. It means moral certainty
Section 3. Rights and obligations of a witness. A witness
must answer questions, although his answer may tend to Civil cases- preponderance evidence
establish a claim against him. However, it is the right of a Administrative case substantial evidence.
witness:
 Dean Rianos Lecture 2014 57

Leading questions by evidence of his bad character. Look at section 11, you do
Because of the insistence of judicial affidavit rule you no not see the word character there; it is reputation. Why cant
longer use direct examination. But you can still object to you impeach a person because of his character? Because in
leading questions. sec. 51 of rule 130, character evidence is inadmissible. This is
how to analyze rules.
When is a question leading? A question that suggests the
answer to the witness. What can you say about his reputation in your community?
Leading questions are not allowed in direct examination, it is (she is competent coz we already established that she knew
as if it is not the witness who testifies but the lawyers. But him very well) she replied that the accused is very
leading questions are allowed in cross-examination. In fact it quarrelsome. If you are the counsel of the other party, would
is the best question in the cross-examination since the you object to strike the testimony out of the records? Yes. The
intention there is to paint a picture in the mind of the court of reputation about what she said quarrelsome, is not the
your version of what has happened. Again, leading questions reputation you use to impeach. It must be about integrity,
are not allowed in direct examination unless it is preliminary, honesty and truth. Not being about quarrelsome and
witness is a child or immature or an adverse witness. aggressive. That is how to study the rules.

Misleading questions when it assumes some things when 3. Evidence of particular wrongful acts that he has been
not yet in the record; assumes a fact not yet in evidence. There convicted of an offense.
is an assumption. Tell me if this is a correct impeachment,
Kristin Gudian is the witness of the other party. As counsel I
In law, do not assume. Whenever you say something, it must asked her, There was a Kristin Gudian who was arrested last
be with evidence. We only conclude when there is evidence. week for robbing a 99-year old man. Are you the same Kristin
The first thing you ask is, Do you have an evidence? Gudian? She did not answer. And also after that there was a
Kristin Gudian arrested for robbing Metrobank. I am trying to
impeach her. What is your objection? Look at sec. 11. You
How do you impeach a witness? cannot impeach a witness by evidence of particular wrongful
Impeaching a witness means destroying the credibility of a act. The only particular wrongful act you can use is when that
witness so that his testimony will not be believed. There are act already amounted to conviction. But if it did not amount to
two aspects: 1) the witness the messenger; 2) what he is conviction, you cannot use that to impeach the witness
talking the message. The messenger may be credible but his
message may be not. So to destroy the message is to destroy
4. Prior inconsistent statement
the messenger.
- evidence that he has made at other times statements
inconsistent with his present, testimony
Rule 132, Section 11. Impeachment of adverse party's witness. For example, after the incident, you testified and told the
A witness may be impeached by the party against whom he criminal investigator that it was the plaintiff who tried to beat
was called, by contradictory evidence, by evidence that his the red light. But during the trial, you said that it was the
general reputation for truth, honestly, or integrity is bad, or by defendant who tried to beat the red light. How do you impeach
evidence that he has made at other times statements the witness here? First use the sec. 13.
inconsistent with his present, testimony, but not by evidence
of particular wrongful acts, except that it may be shown by the Section 13. How witness impeached by evidence of
examination of the witness, or the record of the judgment, that inconsistent statements. Before a witness can be impeached
he has been convicted of an offense. (15) by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be
Let us summarize this: related to him, with the circumstances of the times and places
1. Contrary evidence and the persons present, and he must be asked whether he
2. Evidence that his general reputation for truth, made such statements, and if so, allowed to explain them. If
honestly, or integrity is bad the statements be in writing they must be shown to the witness
before any question is put to him concerning them. (16)

Lets say last week, the witness for the prosecution testified Give the witess the chance to explain sec. 13 is in
against the accused. After prosecution presented his witnesses, jurisprudence called, Laying the Predicate. So you must ask
I will now present the witness for the accused to destroy the the witness first whether she said it or not and ask her to
star witness of the prosecution. In the course of examination, explain. A witness is also given due process. Sec. 13 applies
the counsel for the accused laid the basis that its witness knew when the mode of impeachment is a prior inconsistent
very well the prosecution witness. Then the defendants statement.
counsel asked, What can you say of the character of the other
witness? She says, very bad. It is the duty of the prosecution to
move to strike out her statement. You dont impeach a witness
 Dean Rianos Lecture 2014 58

By the way, when you cross-examine a person, the modern Our local name for Tender of excluded evidence. OFFER
way of cross-examination is not to let the witness know that OF PROOF.
you are exposing his lies. Example: Ace is a witness in a It is not offer of exhibits or offer of evidence. It is offer of
stabbing. During the cross-examination: Ace, I admire you for proof. In the Philippines, you only summarize the testimony
the details you mention during the direct exam. Let me ask and have it on record. Do not panic if the court does not allow
you some questions. Is it not that you testify that the event your witness to testify. If it is a document or object
happened in 9pm? Yes sir. And you saw what happened disregarded by the court, have it attached to the records of the
exactly and very clearly as the killing happened beneath a well case.
lighted electric post? Yes sir. And I figure you remember
some details, right? Yes sir. Have you remembered that it was
a knife that was used in killing the victim? Yes sir. And I Is an extrajudicial confession sufficient for conviction? No.
know that you remember the color of the handle of the knife? Unless corroborated by evidence corpus delicti (elements of
Yes sir. What is the color? Black sir. And I know that you also the crime). Circumstantial evidence could convict in homicide
remember the length of the knife used. Was it around 6 or murder. But in drug cases, no conviction if you do not show
inches? More than 6 inches sir. And you remember what the the drug.
assailant was wearing, what was it, maong or dress pants? Section 4. Circumstantial evidence, when sufficient.
Maong sir. And you remember the brand of the maong? Yes
Circumstantial evidence is sufficient for conviction if:
sir, levis. What was the shoes he was wearing and the color?
Addidas sir, white. The shirt? White sir. What was written on
(a) There is more than one circumstances;
the shirt? Yes sir, no fear.
In your memorandum or oral argument, try to remind the court (b) The facts from which the inferences are derived are
that she is lying. When you see a startling occurrence like a proven; and
gore stabbing, you do not remember the details like the brand
of the shoes. You do not pay attention to the brand of the (c) The combination of all the circumstances is such as to
pants, to the color of the shirt. She knows too much details.
produce a conviction beyond reasonable doubt. (5)
The person who saw a startling stabbing incident only sees the
general act of stabbing. How can she see the handle when it
was covered with the hands? When she knows a lot of details, CRIMINAL PROCEDURE
that is too good to be true. A witness who is not lying In studying Crim Pro, the first thing in your mind is, how does
sometimes do not remember some details. But a witness who this differ from Civ Pro?
never remembers anything is also telling a lie. Criminal Procedure Civil Procedure
The court shall consider no evidence that has not been offered. cause of action belongs to the cause of action belongs to a
When I ask the court that this deed of sale be considered as People of the Philippines private individual natural or
Exhibit A, the court will say, mark it! Under the present rules, juridical person
the marking is done in pre-trial. If it is marked later in the trial,
you can object. The court then will use its discretion whether Offended party is a Star
to allow it or not. That is the effect of the july 13, 2004 witness of the People of the
amendments on the pre-trial. Philippines
But let us suppose that the court allows the marking. The Most of the provisions of the
marking of the evidence does not make the evidence as bill of rights are rights of the
evidence. It is only identified but not yet evidence. It has to be accused. To level the playing
formally offered. How? A formal offer of exhibit. Your honor, field.
my first exhibit is exhibit A a deed of sale. To prove your Criminal and civil liability. Civil liability
honor that the amount of the sale is P500K and not P50K. It is Art. 100 RPC when there is a
a Xerox copy. Objection, not best evidence. Your answer? private offended person
Your honor, I already previously laid the basis for the
Arrest There is no process of arrest
presentation of the secondary evidence the Xerox. It was
in civil case. But, if cited in
proven that the original copy was lost without my bad faith.
direct contempt, he can be
The court would say, sustain.
arrested as it becomes a
criminal contempt.
What will you do if your witness is not allowed to testify or Preliminary investigation No Preliminary
your exhibits are not admitted by the court? Rule 132, Section investigation.
40. Tender of excluded evidence. If documents or things Bail No Bail concept
offered in evidence are excluded by the court, the offeror may
Arraignment No arraignment
have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record Motion to quash No motion to quash. But
there is motion to dismiss
the name and other personal circumstances of the witness and
the substance of the proposed testimony. (n) Pre-trial Pre-trial
 Dean Rianos Lecture 2014 59

Trial Trial Their authority to conduct preliminary investigations shall

Judgment Judgment include all crimes cognizable by the proper court in their
respective territorial jurisdictions. (2a)
Motion for New Trial/Motion Motion for New Trial/Motion
for Reconsideration for Reconsideration
What if there is NO NEED FOR A PRELIMINARY
- look at the grounds! INVESTIGATION?
Neypes Ruling in Yu v. Tatad Nepes Ruling 1. Filing of the complaint before the prosecutor
Rule 127. Provisional Provisional Remedies - Depending on the location. There are places in the
Remedies Philippines like in manila and in other chartered cities
Searches. Rule 126 No Searches which require that every case whether for PI or not
should pass the Office of the Prosecutor. In cases where
Aspects of Jurisdiction Aspects of Jurisdiction: there will be no PI, the prosecutor will only examine the
jurisdiction over the jurisdiction over the affidavits and documents of the complainant. It will not
subject matter (the subject matter give notice to the respondent. The prosecutor will
offense) jurisdiction over the consider the evidence of the complainant and on that
jurisdiction over the parties basis file an information in court.
territory jurisdiction over the - Rule 112, SEC. 3. Procedure. The preliminary
jurisdiction over the issues investigation shall be conducted in the following
person of the jurisdiction over the manner:
accused res
(a) The complaint shall state the address of the
respondent and shall be accompanied by affidavits of the
complainant and his witnesses, as well as other
Venue is jurisdictional Venue is not jurisdictional
supporting documents to establish probable cause. They
When the venue is improper, When the venue is improper, shall be in such number of copies as there are
the ground for MTQ is lack the ground for MTD is respondents, plus two (2) copies for the official file. The
of jurisdiction. improper venue. affidavits shall be subscribed and sworn to before any
Institution of the action is Institution of the action is prosecutor or government official authorized to
through Rule 110 through filing of the administer oath, or, in their absence or unavailability,
complaint before a notary public, each of whom must certify that he
Depends on whether or not a personally examined the affiants and that he is satisfied
preliminary investigation is
that they voluntarily executed and understood their
required. affidavits.
- Rule 112, SEC. 8. Cases not requiring a preliminary
Rule 115, Rights of the accused investigation nor covered by the
Rule on Summary Procedure.
Does the defendant in a civil case has the right to speedy trial?
- (a) If filed with the prosecutor. If the complaint is
No. It is only speedy disposition of case. A speedy trial is a
filed directly with the prosecutor involving an offense
right on the criminal case.
punishable by an imprisonment of less than four (4)
The public cannot invoke the right to speedy trial. Only the years, two (2) months and one (1) day,
accused can invoke this. the procedure outlined in section 3(a) of this Rule shall
be observed. The prosecutor shall act on the complaint
based on the affidavits and other supporting documents
A criminal case requires preliminary investigation:
submitted by the complainant within ten (10) days from
Imposable penalty (not the penalty actually impose) its filing.
at least 4 years, 2 months, 1 day.
- Less than that, theres no need for preliminary
investigation
2. Filing of the complaint/information before the
MTC.
If the case requires a preliminary investigation, a complaint is - But if the place does not require the passing of the complaint
filed before the proper officer for purposes of preliminary to the prosecutor, go to Rule 112, Section 8 (b) If filed with the
investigation. Who are these officers? of Rule 112. SEC. 2. Municipal Trial Court. If the complaint or information is
Officers authorized to conduct preliminary investigations. filed with the Municipal Trial Court or Municipal Circuit Trial
The following may conduct preliminary investigations: Court for an offense covered by this section, the procedure in
(a) Provincial or City Prosecutors and their assistants; section 3(a) of this rule shall be observed. If within ten (10)
(b) National and Regional State Prosecutors; and days after the filing of the complaint of information, the judge
finds no probable cause after personally evaluating the
(c) Other officers as may be authorized by law. (i.e. legal evidence, or after personally examining in writing and under
officers of COMELEC, PCGG, Ombudsman) oath the complainant and his witnesses in the form of
 Dean Rianos Lecture 2014 60

searching questions and answers, he shall dismiss the same. (b) Within ten (10) days after the filing of the complaint, the
He may, however, require the submission of additional investigating officer shall either dismiss it if he finds no
evidence, within ten (10) days from notice, to determine ground to continue with the investigation, or issue a subpoena
further the existence of probable cause. If the judge still finds to the respondent attaching to it a copy of the complaint and
no probable cause despite the additional evidence, he shall, its supporting affidavits and document.
within ten (10) days from its submission or expiration of said The respondent shall have the right to examine the evidence
period, dismiss the case. When he finds probable cause, he submitted by the complainant which he may not have been
shall issue a warrant of arrest, or a commitment order if the furnished and to copy them at his expense. If the evidence is
accused had already been arrested, and hold him for trial. voluminous, the complainant may be required to specify those
However, if the judge is satisfied that there is no necessity for which he intends to present against the respondent, and these
placing the accused under custody, he may issue summons shall be made available for examination or copying by the
instead of a warrant of arrest. (9a) respondent at his expense.
- jurisdiction of MTC is up to 6 years of imprisonment. Upon Objects as evidence need not be furnished a party but shall be
the receipt of the complaint/info, the MTC judge will have made available for examination, copying or photographing at
the following options: the expense of the requesting party.
1. personally evaluate the evidence of the complainant. (c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the
2. require a personal examination of the complainant and his respondent shall submit his counter-affidavit and that of his
witness in writing asking them searching questions to witnesses and other supporting documents relied upon for his
determine probable cause. defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The
3. may require them additional evidence respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.
If after using those option there is yet no probable cause (d) If the respondent cannot be subpoenaed, or if subpoenaed,
found, dismissed. But supposed the court found probable does not submit counter-affidavits within the ten (10) day
cause, it will issue a warrant of arrest. Suppose the accused period, the investigating officer shall resolve the complaint
was previously arrested, the court will issue a commitment based on the evidence presented by the complainant.
order. But since this is MTC, minsan ang offense napakaliit, (e) The investigating officer may set a hearing if there are such
arresto mayor. Minsan not warrant but only summons. facts and issues to be clarified from a party or a witness. The
parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the
What is the effect of the institution of the criminal action in investigating officer questions which may be asked to the
the prescription of offense? It is interrupted unless so provided party or witness concerned.
in special laws. In violations of municipal ordinances, the
filing in the prosecution does not interrupt. It must be one filed The hearing shall be held within ten (10) days from
in court as an information or complaint. (transcribers submission of the counter-affidavits and other documents or
comment: c.f. Pp. v. Pangilinan) from the expiration of the period for their submission. It shall
be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the
Preliminary Investigation investigating officer shall determine whether or not there is
-when the offense is punishable for at least 4 years, 2 months sufficient ground to hold the respondent for trial, (3a)
and 1 day.
- who are the officers who can conduct P.I Now, is it possible for the investigating prosecutor to
What is the basic outline of the process of PI immediately dismiss the case even without sending subpoena
Sec. 3, Rule 112. SEC. 3. Procedure. The preliminary to the respondent? Yes, if he finds no ground nor reason to file
investigation shall be conducted in the following manner: a case; no probable cause.

(a) The complaint shall state the address of the respondent and But if there is a ground, go to Sec.3b.
shall be accompanied by affidavits of the complainant and his When respondent received a subpoena, he cannot file an
witnesses, as well as other supporting documents to establish MTD. He must file a counter-affidavit and submit documents.
probable cause. They shall be in such number of copies as He is not allowed MTD.
there are respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer TRANSCRIPT 9
oath, or, in their absence or unavailability, before a notary How is the criminal action instituted? That depends on
public, each of whom must certify that he personally whether the case requires PI.
examined the affiants and that he is satisfied that they If it does not require PI, you can file the information directly
voluntarily executed and understood their affidavits. in MTC because of the jurisdiction.
 Dean Rianos Lecture 2014 61

True, as already stated, Section 14 of Rule 112 enjoins that 'no

If there is no PI, it is still possible to file a complaint before information . . . shall be filed, without first giving the accused
Prosecutors Office in those places i.e. chartered cities which a chance to be heard in a preliminary investigation,' but, as can
require passing the case through prosecutors office. But even be seen, the injunction refers to the non-holding of the
so, since there is no PI required, the respondent will not be preliminary investigation, not the absence of the certification.
notified, not be subpoenaed. The prosecutor will only In other words, what is not allowed is the filing of the
determine the affidavit and documents of the complainant information without a preliminary investigation having been
because there is no PI previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a
preliminary investigation should first be conducted."
The minimum penalty so that the rules will require PI is 4 2. ID.; ID.; PRELIMINARY INVESTIGATION; QUESTION
years, 2 months and 1 day. THEREOF SHOULD BE DONE PRIOR TO AN
ARRAIGNMENT. The question of whether or not a
preliminary investigation has been properly conducted is itself
If there is PI, the prosecutor will have to subpoena the
one that should be interposed prior to an arraignment. Relative
respondent; that is if he does not dismiss the complaint.
to his alleged warrantless arrest, he has waived, by filing a
Respondent is supposed to file counter-affidavit and submit
petition for bail, any irregularity attendant thereto. Indeed, by
documents in support of his defense. Suppose respondent files
his application for bail and by entering a plea of not guilty and
instead MTD, that is not allowed. The last part of Rule 112,
then submitting to the proceedings below, appellant must be
sec. 3c disallows MTD.
deemed to have foregone his right to preliminary investigation
and to question any irregularity that might have attended such
If the investigating prosecutor decides to conduct a hearing on investigation.
this, this is not a true hearing since the parties cannot examine ||| (People v. Lapura y Cajan, G.R. No. 94494, March 15,
and cross-examine. If they have questions, they can submit it 1996)
to the investigating prosecutor and it is the prosecutor who
will ask the questions. These are clarificatory questions. When
does the prosecutor decide to conduct the hearing? When there Do you have a remedy if you are the respondent when the
are certain factual issues to be resolved. provincial/city prosecutor approves the resolution and the
information of the investigating prosecutor? Yes. You can file
a motion for reconsideration within 15 days from receiving the
Suppose the investigating prosecutor finds probable cause, he resolution. Suppose it is denied by the provincial/city
prepares a resolution and the information. That information prosecutor, do you have the remedy? Yes. Under the DOJ
cannot be filed in court without the approval of the higher Rules, you can file a petition for review with the Secretary of
authority, i.e provincial prosecutor, city prosecutor or Justice. Now, suppose the Secretary of Justice resolves the
Ombudsman. case against you, can you appeal? No, there is no appeal. But
In that information is found a certification which is a you can have the resolution of the Secretary of Justice
certification by the investigating prosecutor under oath reviewed by a petition for certiorari against the secretary of
certifying that he has personally examined the complainant the DOJ in the Court of Appeals. When you go to CA you are
and his witnesses and that there is probable cause to believe not appealing, you are attacking the resolution of SOJ using
that a crime has been committed and that the respondent is the theory of grave abuse of discretion amounting to lack of
probably guilty thereof. He certifies that the respondent has jurisdiction. When you use Rule 65 that is not an appeal.
been given the copy of the complaint, evidence and documents Simply a mode of review.
of the complainant and that he was given the opportunity to Why do you go to CA by way of Rule 65? Because there is no
submit his controverting evidence. In other words, he certifies appeal.
that he has duly conducted a preliminary investigation. Suppose you lose in the CA, what is the remedy? SC under
** 1. REMEDIAL LAW; CRIMINAL PROCEDURE; Rule 45.
INFORMATION; REQUIREMENT FOR CERT
IFICATION; NOT AN INDISPENSABLE PART THEREOF.
Is it possible to have the resolution of the SOJ reviewed by
Relative to the claim that the certification did not fully
OP? Yes. But only when the penalty impsable in the resolution
comply with the requirements of Section 4, Rule 112, of the
is an offense punishable by reclusion perpetua or death. Memo
Rules of Court, we need merely to reiterate the settled rule that
Circular No. 58 of June 30, 1993.
such certification is not an indispensable part of, let alone
invalidate even by its absence, an information. In People
vs. Marquez, 27 SCRA 808, 813, the Court has had occasion When from the SOJ, you go to OP that is an administrative
to explain: ". . . It should be observed that Section 3 [now appeal, not a judicial appeal. The resolution of SOJ is not
Section 4] of Rule 110 defines an information as nothing more subject to judicial appeal. That is why you go to CA by Rule
than 'an accusation in writing charging a person with an 65. But there is an administrative appeal to OP.
offense subscribed by the fiscal and filed with the court.' Thus,
By the way, death cannot be imposed na ha. The highest
it is obvious that such certification is not an essential part of
imposable penalty is reclusion perpetua. Even if the death
the information itself and its absence cannot vitiate it as such.
 Dean Rianos Lecture 2014 62

penalty will not be imposed, the definition of capital offense support of the filing of the information to determine probable
still exist. Sec. 6, Rule 114. cause.

Suppose you lost in the OP, is your remedy appeal? Yes. To Preliminary examination the determination of probable
CA under Rule 43. So when the OP decides against you there cause by the court. It is judicial function. This is conducted
is now a judicial appeal, you go to CA, a petition for review after an information is filed in court. To determine whether or
under Rule 43. If you lose in the CA, go to SC under Rule 45. not a warrant of arrest will be issued. If there is no probable
Questions of law. cause, information is dismissed. If the court is in doubt, it will
require additional evidence. If there is probable cause,
warrant of arrest. If already arrested, a commitment order is
If there is direct filing in MTC, what is the MTC going to do? issued.
It has options, Rule 112, Sec.8b.
1. Personal evaluation of evidence
2. Personal examination in writing through searching Preliminary investigation - the determination of probable
questions cause by the prosecutor. It is an executive function.
3. Can require additional evidence Prosecutors are under DOJ. This is done before any
information is filed in court. The purpose is to determine
probable cause whether the crime has been committed and the
- Probable cause = dismissed respondent is probably guilty thereof.
+ Probable cause = arrest
If already arrested = commitment order, There are offenses which are punished by a penalty more than
4 years, 2 months and 1 day but no preliminary investigation
is needed.
but sometimes MTC may not issue a warrant of arrest but
rather issue summons
Now, let us assume that I was arrested in the act of
committing homicide. I was arrested in flagrante delicto.
Suppose there is a decision to file a case in court. But on Homicide has the penalty of more than 6 years, reclusion
appeal, the SOJ reversed the decision of prosecutor and said temporal. I was arrested lawfully without a warrant. I have no
that it shouldnt be filed anymore; or if the information was automatic right to preliminary investigation. Inquest will be
already filed it should be withdrawn. Will the withdrawal conducted. It is a summary proceeding to determine whether
order of SOJ be an order binding in the court? No. Even the an information will be filed. In an inquest, the prosecutor will
SOJ wants the withdrawal of the information, the withdrawal only consider the evidence submitted by the complainant.
of thte information is subject to judicial discretion. The court
However, the inquest presupposes that there is an inquest
is not bound by the order of SOJ. Once the info is filed in the
prosecutor available. Not all places have inquest prosecutors.
court the one in control is the court.
In fact, now, we lack 3500 prosecutors, 1200 judges but not
** The rule therefore in this jurisdiction is that once a filled up coz of no money. If no inquest prosecutor available,
complaint or information is filed in Court any disposition of the complaint could be directly filed on the proper court on
the case as its dismissal or the conviction or acquittal of the the basis of the affidavit of the complainant or arresting
accused rests in the sound discretion of the Court. Although officer. This is an instance of direct filing to RTC. Sec. 6.
the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the The inquest presupposes that the person has been lawfully
best and sole judge on what to do with the case before it. The arrested without a warrant. If with warrant, regular PI follows
determination of the case is within its exclusive jurisdiction and not inquest.
and competence. A motion to dismiss the case filed by the
fiscal should be addressed to the Court who has the option to
SEC. 6. When accused lawfully arrested without warrant.
grant or deny the same. It does not matter if this is done
When a person is lawfully arrested without a warrant
before or after the arraignment of the accused or that the
involving an offense which requires a preliminary
motion was filed after a reinvestigation or upon instructions
investigation, the complaint or information may be filed by a
of the Secretary of Justice who reviewed the records of the
prosecutor without need of such investigation provided an
investigation.||| (Crespo v. Mogul, G.R. No. L-53373, June 30,
inquest has been conducted in accordance with existing rules.
1987)
In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or by a peace
Let us suppose the information is filed in court, does the court officer directly with the proper court on the basis of the
have the duty? Yes within 10 days from the receipt of affidavit of the offended party or arresting officer or person.
complaint or information, the court has the duty, in Sec. 5 Before the complaint or information is filed, the person
under the present rules as amended, to a make personal arrested may ask for a preliminary investigation in
evaluation of the evidence submitted by the prosecution in accordance with this Rule, but he must sign a waiver of the
 Dean Rianos Lecture 2014 63

provisions of Article 125 of the Revised Penal Code, as SEC. 17. Bail, where filed. . . .
amended, in the presence of his counsel. Notwithstanding the (c) Any person in custody who is not yet
waiver, he may apply for bail and the investigation must be charged in court may apply for bail
terminated within fifteen (15) days from its inception. with any court in the province, city, or
After the filing of the complaint or information in court municipality where he is held. (Emphasis
without a preliminary investigation, the accused may within supplied)
five (5) days from the time he learns of its filing, ask for a The Certificate of Detention 14 issued by the PNP-TMG-SOD
preliminary investigation with the same right to adduce shows that Santos was detained at Camp Crame in Quezon
evidence in his defense as provided in this Rule. (7a; sec. City. Thus, as correctly pointed out by the OCA, the
2, R.A. No. 7438) application for bail should have been filed before the proper
Quezon City court and not in Marikina City.
However, a person arrested without a warrant is not In addition, it appears that no formal application or petition for
necessarily deprived of his right to PI. The rule is that he the grant of bail was filed before the RTC-Marikina City.
cannot automatically be entitled to PI. He has to ask for it. So There were no records of the application or the release order
before the information is filed in court he could request for a issued by respondent Judge Beldia. Neither was there a
preliminary investigation under one condition which is to hearing conducted thereon nor the prosecutor notified of the
sign a waiver of the Art. 125 of RPC. The waiver must be bail application. ACDTcE
with assistance of counsel. If you do not waive it you will not Under the present rules, a hearing on an application for bail is
be given a preliminary investigation. By the way, the counsel mandatory. 15 In Cortes v. Judge Catral, 16 we ruled that in
must be independent and should not be a government all cases, whether bail is a matter of right or of discretion,
counsel. There is only one independent counsel of the reasonable notice of hearing must be given to the prosecutor,
government PAO. or at least his recommendation on the matter must be sought.
The rationale for this was explained in this wise:
Bail should be fixed according to the
Suppose naunahan ka sa pag-file ng information, can you still
circumstances of each case. The amount
request for a preliminary investigation? Yes, within 5 days
fixed should be sufficient to ensure the
from learning of its filing, you can still file for a request for
presence of the accused at the trial yet
PI.
reasonable enough to comply with the
constitutional provision that bail should
Illustration: You have been arrested without a warrant not be excessive. Therefore, whether bail
lawfully for robbery. You asked for PI and waived Art.125 is a matter of right or of discretion,
but you are still in jail. Can you ask for bail even before the reasonable notice of hearing is required to
formal charge is filed in court? Yes! What is the reason? The be given to the prosecutor or fiscal or at
basis is the fact that you are under custody. RULE 114. least he must be asked for his
BAIL.SEC. 17. Bail, where filed. x x x recommendation because in fixing the
amount of bail, the judge is required to
(c) Any person in custody who is not yet charged in court take into account a number of factors such
may apply for bail with any court in the province, city or as the applicant's character and reputation,
municipality where he is held, (17a) forfeiture of other bonds or whether he is
a fugitive from justice. 17
Concededly, a person lawfully arrested and detained but who Judge Beldia disregarded basic procedural rules when he
has not yet been formally charged in court, can seek his granted bail to Santos sans hearing and notice and without the
provisional release through the filing of an application for bail. latter having filed a formal petition for bail. Accordingly, the
He need not wait for a formal complaint or information to be prosecution was deprived of procedural due process for which
filed since bail is available to "all persons" where the offense respondent Judge Beldia must be held accountable. 18
is bailable. 12 Section 7, Rule 112 of the 1985 Rules of ||| (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16,
Criminal Procedure provides that a judge could grant bail to a 2005)
person lawfully arrested but without a warrant, upon waiver of
his right under Article 125 of the Revised Penal Code, as
Santos had done upon her inquest. The word complaint is used in 2 senses under the Rules. The
Undeniably too, Santos was entitled to bail as a matter of right first is the complaint which the offended party files to the
since the offense with which she was charged does not carry prosecutor for purposes of preliminary investigation (this was
the penalty of life imprisonment, reclusion perpetua or formerly called denuncia). That complaint is not the complaint
death. 13 Notwithstanding, it was incumbent upon respondent in Sec. 3 of Rule 110 which is a complaint filed in court.
Judge Beldia to grant bail to Santos in accordance with
established rules and procedure. Respondent There is a distinction between a complaint filed in court and
Judge Beldia failed in this respect and must thus be held an information filed in court. A complaint filed in court is not
administratively liable. filed by the Prosecutor. Thats why you cannot say accurately
Section 17, par. (c) of Rule 114 distinctly states: na the prosecutor filed the complaint. This complaint is filed
 Dean Rianos Lecture 2014 64

by the complainant or an officer charged by the law. It is of reclusion perpetua on each of the appellants.||| (People v.
always sworn and under oath. An information is mere Aure, G.R. No. 180451, October 17, 2008)
accusation is writing. It does not say it has to be sworn. The
prosecution files an information under the oath of his own
office. In the present case, the Information charging the petitioners
with violation of R.A. No. 6539, as amended, did not allege
that the carnapping was committed by means of violence
Sec. 8 and 9 of Rule 110 are very important. Compare these against, or intimidation of, any person, or force upon
with Civ Pro. SECTION 8. Designation of the Offense. The things. While these circumstances were proven at the trial,
complaint or information shall state the designation of the they cannot be appreciated because they were not alleged in
offense given by the statute, aver the acts or omissions the Information. Thus, the lower courts erred when they took
constituting the offense, and specify its qualifying and these circumstances into account in imposing the penalty
aggravating circumstances. If there is no designation of the which they pegged at seventeen (17) years and four (4)
offense, reference shall be made to the section or subsection of months to thirty (30) years imprisonment. In the absence of
the statute punishing it. (8a) these circumstances, the charge against the petitioners is
SECTION 9. Cause of the Accusation. The acts or confined to simple carnapping whose imposable penalty
omissions complained of as constituting the offense and the should have been imprisonment for not less than fourteen (14)
qualifying and aggravating circumstances must be stated in years and eight (8) months, and not more than seventeen (17)
ordinary and concise language and not necessarily in the years and four (4) months.||| (Andres v. People, G.R. No.
language used in the statute but in terms sufficient to enable a 185860, June 05, 2009)
person of common understanding to know what offense is
being charged as well as its qualifying and aggravating Rule 110, SECTION 13. Duplicity of the Offense. A
circumstances and for the court to pronounce judgment. (9a) complaint or information must charge only one offense, except
- Look at the similarity of Sec. 8 and 9. Both make when the law prescribes a single punishment for various
reference to the qualifying and aggravating offenses. (13a)
circumstances. These rules seem to tell us that the - One complaint, one offense. One information, one
designation of an offense and the cause of accusation are offense. You cannot have two or more offenses in one
not complete if no reference is made to the qualifying complaint/information unless the law provides a single
and aggravating circumstances. penalty for 2 or more offenses, i.e. complex crimes,
compound crimes and special complex crimes.
** REMEDIAL LAW; CRIMINAL PROCEDURE;
AGGRAVATING AND QUALIFYING CIRCUMSTANCES
MUST BE ALLEGED IN THE INFORMATION. When the law provides for separate penalties for separate acts
Aggravating and qualifying circumstances must be there are distinct offenses.
categorically alleged in the Information; otherwise, they
cannot be appreciated. In this case, as contended by both the The last bar question used here is illegal possession of
defense counsel and the OSG, appellant cannot be convicted firearms. X was arrested for illegal possession of .45 caliber
of rape qualified by the use of a deadly weapon, since that pistol. Then he was also arrested for the same occasion for
circumstance was not alleged in the Informations. He cannot illegal possession of 32 caliber pistol (not so powerful). They
be punished for an offense graver than that for which he was were contained in one information as they were caught from
charged. (People v. Mendoza, G.R. Nos. 132923-24, June 06, him in one occasion. Is this correct? No, because the law has a
2002) separate penalty for 45 caliber pistol and for a 32 caliber
pistol. They must be contained in separate information.
Illustration: The accusation is murder and the qualifying
circumstance is alevosia. Treachery was not proven. What was If you are going to be sued for 2 or more offenses under one
proven instead are abuse of superior strength, disregard of information when they should be separated, you are supposed
rank evident premeditation- but they are not contained in the to object through a motion to quash. If you do not object, the
Information. So the crime here is homicide. defect is waived. You can be penalized in as many offenses as
may be proven.
** In the case under consideration, AAA was raped by
appellants while she was under the custody of the CIDG. Rule 120, SECTION 3. Judgment for Two or More Offenses.
Further, appellants were members of the PNP-CIDG at the When two or more offenses are charged in a single
time they raped AAA. Nonetheless, these complaint or information but the accused fails to object to it
aggravating/qualifying circumstances were not specifically before trial, the court may convict him of as many offenses as
alleged in the informations. It is settled that the are charged and proved, and impose on him the penalty for
aggravating/qualifying circumstances be expressly and each offense, setting out separately the findings of fact and
specifically alleged in the information, otherwise they cannot law in each offense
be appreciated, even if they are subsequently proved during
the trial. Thus, the RTC was correct in imposing the penalty
 Dean Rianos Lecture 2014 65

* so what are you supposed to do? You object, otherwise, it is - Let us have the general rule. Where should the criminal
waived. action be filed? In the place where the offense occurred
Another important topic is Rule 110, SECTION 15. Place or where any of its essential ingredients occurred.
Where Action Is to Be Instituted. - When can a criminal action be filed not in the place
where the act occurred or any of its essential ingredients
(a) Subject to existing laws, the criminal action shall be
occurred? Letter B is one of the exceptions. According to
instituted and tried in the court of the municipality or territory
Justice Regalado, in the course of its trip- not during a
where the offense was committed or where any of its essential
stop-over but while it is moving.
ingredients occurred (for continuing crimes).
- Cubao Caloocan- bulacan-pampanga-panggasinan-la
union baguio. Habang tumatakbo, nagkatinginan ang 2
(b) Where an offense is committed in a train, aircraft, or other pasaherong magkatabi. Ang ginawang ng isang salabahe
public or private vehicle in the course of its trip, binunot ang balisong at sinasaksak ang katabi. Patay.
the criminal action shall be instituted and tried in the court of Nangyari sa Pangasinan. Kung titingnan ang general
any municipality or territory where such train, aircraft, or rule, saan dapat i-file ang murder case? Pangasinan. But
other vehicle passed during its trip, including the place of its under letter b of sec. 15, can the criminal case be filed in
departure and arrival. baguio city? Yes, the place of arrival. In cubao? No,
there is no court in cubao, you say quezon city. So you
file it in quezon city. Can it be filed in Caloocan? Yes.
(c) Where an offense is committed on board a vessel in the There are courts there and it is one of the places where
course of its voyage, the criminal action shall be instituted and the bus passed. This is an exception to the general rule.
tried in the court of the first port of entry or of any - The rule is quite different when the crime is committed
municipality or territory where the vessel passed during such in a maritime vessel. Inter-island. In inter-island vessels,
voyage, subject to the generally accepted principles of you do not use the place of departure or arrival. Use
international law. instead the first port of entry or where it passed during
(d) Crimes committed outside the Philippines but punishable the voyage.
under Article 2 of the Revised Penal Code shall be cognizable - Illustration: if you came from pier of manila, port of
by the court where the criminal action is first filed. (15a) Calapan, Oriental Mindoro- Buac, Marinduque
Romblon Cebu - to the port of Cagayan de Oro. A
crime was committed while the ship was on Buac,
- The essence of that provision is venue of criminal cases. Marinduque. Can the case be filed in Manila? No. It did
Where should the criminal action be filed. not pass manila, it came from Manila. The point of
- If homicide is done in Manila, the information must be departure is not included in maritime vessels. ^_^
filed in Manila. If the information was filed in QC, can - Tuloy2x hanggang Cagayan de Oro City, hindi tumigil
you file a motion to quash based on improper venue? No. ang barko kasi nga may crime. Pwede bang ma-file sa
Your ground should be lack of jurisdiction because Cagayan de Oro City? Yes because it became the port of
venue is jurisdictional. first entry from the time the crime was committed.
- Let me give you an implication. If venue is jurisdictional Although the place of arrival is not included but since it
in criminal case, it cannot be waived because jurisdiction never stopped, the first port of entry became the place of
is not waivable. On the other hand, improper venue in arrival.
civil case can be waived because it is not jurisdictional. - Another instance where the case can be filed in a place
- Illustration: X, under circumstances of death, took the other than where the crime is committed is in Art. 2 of
wallet of Y filled with money in QC. But the money was RPC. Follow the English and British rule.
found with the wallet in Manila. Where should the - A crime is committed in Philippine ship while in
criminal action be filed? In QC, where the act of international waters. It is not committed in Philippine
asportation took place, not where the stolen article was territory. Can it be cognizable in Philippine courts? Yes.
found. Can it be filed in the Philippines? Can it be filed in
- Now, I am affrayed with respect to BP22. A check was Pangasinan court? Yes. The first court where it was filed.
issued to the payee in Manila. The drawee bank is in Even if it was not committed in Pangasinan.
Makati. The payee who received the check deposited it in - If you violate the laws under jurisdiction of
his account in QC. The drawee bank dishonoured the Sandiganbayan, i.e. Art. 210-212 of RPC, RA 3019, etc.,
check. Can you file BP22 in QC? No. The place of even if the violation is done in Cotabato, the criminal
deposit is not an ingredient of a negotiable check. The action can be filed in Quezon City. Sandiganbayan has
following are the ingredients: 1) the place of issue (the no branches. You have to file it where the court sits
issue of the check is the contract in itself [S.191, NIL]); QC. Take note of Sec. 15.
2) the dishonour of the check. - Rule 110 in relation to Rule 112.
- When will the place of deposit of a check be considered
as an essential ingredient? If the check is a crossed-
check. A cross check is not supposed to be encashed but Possible bar exams on Rule 111. Always in the Bar.
deposited.
RULE 111
Prosecution of Civil Action
 Dean Rianos Lecture 2014 66

- Every person criminally liable is also civilly liable. from the offense charged and they are not deemed instituted
- SECTION 1. Institution of Criminal and Civil Actions. impliedly even if they came from the same criminal action.
(a) When a criminal action is instituted, the civil 2004, 2005 Bar exams. MCQ 2011, 2012.
action for the recovery of civil liability arising from the - a single criminal act, lets say serious physical injuries, is
offense charged shall be deemed instituted with not only a violation of RPC but also a separate source of
the criminal action unless the offended party waives the obligation called law. There are several sources of obligation:
civil action, reserves the right to institute it separately or law, contract, quasi-delicts, delicts, quasi-contracts. This is a
institutes the civil action prior to the criminal action. violation of Art. 33 of NCC, not a quasi-delict nor a delict.
- The reservation of the right to institute separately the This is simply a violation of a separate provision of law, an
civil action shall be made before the prosecution starts independent civil action. This is a violation of RPC. Because
presenting its evidence and under circumstances this is a violation of RPC, there is a criminal liability and a
affording the offended party a reasonable opportunity to civil liability (Art. 100 RPC). This is the civil liability
make such reservation. impliedly instituted in the criminal action. This art. 33 also
- When the offended party seeks to enforce civil liability gives rise to a civil liability which is not impliedly instituted.
against the accused by way of moral, nominal, temperate, So, when you commit serious physical injuries, there are 2
or exemplary damages without specifying the amount civil liabilities: one arising from RPC, one arising from
thereof in the complaint or information, the filing fees separate provision of law the Art. 33 which proceeds
therefor shall constitute a first lien on the judgment independently from the criminal action.
awarding such damages.
- Where the amount of damages, other than actual, is
A single act of negligence may be a violation of RPC and the
specified in the complaint or information, the
law on quasi-delicts. If it violates the law on quasi-delict you
corresponding filing fees shall be paid by the offended
call it culpa acquiliana or culpa extracontractual. If it is a
party upon the filing thereof in court. EDcICT
violation of RPC because of reckless imprudence, lack of
- Except as otherwise provided in these Rules, no filing foresight, lack of skill, that is culpa criminal or criminal
fees shall be required for actual damages. negligence; a quasi-offense (A365 RPC). If I am driving
- No counterclaim, cross-claim or third-party complaint recklessly and I hit a pedestrian and the latter got severely
may be filed by the accused in the criminal case, but any injured, I could be prosecuted for reckless imprudence
cause of action which could have been the subject resulting in serious physical injuries or civil damages under
thereof may be litigated in a separate civil action. (1a) quasi-delict. When I am sued in reckless imprudence
- (b) The criminal action for violation of Batas Pambansa resulting in serious physical injuries there is an implied civil
Blg. 22 shall be deemed to include the corresponding action for the recovery of civil action arising from that act of
civil action. No reservation to file such civil action reckless imprudence. The quasi-delict is not impliedly
separately shall be allowed. instituted. Art. 33, NCC. The source of obligation is not a
- Upon filing of the aforesaid joint criminal and civil delict. the source is a quasi-delict which is distinct from
actions, the offended party shall pay in full the filing fees delict.
based on the amount of the check involved, which shall
be considered as the actual damages claimed. Where the
complaint or information also seeks to recover I was sued for serious physical injuries. This is dolo,
liquidated, moral, nominal, temperate or exemplary intentional. When i was sued, there is necessarily an implied
damages, the offended party shall pay additional filing civil action arising from Art. 100. During the pendency of
fees based on the amounts alleged therein. If the amounts criminal action, the offended party filed a separate action for
are not so alleged but any of these damages are civil damages under Art. 33. The accused said, MTD the civil
subsequently awarded by the court, the filing fees actions for the filing was not reversed and litis pendentia (one
based on the amount awarded shall constitute a first arising from offense charged and one from Art. 33 which
lien on the judgment. resulted from the same act) should you grant the MTD? No.
- Where the civil action has been filed separately and trial There is no litis pendentia. The civil action from Art. 33 is
thereof has not yet commenced, it may be consolidated not the one arising from RPC. It is separate and can proceed
with the criminal action upon application with the court independently without reservation. What should be reserved
trying the latter case. If the application is granted, the is the civil action arising from the offense charged.
trial of both actions shall proceed in accordance with
section 2 of this Rule governing consolidation of the civil Rule 111 SECTION 3. When Civil Action May Proceed
and criminal actions. (cir. 57-97) Independently. In the cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the independent
* do you refer to all civil actions to recover civil liability that civil action may be brought by the offended party. It shall
are impliedly instituted with criminal actions? No. You are proceed independently of the criminal action and shall require
only referring to civil actions arising from the offense only a preponderance of evidence. In no case, however, may
charged. That is critical to the understanding of Sec. 1 of Rule the offended party recover damages twice for the same act or
111. The one referred to in Art. 100 of RPC, the one arising omission charged in the criminal action. (3a)
from the offense charged. There are civil liabilities not arising
 Dean Rianos Lecture 2014 67

There are independent actions Art. 32, 33, 34, 2176 of NCC. It has to be filed in a separate civil action. The filing is not
By the way, Art. 32, 33, 34, are obligations arising from law prohibited. What is prohibited is filing in the same criminal
while Art. 2176 is obligation arising from quasi-delict. But all action. Rule 111.
of them have the effect of independent civil actions. This is a
favourite topic in the bar. Where your civil actions arise from
Articles 32, 33, 34, 2176 of NCC, even if those civil actions Sec. 3 of Rule 111 is your key to understanding independent
arise from criminal acts, they proceed independently. They civil action.
can even be filed together with the criminal action or
simultaneously. So for example, estafa involves fraud. When Prejudicial Questions
you commit it, it also gives rise to a civil independent action
because of Art. 33 which mentions fraud. So when you sue Prejudicial has specific and technical meaning in crim pro.
someone for estafa, there are 2 civil liabilities: from estafa When there is a prejudicial question it is not found in the
and from fraud (Art. 33). criminal case. It is found in the civil case. That question must
first be resolved before you continue with the criminal case.
Suppose you are sued for homicide. Homicide is covered by The significance of prejudicial question is this. The general
generic name- physical injuries. So, there is a civil liability rule is that it is the civil action that is suspended when the
arising from it. That is the one impliedly instituted and an criminal action is subsequently filed in case the civil action is
independent civil action, Art. 33, NCC. filed ahead. When there is a prejudicial question, it is the other
way around, it is the criminal action which is suspended. You
So you can sue him for homicide and at the same time sue have to wait for the resolution of the civil aspect of the case.
him civilly under Art. 33, NCC. Suppose, he is acquitted of A prejudicial question in a civil case may also result even in
homicide due to reasonable doubt, the independent civil the suspension of a preliminary investigation. It may also
action is not extinguished because it is separate. It proceeds result in the suspension of a criminal action.
independently of the criminal action regardless of the result.
It is not affected. Short-cut:
1. Look at the cases.
The consequences: - If both are administrative cases, forget prejudicial
The acquittal of the accused will not affect the question. The concept of prejudicial question is related
independent civil actions. only to criminal procedure.
- An administrative and a civil action, no prejudicial
The independent civil action need not be reserved as question.
the law itself reserves for them. (what needs to be - A civil and a civil action, no prejudicial question.
reserved are those civil actions arising from delict - A criminal case and a criminal case, no prejudicial
which reservation must be done before prosecution question.
starts presentation of evidence) - A criminal case and a civil case, there may be a
prejudicial question. If you see under the facts of the case
With respect to civil actions arising from offense that the criminal case was filed first and the civil action
charged, when that civil action is filed ahead of the was filed second, there is no prejudicial question. @.@.
offense charged, the criminal action will take why? Look at the elements of prejudicial question.
precedence and that civil action will be suspended
until its final judgment. the independent civil actions
Rule 111, SECTION 7. Elements of Prejudicial Question.
are not suspended because they are independent.
The elements of a prejudicial question are: (a) the previously
(they are like sovereign states @.@)
instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action,
and (b) the resolution of such issue determines whether or not
Remember, in BP22 cases you cannot reserve the filing of
the criminal action may proceed. (5a)
civil actions. (Sec. 1 of Rule 111) It has to be tried together
with criminal action. Is there an instance where the civil action
in BP22 cases tried separately from the criminal action? Yes. - Suppose the first case is civil and the second case is
Only when the civil action is filed ahead of the criminal case. criminal. The first element is complied with but do not
But if filed together, you cannot reserve the civil action. conclude that there is already a prejudicial question.

By the way, current circulars of SC discourage imprisonment 2. Look at the issues of the case. Are the issues
in BP 22 cases. Payment of fines only which are equivalent to interrelated and connected? Is the resolution of that
the amount of checks. Summary procedure. 2004. issue determinative of whether or not the criminal
action shall proceed. Common sense.

Can the accused file a counterclaim or third party complaint in

a criminal case? Yes but it cannot be filed in a criminal action. But when you argue whether or not there is a prejudicial
question do not forget to mention the elements of
 Dean Rianos Lecture 2014 68

prejudicial question, so that even if your conclusion is SECTION 5. Arrest Without Warrant; When Lawful. A
wrong at least you were able to show to the examiner that peace officer or a private person may, without a warrant, arrest
you know the elements. Yours is just a dissenting opinion. a person:
Hehe. ^_^ (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
3. When a case is BP22 case. The first case is a civil an offense;
case and the second one is a BP22 case, there is no (b) When an offense has just been committed and he has
prejudicial question. The elements of BP 22 are not probable cause to believe based on personal knowledge of
the same with the elements of any civil case. @.@ facts or circumstances that the person to be arrested has
committed it; and
Illustration: X paid P5M to C. P3M was cash and (c) When the person to be arrested is a prisoner who has
P2M was check. After payment, it was discovered escaped from a penal establishment or place where he is
that X was not supposed to pay yet since the debt was serving final judgment or is temporarily confined while his
just P3M already covered by cash. The P2M check case is pending, or has escaped while being transferred from
was overpayment. X wanted that the check be one confinement to another. IDCcEa
returned to him. Y refused. So X filed a civil action
to recover the excess. It so happened that the check In cases falling under paragraphs (a) and (b) above, the person
was deposited and it bounced. Now, Y filed BP 22 arrested without a warrant shall be forthwith delivered to the
case. X said that BP 22 case should be suspended due nearest police station or jail and shall be proceeded against in
to prejudicial question; we have to resolve first if accordance with section 7 of Rule 112. (5a)
there is overpayment because if there is so, the
issuance of the check that bounced is a redundancy
- This has always been asked in the bar exam.
and it should not have been issued and it should not
have been encashed and it should not have bounced.
Is there a prejudicial question? Looks like it but a) It did not say is about to commit old provision. There
actually there is NONE! BP 22 case has different is no direct overt acts. In whose presence? Of the person
elements from action for recovery of the sum of making the arrest: need not be a peace officer as he could
money. be a private person but it is risky ha. There is no problem
with respect to letter a. The problem is on letter b
4. You cannot rely on old cases of Bigamy on because of the way the Rule is framed which is not
prejudicial questions as the elements of prejudicial accurate.
question before are different from the elements of
prejudicial question since December 1, 2000. The b) How can you have a personal knowledge of
cases in bigamy then were resolved under the old circumstances leading you to believe that crime is
elements of prejudicial question. Here, you use committed when it is not in your presence. What justifies
common sense. Illustration: H married to W1. H warrantless arrest here is that the crime has just been
married to W2 during the subsistence of the first committed. Hot pursuit. Kasi mainit pa eh. SC clarified
marriage. W1 discovered this. . W1 filed a bigamy this na this personal knowledge is not about personal
case. H filed an action for declaration of nullity of knowledge of the crime because he was not there. But
marriage on the ground that he married W1 without a this is personal knowledge of certain circumstances that
marriage license. Is there a prejudicial question? will lead him to have a probable belief that you
Look first at the elements. Argue that the criminal committed it. How could that be possible? This could be
case was filed ahead when under the Rules it should understood in the light of the case of People v. Apol
have been the civil case that should be filed ahead. (cant find this jud ai in cdasia ). Somewhere in Fort
Bonifacio, Taguig, there was a jeepney plying its usual
Under the Family Code, the absolute nullity of the route. The passengers of that jeepney were robbed at gun
previous marriage may be invoked only for the point by 3 hold-upers. One of the victims was robbed of
purpose of remarriage on the basis only of the final his beloved jacket that was very very new and expensive.
judgment declaring such previous marriage void. Ang ibang pasahero matapos mahold-up nagsi-alisan na
lang, siya hindi; dahil ang sama ng kanyang kalooban
It is not for the party to say that the first marriage is kasi ang bago nyang jacket na pinag-ipunan nya ng kay
void. You have to get a judicial declaration that the tagal2x ay kasama sa hinold-up. Within 30 minutes,
marriage is void. Because of Art. 40, there is no dumating ang mga police nakita siyang tumutulu ang
prejudicial question even if the first case is a civil luha sabay sipon kinukwento ang nangyari sa kanya.
case. Pinasakay sya sa patrol car at umikot sila para hanapin
yung salarin at ang jacket. Wala pang sampung minuto
sumigaw na ang victim, ayun ang magnanakaw
Now when you go to arrest in Rule 113, do not forget Section
naglalakad suot pa nya ang jacket ko! sabay hagulgol...
5.
inaresto ang salarin. Warrantless arrest. Ang issue sa SC
invalid ang arrest kasi walang warrant. The crime of
 Dean Rianos Lecture 2014 69

hold-uping was not committed in the presence of the or oath, that a material witness will not testify when required,
police officer. Sabi ng SC. The basis of warrantless arrest it may, upon motion of either party, order the witness to post
is letter b. A crime has just been committed. And the bail in such sum as may be deemed proper. Upon refusal to
police officers have knowledge of certain circumstance post bail, the court shall commit him to prison until he
that will make him believe that he is the hold-uper complies or is legally discharged after his testimony has been
because of the first-hand information given to him by the taken.
victim that the guy was wearing my jacket. So it was
considered a valid arrest.
What is the constitutional basis of the right to bail? The
presumption of innocence.
Remember, Section 5 is not the only ground for warrantless
arrest.
The most popular question on the bar on bail is on Section 4
Rule 113, SECTION 13. Arrest After Escape or Rescue. If and 5 of Rule 114.
a person lawfully arrested escapes or is rescued, any person
may immediately pursue or retake him without a warrant at
any time and in any place within the Philippines. (13) SECTION 4. Bail, a Matter of Right; Exception. All
persons in custody shall be admitted to bail as a matter of
right, with sufficient sureties, or releasedon recognizance as
Rule 114, SECTION 23. Arrest of Accused Out on Bail. prescribed by law or this Rule (a) before or after conviction
For the purpose of surrendering the accused, the bondsmen by the Metropolitan Trial Court, Municipal Trial Court,
may arrest him or, upon written authority endorsed on a Municipal Trial Court in Cities, or Municipal Circuit Trial
certified copy of the undertaking, cause him to be arrested by Court, and (b) before conviction by the Regional Trial Court
a police officer or any other person of suitable age and of an offense not punishable by death, reclusion perpetua, or
discretion. life imprisonment. (4a)
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the
Philippines without permission of the court where the case is SECTION 5. Bail, When Discretionary. Upon conviction
pending. (23a) by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment, admission to
bail is discretionary. The application for bail may be filed and
RULE 114 acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to
Bail
the appellate court. However, if the decision of the trial court
- This is a concept not found in civil case. convicting the accused changed the nature of the offense from
- Illustration: X has been accused of homicide. An non-bailable to bailable, the application for bail can only be
information was filed against him. The court has issued a filed with and resolved by the appellate court.
warrant of arrest but the accused could not be found. He
is as elusive as the Malaysian Airline Flight 370. X asked
Should the court grant the application, the accused may be
his lawyers to apply for bail for him. And bail was
allowed to continue on provisional liberty during the
granted. Could you assail the validity of the bail granted
pendency of the appeal under the same bail subject to the
by the court? Yes. Bail can only be given as a rule in
consent of the bondsman.
favour of the person in custody of the law. But X is not
in custody of the law as he is a free man. And as a free If the penalty imposed by the trial court is imprisonment
man, he cannot avail of bail. exceeding six (6) years, the accused shall be denied bail, or
his bail shall be cancelled upon a showing by the prosecution,
with notice to the accused, of the following or other similar
Rule 114, SECTION 1. Bail Defined. Bail is the security circumstances:
given for the release of a person in custody of the law,
(a) That he is a recidivist, quasi-recidivist, or habitual
furnished by him or a bondsman, to guarantee his appearance
delinquent, or has committed the crime aggravated by the
before any court as required under the conditions hereinafter
circumstance of reiteration;
specified. Bail may be given in the form of corporate surety;
property bond, cash deposit, or recognizance. (b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
* But is it possible or is there a theory under our Rules that
(c) That he committed the offense while under probation,
grants bail to a person who is not even accused of a crime?
parole, or conditional pardon;
Bar 1994. Yes. Bail to secure the appearance of a material
witness to the criminal case. (d) That the circumstances of his case indicate the probability
of flight if released on bail; or
(e) That there is undue risk that he may commit another crime
Rule 119, SECTION 14. Bail to Secure Appearance of
during the pendency of the appeal.
Material Witness. When the court is satisfied, upon proof
 Dean Rianos Lecture 2014 70

he may produce? Because there is yet no case filed in

The appellate court may, motu proprio or on motion of any court. A search warrant could be issued even without a
party, review the resolution of the Regional Trial Court after case filed. But I was telling you, the issuance of a
notice to the adverse party in either case. warrant of arrest presupposes a complaint/information
filed already in court that has passed a preliminary
TRANSCRIPT 10 investigation. By the way, under the present rule, a
warrant of arrest does not expire. There is no expiration
When you study arrest, isabay nyo na ang searches Rule 126,
in relation to Rule 113. for that found in Rule 113. What expires is a search
warrant. Look at Rule 126 on the duration of a search
The issuance of a warrant of arrest by the court presupposes
that there is already a complaint/information filed in court. warrant. SECTION 10. Validity of Search Warrant. A
But the issuance of search warrant may be done even without search warrant shall be valid for ten (10) days from its
yet an information filed in court. The reason why a judge date. Thereafter, it shall be void. (9)
conducts preliminary examination to determine probable - This is not found in Rule 113. SECTION 6. Time of
cause after the filing of an information is to determine WON Making Arrest. An arrest may be made on any day
it shall issue a warrant of arrest or dismiss the case. and at any time of the day or night.
- Compare this with Rule 126 SECTION 9. Time of
After a preliminary investigation and the information is filed Making Search. The warrant must direct that it be
in court the court has no obligation to conduct a personal served in the day time, unless the affidavit asserts that
examination of the complainant and its witness if there is the property is on the person or in the place ordered to be
already preliminary investigation because the investigation searched, in which case a direction may be inserted that
has already been done in the prosecutors office. So, when the it be served at any time of the day or night.
information is already filed in court, the judge will merely - GR: the warrant must be served in the daytime
evaluate the evidence that was used by the prosecutor in the - Exc: the affidavit asserts that the property is on the
preliminary investigation below or it may require additional person or in the place ordered to be searched, in which
evidence; but the court has no obligation to conduct further case a direction may be inserted that it be served at any
personal examination through searching questions and time of the day or night.
answers. The option to conduct by the MTC of a searching
question and personal examination in writing apply only
Now, one of the most critical provision of Rule 126 is
when the filing is direct. Sec.8b. that is where the personal
SECTION 13. Search Incident to Lawful Arrest. A person
examination is only an option.
lawfully arrested may be searched for dangerous weapons or
anything which may have been used or constitute proof in the
The reason why the personal examination was given as an commission of an offense without a search warrant.
option in the direct filing in MTC in Sec. 8b was because
there was no prior preliminary investigation. That is why it
When the person is lawfully arrested he could be searched.
has the option to conduct a personal examination through a
You do not need a search warrant because the search is
written searching question and answer. But the moment that
incident to a lawful arrest. If arrest is invalid, the subsequent
there was a preliminary investigation, that option is not even
search and seizure is also invalid. C.f. Pp. v Mengote
granted to the court in Sec. 5 of Rule 112. The option was
only to ask for additional evidence after a personal
evaluation. If you are a police officer being subjected to cross
examination and you arrested someone without a warrant,
you are supposed to say that you arrested him because either
This is important because in the issuance of search warrant,
he has committed a crime or is attempting to commit a crime.
the rule is different. Rule 126, SECTION 4. Requisites for
Do not say that you arrested the accused on the basis of
Issuing Search Warrant. A search warrant shall not issue
suspicious acting or that the information was reliable because
except upon probable cause in connection with one specific
that would be an illegal arrest. If he is suspiciously acting, the
offense to be determined personally by the judge after
valid act would be to tell the court that you stopped him and
examination under oath or affirmation of the complainant and
frisked him under the rule of stop and frisk rule. This is not a
the witnesses he may produce, and particularly describing the
full scale arrest, therefore the existence of a crime is not
place to be searched and the things to be seized which may be
necessary for a Terry Search. You only need a genuine reason
anywhere in the Philippines.
to ask him question and to frisk him which should not be
intrusive but only tapping his outside clothing. But when you
- This is not a requirement in the issuance of a warrant of tapped his waist and there was an outline of a gun there is
now a probable cause to open to his waist and ask him
arrest when there is already a preliminary investigation.
whether that gun is licensed or not. If there is no proof that he
Why is the court in the issuance of a search warrant is licensed then there is now a reason to arrest him for illegal
mandated by the Rules to conduct an examination under possession of firearms.
oath or affirmation of the complainant and the witnesses
 Dean Rianos Lecture 2014 71

4. Customs searches
Remember Sec. 4, Rule 126, requirements for the issuance of
search warrant. Those requirements are not mandatory for the 5. Airports and transportation terminals
issuance of a warrant of arrest.
Is there any other else? When a wife searches the attach cases
of husband... ooh... no search warrant is necessary ^_^
There is a doctrine in jurisprudence that says that when you
lawfully arrest a person you can lawfully search him. But
when you lawfully search him the place to be searched must Look at this. X is a known drug dealer but he always manages
only be that place within his immediate control. Because of to be released due to technicalities. One day he was in the park
this rule, many law enforcement officers have been charged and carried a bag. Then a police who knew him well suspected
administratively. that there was shabu in the bag. When their eyes met, the
Lets say you arrested me lawfully due to a warrant of arrest. I accused evaded the polices gaze. The police arrested him and
can be searched my person and in my immediate control opened his bag. He found shabu and marijuana. During the
where I can search for weapons or destroy evidence. Suppose trial, the accused moved to suppress the evidence. If you were
the officer went to the 2nd floor and made halughog and his the judge, would you suppress the evidence? He was arrested
warrant is only a warrant of arrest, can you do that upstairs for acting suspiciously and that is not a ground for a
and search? No, that is no longer within his immediate control. warrantless arrest. Suspicions no matter how great are not
He cannot reach for weapon in the second floor when he is in grounds for warrantless arrest and searches.
the ground floor handcuffed. C.f. People v. Lian Siri, People
v. Valerozo when handcuffed, you have no authority Rule 115
anymore to search the cabinet even in the sala where he is
because he cannot reach for a weapon or evidence to be Rights of the Accused
destroyed. But if you are a law enforcement officer do not put Right against Self-incrimination
that in record that he is handcuffed. ;) - Can be invoked in any case where you will be possible
subjected to criminal prosecution. (so, this even applies to an
Are there instances a search incident to a valid arrest where administrative case, legislative investigations, civil case)
there is no need for a search warrant? Yes.
- It applies to testimonial compulsions.
1. When the search was with consent.
But you can argue that there was no full consent since while Illustration: Rape case. During the trial, the prosecution
there was no actual intimidation, there was a moral pressure in presented as exhibit the shorts of a male found in the crime
the presence of heavily armed people. scene and asked the accused to wear it. Accused refused to
wear it invoking his right against self-incrimination. Can he do
this? No. It does not involve testimonial compulsion.
2. Plain view doctrine
- Kitang kita ang contraband. The officer must have the
right to be in that place and not a trespasser. We already discussed the distinction between the accused and
- Illustration: R was serving a warrant of arrest to the a witness in invoking the right against self-incrimination. A
accused. R saw in the living room of the accused. Upon mere witness cannot refuse to be a witness but an accused can
arrest, R, a trained officer, happened to see on the table, totally refuse. A witness has to wait for the questions to be
shabu in 10 sachets. R got it and duly presented it to his asked of him for him to invoke the right against self-
superiors. The accused was also sued for illegal incrimination. But if his answer would not subject him to
possession of prohibited drugs. Is the confiscation valid? criminal prosecution, he cannot refuse to answer. But he can
Yes. No need for search warrant. Plain view. It would refuse to answer even if the liability would only be
not be plain view if hinanap sa 2nd floor. But if pag- administrative but the penalty is punitive in nature like fine.
search sa cabinet was within immediate control of the So it is as if criminal in nature. Supposed he is asked of his
accused and may shabu, included pa rin sa plain view commission of the crime 25 years ago, he cannot invoke his
doctrine since the shabu was inadvertently discovered right against self-incrimination because the offense and
and the cabinet was within his immediate control. penalty already prescribed so he cannot anymore refuse.
- Plain view doctrine does not only apply to the sense of Remember Beltran v. Samson,
sight. It could also be the sense of smell. C.f. People v.
Claudio. Also remember the right to speedy trial can only be invoked
by the accused in a criminal case. Others can only invoke the
3. Regulatory power of the state right to speedy disposition of the case
- Sanitation inspector in inspecting whether the restaurants
follow the sanitary rules of the government
 Dean Rianos Lecture 2014 72

When you are in a criminal trial and the prosecution has no What are the options of the accused before he enters a plea of
witnesses against you, do not invoke the right to speedy trial guilty or not guilty?
without insisting first on a trial.
But normally courts will give him 3 times, 3 chances to a. He can file a Motion for Bill of Particulars R116,
present evidence. If after 3 chances, no evidence yet could be SECTION 9. Bill of Particulars. The accused
presented by the prosecution, on the fourth hearing you now may, before arraignment, move for a bill of
insist on a trial. If not, then ask for the dismissal of the case on particulars to enable him properly to plead and
the ground of the violation of the right to speedy trial. And prepare for trial. The motion shall specify the
when your case is dismissed on that ground that is not a alleged defects of the complaint or information and
dismissal. That is an acquittal. The prosecution can no longer the details desired.
appeal. Now, suppose you are asked, X was acquitted, can the
prosecution file an MR? No, for you would put him on double b. He can move for the suspension of the arraignment
jeopardy. Can the prosecution move for an MNT? No, as that R116, SECTION 11. Suspension of Arraignment.
will put him in another danger of being convicted. Can the Upon motion by the proper party, the arraignment
prosecution appeal? No. How do you question an acquittal
shall be suspended in the following cases:
without violating the rules against double jeopardy? Rule 65.
Show that the judge has committed grave abuse of discretion (a) The accused appears to be suffering from an
amounting to lack or excess of jurisdiction. If the court has unsound mental condition which effectively renders
abused its discretion gravely, the first element of double him unable to fully understand the charge against
jeopardy which is the court should have competent jurisdiction him and to plead intelligently thereto. In such case,
is taken out of the picture. While appeal is prohibited, the court shall order his mental examination and, if
certiorari is not. Because when the court gravely abuses its necessary, his confinement for such purpose;
discretion, the acquittal was rendered without jurisdiction.
(b) There exists a prejudicial question; and
And an acquittal rendered jurisdiction is not a valid acquittal.
Therefore if the acquittal is wrong, he can still be charged. (c) A petition for review of the resolution of the
There is no double jeopardy. There is only one jeopardy. prosecutor is pending at either the Department of
Double jeopardy means double danger. Justice, or the Office of the President;provided, that
the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the
reviewing office. (12a)
Rule 116
Arraignment
Purpose: to comply with due process Illustration: When Napoles was arraigned for serious illegal
A person has a constitutional right to be informed of the nature detention, she moved for the suspension of her arraignment on
and cause of accusation. the ground that she was suffering from irregular high blood
pressure. Is that a ground for the suspension of arraignment?
The first duty of the judge in arraignment is to ask him if he NO! High blood pressure is not found in Sec. 11. <Sabi ng
has a counsel. If he has none, to ask him if he wants a counsel. lawyers sa likod, you should invoke unsound mind! Hehe..>

Rule 116, SECTION 6. Duty of Court to Inform Accused of his

Right to Counsel. Before arraignment, the court shall c. Motion to Quash. Rule 117, SECTION 1. Time to
inform the accused of his right to counsel and ask him if he Move to Quash. At any time before entering his
plea, the accused may move to quash the complaint
desires to have one. Unless the accused is allowed to defend or information.
himself in person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him. (6a)
Rule 116 actually has a very big chance of being asked on
several aspects.
Under our present rules, can the accused be arraigned through
his counsel? No. It must be personal to the accused.
The accused is asked on whether or not he pleads guilty or not
How is an accused arraigned? What are the matters to be guilty. He did not answer, what plea will be entered in the
asked during arraignment? Look at Rule 116. record? Not guilty.

1. The accused is given a copy of the

* A plea of guilty is an unconditional admission of guilt with
complaint/information. respect to the offense charged. It forecloses the right to defend
2. Reading the same in the language/dialect known to him oneself from said charge and leaves the court with no
3. Asking him whether he pleads guilty or not guilty. alternative but to impose the penalty fixed by law under the
circumstances. (People vs. Ng Pek, 81 Phil. 563). In this case,
the defendant was only allowed to testify in order to establish
mitigating circumstances, for the purpose of fixing the
 Dean Rianos Lecture 2014 73

penalty. Said testimony, therefore, could not be taken as a trial pre-requisite its action is perforce null and void. The acquittal,
on the merits, to determine the guilt or innocence of the therefore, being a nullity for want of due process, is no
accused. acquittal at all, and thus can not constitute a proper basis for a
In view of the assertion of self-defense in the testimony of the claim of former jeopardy (People vs. Cabero, 61 Phil. 121; 21
accused, the proper course should have been for the court a Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445)
quo to take defendant's plea anew and then proceed with the ||| (People v. Balisacan, G.R. No. L-26376, August 31, 1966)
trial of the case, in the order set forth in Section 3 Rule 119 of
the Rules of Court:
* REMEDIAL LAW; CRIMINAL PROCEDURE; PLEA OF
"SEC. 3. Order of trial. The plea of not guilty having been GUILTY; PLEA OF GUILTY TO THE CRIME CHARGED
entered, the trial must proceed in the following order: JUSTIFIES IMPOSITION OF PENALTY TO WHICH
"(a) The fiscal, on behalf of the People of the Philippines, ACCUSED PLEADED AND NOT TO LESSER PENALTY.
must offer evidence in support of the charges. It must be emphasized that accused-appellant did not plead
"(b) The defendant or his attorney may offer evidence in to a lesser offense but pleaded guilty to the rape charges and
support of the defense. only bargained for a lesser penalty. In short, as aptly observed
by the Solicitor General, he did not plea bargain but made
"(c) The parties may then respectively offer rebutting evidence conditions on the penalty to be imposed. This is erroneous
only, unless the court, in furtherance of justice, permit them to because by pleading guilty to the offense charged, accused-
offer new additional evidence bearing upon the main issue in appellant should be sentenced to the penalty to which he
question. pleaded. It is the essence of a plea of guilty that the accused
"(d) When the introduction of evidence shall have been admits absolutely and unconditionally his guilt and
concluded, unless the case is submitted to the court without responsibility for the offense imputed to him. Hence, an
argument, the fiscal must open the argument, the attorney for accused may not foist a conditional plea of guilty on the court
the defense must follow, and the fiscal may conclude the by admitting his guilt provided that a certain penalty will be
same. The argument by either attorney may be oral or written meted unto him.
or partly written, but only the written arguments, or such 2. ID.; ID.; ID.; CONDITIONAL PLEA EQUIVALENT TO
portions of the same as may be in writing, shall be preserved PLEA OF NOT GUILTY: NO DOUBLE JEOPARDY;
in the record of the case." SINCE CONVICTION WAS BASED ON A VOID PLEA
In deciding the case upon the merits without the requisite trial, BARGAINING. Accused-appellant's plea of guilty is
the court a quo not only erred in procedure but deprived the undoubtedly a conditional plea. Hence, the trial court should
prosecution of its day in court and right to be heard. have vacated such a plea and entered a plea of not guilty for a
This Court now turns to Section 2, Rule 122 of the Rules of conditional plea of guilty, or one subject to the proviso that a
Court, which provides that: "The People of the Philippines can certain penalty be imposed upon him, is equivalent to a plea of
not appeal if the defendant would be placed thereby in double not guilty and would, therefore, require a full-blown trial
jeopardy." The present state of jurisprudence in this regard is before judgment may be rendered. In effect, the judgment
that the above provision applies even if the accused fails to file rendered by the trial court which was based on a void plea
a brief and raise the question of double jeopardy bargaining is also void ab initio and can not be considered to
(People vs. Ferrer, L-9072, October 23, 1956; People vs. Bao, have attained finality for the simple reason that
106 Phil. 243; People vs. de Golez, 108 Phil. 855) a void judgment has no legality from its inception. Thus, since
the judgment of conviction rendered against accused-appellant
The next issue, therefore, is whether this appeal placed the is void, double jeopardy will not lie.
accused in double jeopardy. It is settled that the existence of a
plea is an essential requisite to double jeopardy 3. ID.; ID.; ID.; APPELLANT'S FAILURE TO QUESTION
(People vs. Ylagan, 58 Phil. 851; People vs. Quimsing, L- THE PROCEDURAL ERRORS IN THE FIRST
19860, December 23, 1964). In the present case, it is true, the ARRAIGNMENT IS DEEMED A WAIVER OF HIS RIGHT
accused had first entered a plea of guilty. Subsequently, TO QUESTION THE SAME. Nonetheless, whatever
however, he testified, in the course of being allowed to prove procedural infirmity in the arraignment of the accused-
mitigating circumstances, that he acted in complete self- appellant was rectified when he was re-arraigned and entered a
defense. Said testimony, therefore as the court a new plea. Accused-appellant did not question the procedural
quo recognized in its decision had the effect of vacating his errors in the first arraignment and having failed to do so, he is
plea of guilty and the courta quo should have required him to deemed to have abandoned his right to question the same and
plead anew on the charge, or at least direct that a new plea of waived the errors in procedure.
not guilty be entered for him. This was not done. It follows 4. ID.; ID.; PLEA OF GUILTY TO CAPITAL OFFENSE;
that in effect there having been no standing plea at the time the LEGAL REQUIREMENTS OF SUCH PLEA. Under the
court a quo rendered its judgment of acquittal, there can be no present rule, if the accused pleads guilty to capital offense,
double jeopardy with respect to the appeal herein. 1 trial courts are now enjoined: (a) to conduct searching inquiry
Furthermore, as afore-stated, the court a quo decided the case into the voluntariness and full comprehension of the
upon the merits without giving the prosecution any consequences of his plea; (b) to require the prosecution to
opportunity to present its evidence or even to rebut the present evidence to prove the guilt of the accused and the
testimony of the defendant. In doing so, it clearly acted precise degree of his culpability; and (c) to ask the accused if
without due process of law. And for lack of this fundamental he so desires to present evidence in his behalf and allow him
 Dean Rianos Lecture 2014 74

to do so if he desires. This Court, in a long line of decisions

imposed upon trial judges to comply with the procedure laid SECTION 1. Arraignment and Plea; How Made.
down in the rules of arraignment, particularly the rules
governing a plea of guilty to a capital offense in order to (a) The accused must be arraigned before the court where the
preclude any room for reasonable doubt in the mind of either complaint or information was filed or assigned for trial. The
the trial court or of this Court, on review, as to the possibility arraignment shall be made in open court by the judge or clerk
that there might have been some misunderstanding on the part by furnishing the accused with a copy of the complaint or
of the accused as to the nature of the charges to which he information, reading the same in the language or dialect
pleaded guilty and to ascertain the circumstances attendant to known to him, and asking him whether he pleads guilty or not
the commission of the crime which justify or require the guilty. The prosecution may call at the trial witnesses other
exercise of a greater or lesser degree of severity in the than those named in the complaint or information. CTaIHE
imposition of the prescribed penalties. Apart from the (b) The accused must be present at the arraignment and must
circumstances that such procedure may remove any doubt that personally enter his plea. Both arraignment and plea shall be
the accused fully understood the consequences of his plea is made of record, but failure to do so shall not affect the validity
the fact that the evidence taken thereon is essential to the of the proceedings.
fulfillment by this Court of its duty of review of automatic (c) When the accused refuses to plead or makes a conditional
appeals from death sentences. plea, a plea of not guilty shall be entered for him. (1a)
5. ID.; ID.; ID.; CASE AT BAR. We have carefully (d) When the accused pleads guilty but presents exculpatory
reviewed the record of this case and are convinced that the evidence, his plea shall be deemed withdrawn and a plea of
trial judge has faithfully discharged his bounden duty as not guilty shall be entered for him. (n)
minister of the law to determine the voluntariness and full
understanding of accused-appellants' plea of guilty. The (e) When the accused is under preventive detention, his case
absence of the transcript of stenographic notes of the shall be raffled and its records transmitted to the judge to
proceedings during the arraignment do not make the procedure whom the case was raffled within three (3) days from the
flawed. The minutes of the proceedings indubitably show that filing of the information or complaint. The accused shall be
the judge read the Informations to the accused-appellant both arraigned within ten (10) days from the date of the raffle. The
in English and Tagalog, asked him questions as to his pre-trial conference of his case shall be held within ten (10)
understanding of the consequences of his plea, his educational days after arraignment. (n) aIDHET
attainment and occupation. Accused-appellant could have (f) The private offended party shall be required to appear at
known of the consequence of his plea having pleaded twice to the arraignment for purposes of plea bargaining, determination
the charges against him. In fact, in the two (2) letters sent to of civil liability, and other matters requiring his presence. In
the trial court judge, accused-appellant not only admitted his case of failure of the offended party to appear despite due
"sins" but also asked for forgiveness and prayed for a chance notice, the court may allow the accused to enter a plea of
to reform. guilty to a lesser offense which is necessarily included in the
6. ID.; ID.; IMPROVIDENT PLEA OF GUILTY; offense charged with the conformity of the trial prosecutor
IMPROVIDENT PLEA OF GUILTY LOSES alone. (cir. 1-89)
SIGNIFICANCE WHEN THE CONVICTION IS (g) Unless a shorter period is provided by special law or
PREDICATED ON EVIDENCE PROVING THE Supreme Court circular, the arraignment shall be held within
COMMISSION OF THE CRIME. While we have in a thirty (30) days from the date the court acquires jurisdiction
catena of cases set aside convictions based on pleas of guilty over the person of the accused. The time of the pendency of a
in capital offenses because of the improvidence of the plea, we motion to quash or for a bill of particulars or other causes
did so only when such plea is the sole basis of the judgment of justifying suspension of the arraignment shall be excluded in
the condemnatory judgment. Thus, when the trial court in computing the period. (sec. 2, cir. 38-98)
obedience to this Court's injunction, receives evidence to
determine precisely whether or not the accused has erred in
admitting guilt, the manner in which the plea of guilty is made SECTION 2. Plea of Guilty to a Lesser Offense. At
loses legal significance, for the simple reason that the arraignment, the accused, with the consent of the offended
conviction is predicated not on the plea but on the evidence party and the prosecutor, may be allowed by the trial court to
proving the commission by the accused of the offense plead guilty to a lesser offense which is necessarily included
charged. In such case, it cannot be claimed that defendant was in the offense charged. After arraignment but before trial, the
sentenced to death without having been previously informed accused may still be allowed to plead guilty to said lesser
of the nature of the charges against him and of the qualifying offense after withdrawing his plea of not guilty. No
and aggravating circumstances recited in the information, as amendment of the complaint or information is necessary. (sec.
he is fully apprised not only of the allegations in the 4, circ. 38-98)
information but of the entire evidence of the prosecution.
||| (People v. Magat, G.R. No. 130026, May 31, 2000) Illustration: X was accused of rape with homicide where the
penalty is reclusion perpetua. X pleaded guilty to that capital
offense. The court immediately imposed upon him penalty. Is
When there is a conditional plea, the plea should be not guilty the court correct? No. When one pleads guilty to a capital
and the hearing should be held. offense, the court has the duty to conduct searching questions
 Dean Rianos Lecture 2014 75

to determine the voluntariness of the plea and the full you did not use the other grounds, they are also waived. What
comprehension of the consequences of the plea. The court will are those grounds that are not waived? paragraphs (a), (b),
also order to prosecute to prove the guilt of the accused and (g), and (i) of section 3 of this Rule.
determine the precise degree of culpability. Sec. 3. But when
the offense is not capital, (i.e. Homicide) Rule 116, SECTION
4. Plea of Guilty to Non-capital Offense; Reception of When there is a ground for MTQ, the court is not obligated to
Evidence, Discretionary. When the accused pleads guilty to dismiss. If the defect can be corrected by amendment, the
a non-capital offense, the court may receive evidence from the court will order amendment. For example, if the facts actually
parties to determine the penalty to be imposed. state the charge wrongly or defectively, the court will order
the prosecutor to make the proper corrections because the
court is not obligated to dismiss the case. If it can be corrected
RULE 117 then correct it.
Motion to Quash
- Also an omnibus motion What cannot be corrected is lack of jurisdiction. It is very
- Memorize the grounds difficult to correct it if the court really has no jurisdiction.
SECTION 3. Grounds. The accused may move to quash
the complaint or information on any of the following Rule 117, SECTION 4. Amendment of Complaint or
grounds: Information. If the motion to quash is based on an alleged
defect of the complaint or information which can be cured by
(a) That the facts charged do not constitute an offense; amendment, the court shall order that an amendment be made.
(4a)
(b) That the court trying the case has no jurisdiction over the If it is based on the ground that the facts charged do not
offense charged; constitute an offense, the prosecution shall be given by the
court an opportunity to correct the defect by amendment. The
(c) That the court trying the case has no jurisdiction over the motion shall be granted if the prosecution fails to make the
person of the accused; amendment, or the complaint or information still suffers from
the same defect despite the amendment.
(d) That the officer who filed the information had no
authority to do so; * pag na-grant ang MTQ, na-dismiss ang case, pwede pa bang
i-refile ang case kahit na sabihin mo di na pwede kasi double
(e) That it does not conform substantially to the prescribed jeopardy? Pwede maka-refile unless the grounds are
form; prescription and double jeopardy

(f) That more than one offense is charged except when a

single punishment for various offenses is prescribed by law; Now, lets learn the concept of Double jeopardy. Double
jeopardy means double danger. So that there could be double
(g) That the criminal action or liability has been extinguished; danger for being penalized for the offense, there must be a
first danger or first jeopardy. If there is no first danger, there
(h) That it contains averments which, if true, would constitute would be no second danger; there would be no double
jeopardy.
a legal excuse or justification; and

(i) That the accused has been previously convicted or Requisites for the first jeopardy:
acquitted of the offense charged, or the case against him was
a) A court of competent jurisdiction
dismissed or otherwise terminated without his express
b) A valid complaint or information
consent. (3a)
c) A valid plea or arraignment
d) Previous conviction or a previous acquittal or
SECTION 9. Failure to Move to Quash or to Allege Any dismissal without the express consent of the accused.
Ground Therefor. The failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint When all of these are present he can no longer be sued for the
or information, either because he did not file a motion to same offense or an attempt or frustration of that offense or of
quash or failed to allege the same in said motion, shall be an offense that includes that offense or is necessarily included
deemed a waiver of any objections except those based on the therein.
grounds provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)
X was convicted by the court with murder. The court has
jurisdiction. There was a valid information, valid plea;
* if you do not file a motion to quash the grounds for motion convicted. First jeopardy commences. He cannot be sued for
to quash are waived. And if you filed a motion to quash and murder, frustrated murder, attempted murder, all those
 Dean Rianos Lecture 2014 76

included there, homicide, frustrated homicide, attempted

homicide, physical injuries. Rule 118
Pre-trial
X was convicted of murder by MTC. Everybody forgot the SECTION 2. Pre-trial Agreement. All agreements or
law. after conviction one prosecutor remembered that RTC is admissions made or entered during the pre-trial conference
in the jurisdiction of RTC. Can he be charged of murder in shall be reduced in writing and signed by the accused and
RTC? Yes. The first element of first jeopardy which was a counsel, otherwise, they cannot be used against the accused.
court of competent jurisdiction is absent. Therefore, when he The agreements covering the matters referred to in section 1 of
was charged of murder by MTC there was no danger of being this Rule shall be approved by the court.
validly imprisoned as it was a court without jurisdiction.
6. Very strict sa criminal case. Walang ganyan sa civil
case.
An information for homicide was filed in RTC Manila. It was
signed and certified by the city fiscal of Angeles City. The Rule 119
accused pleaded not guilty. Can he be charged again of SECTION 23. Demurrer to Evidence. After the prosecution
homicide in the same court by an information signed by the
rests its case, the court may dismiss the action on the ground
city fiscal of Manila. Yes. Because the officer who signed the
information is not authorized to do so, there was no valid of insufficiency of evidence (1)on its own initiative after
information. The city fiscal of Angeles City cannot file an giving the prosecution the opportunity to be heard or (2) upon
information in Manila. demurrer to evidence filed by the accused with or without
leave of court.
X was sued for adultery under an information filed by the
If the court denies the demurrer to evidence filed with leave of
prosecutor of the city of manila. It was filed in manila because
the crime was committed there. She was acquitted. Can it be court, the accused may adduce evidence in his defense. When
refiled? Yes. The crime of adultery can only be filed upon the the demurrer to evidence is filed without leave of court, the
complaint of the offended party not upon information. This is accused waives the right to present evidence and submits the
a private crime. Read Rule 110, Sec. 5. x x x The crimes of case for judgment on the basis of the evidence for the
adultery and concubinage shall not be prosecuted except upon prosecution. (15a)
a complaint filed by the offended spouse. The offended party
cannot institute criminal prosecution without including the The motion for leave of court to file demurrer to evidence
guilty parties, if both are alive, nor, in any case, if the shall specifically state its grounds and shall be filed within a
offended party has consented to the offense or pardoned the
non-extendible period of five (5) days after the prosecution
offenders. x x x
rests its case. The prosecution may oppose the motion within a
non-extendible period of five (5) days from its receipt.
You are required to sue both offenders in adultery and
concubinage. The defences available are consent and pardon. If leave of court is granted, the accused shall file the demurrer
to evidence within a non-extendible period of ten (10) days
Kailangan may previous acquittal or previous conviction. from notice. The prosecution may oppose the demurrer to
Dismissal is not acquittal. Dismissal lang. Dapat without his evidence within a similar period from its receipt.
express consent. If my case is dismissed by the prosecutor,
hindi man lang ako tinatanatong basta dinismiss lang at ni- The order denying the motion for leave of court to file
refile, I can invoke double jeopardy. It was not without my demurrer to evidence or the demurrer itself shall not be
express consent. Kapag ikaw ang nag-file ng MTQ at reviewable by appeal or by certiorari before judgment. (n)
dinismiss ng court, malaki ang posibilidad na pwede ma-refile.
Because it was dismissed with your consent. Ikaw mismo ang * in criminal case, the court can dismiss the case on its own
nag-file ng MTQ. Maliban na lang kung ang ground mo sa initiative. But when it dismisses the case, it must first give the
MTQ is prescription or double jeopardy, di mo na yan
prosecution the opportunity to be heard. The ground in
marefile.
criminal case for demurrer - insufficiency of evidence. In the
civil case it has the same concept but named differently- under
* The doctrine that reckless imprudence under Article 365 is a the facts and law the plaintiff is not entitled to the relief.
single quasi-offense by itself and not merely a means to
commit other crimes such that conviction or acquittal of such No need of leave of court for demurrer in civil case. But in
quasi-offense bars subsequent prosecution for the same quasi- criminal case there are 2 types of demurrer.
offense, regardless of its various resulting acts, undergirded
this Court's unbroken chain of jurisprudence on double 1. With leave of court
jeopardy as applied to Article 365 starting with People v. 2. Without leave of court
Diaz, decided in 1954|||(Ivler y Aguilar v. Modesto-San Pedro,
G.R. No. 172716, November 17, 2010)
 Dean Rianos Lecture 2014 77

Upon granting the demurrer in the civil case, the case is Settlement of estates
dismissed dahil MTD yan. Plaintiff can appeal. Illustrations:
Upon granting the demurrer in the criminal case, the case is 1. My only living parent died. I am the only heir. There is no
dismissed. Hindi yan dismissal. Ang tawag dun ay acquittal will. Papa left considerable estate in both personal and real
kaya walang appeal. properties. What is the most efficient way of settlement of the
estate of my deceased parent? I will simply execute an
2 kinds of dismissal that even with the consent of the accused affidavit of self-adjudication or self-adjudication by a sole
it is not dismissal but actually an acquittal: heir.
a) MTD on the ground of violation of the right to
speedy trial. Suppose there are debts, I can still do that provided I pay for
b) Demurrer to evidence moved by the accused. the debts. Suppose there are taxes, I will have to pay for it.
You file your affidavit with the Register of Deeds. RD will
order the publication of (NOT THE AFFIDAVIT) the notice
There is also an MR/MNT in a criminal case. Rule 121 that there was an affidavit of self-adjudication in newspapers
SECTION 2. Grounds for a New Trial. The court shall of general circulation for 3 consecutive weeks. If all has been
grant a new trial on any of the following grounds: complied with, RD will prepare the necessary changes in the
(a) That errors of law or irregularities prejudicial to the real property.
substantial rights of the accused have been committed during
the trial; (sa civil case is FAMEN) 2. Daddy died and left substantial amount of assets. No debts,
(b) That new and material evidence has been discovered which all taxes paid. There is a will. I am the only heir in the will. I
the accused could not with reasonable diligence have executed an affidavit of self-adjudication. It was recognized
discovered and produced at the trial and which if introduced by the RD after the proper publication. Can I execute an
and admitted would probably change the judgment. (sa civil affidavit of self-adjudication? No. Rule 75, Section 1. No will
case is NDE) shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due
SECTION 3. Ground for Reconsideration. The court shall execution.
grant reconsideration on the ground of errors of law or fact in
the judgment, which requires no further proceedings
3. X died and he had substantial estate. He had no will nor
heirs. What principle will come in? Rule 91. Escheats. It is a
Meron ding appeal sa criminal case. process by which the government claims property where there
is no possible private owner anymore. The philosophy is so
Ang fresh period of 15 days is also applicable to criminal case. that the private individuals will not be quarrelling over the
Yu v. Tatad. estate and so the government will come to the picture. The
government files an escheat proceeding through the SolGen or
its representatives. The publication here in escheats is not 3
SPECIAL PROCEEDING consecutive weeks but rather 6 consecutive weeks. It is not the
national government which will be the beneficiary of the
RULE 1, SECTION 3. Cases Governed. These Rules shall
estate. It will be the city or municipality concerned. Suppose
govern the procedure to be observed in actions, civil or an heir appears, he must file a claim within 5 years from the
criminal, and special proceedings. x x x distribution of estate.

(c) A special proceeding is a remedy by which a party seeks to

establish a status, a right, or a particular fact. 4. X died and he had substantial estates. He died without a
will. He had several heirs. Assuming the debts and taxes are to
Are the special proceedings outlined in the rules of court be paid willingly by the heirs, how is the estate settled?
exclusive? No. There are also those found outside the rules of a) extrajudicial settlement like a compromise or amicable
court i.e, corporate rehabilitation, insolvency, suspension of settlement, the heirs will settle the estate among themselves
papers, arbitration, writ of amparo, habeas data, etc.
but if they could not agree on how the settlement could be
made, ther are 2 ways:
A writ of Amparo is a special proceeding. It is a remedy by a) One may file for a petition for letters administration
which a party seeks to establish a status, a right or particular b) One may file for a petition for partition no longer a
fact. It is not a civil nor a criminal action, hence, the spec pro but already a special civil action R69.
application of the Revised Rule on Summary Procedure is
seriously misplaced.||| (De Lima v. Gatdula, G.R. No. 204528,
February 19, 2013) 5. X died with a will and several heirs. They brought the will
to their lawyer and the latter executed a deed of extrajudicial
partition among the heirs strictly following the will.
 Dean Rianos Lecture 2014 78

This is not valid because there is a will which must be RA 10172 This allow corrections of entries in City or
probated first. Municipal Civil Registrar, Clerks of Courts of the Sharia
Courts, or the Consul General
Probate
How to commence probate? The testator himself during his RA 9048 allows:
lifetime filed a petition for probate, can this be done? Yes! 1. Correction of entries in the civil registry because of
Can there be allowance of the will without formally filing a clerical or typographical error (an error in writing,
petition? Yes, the one in custody will deliver to the clerk of transcribing in the course of the performace of clerk
court of the court having jurisdiction and that is equivalent to duty)
the filing of the petition. The clerk of court is now going to 2. Change in First name or Nickname (means any
send notices to devisees, heirs and legatees. It is like second name after your first name)
commencing the petition. Example: your name is Maria Felisa. First name is
Maria, second name is Felisa. Hindi Feling, or
mayang, or isay.
Who commences the petition? Executor, legatee, devisee, heir c.f. Lee v. CA
or any person interested to the estate.
You cannot change entries in the civil register because to
change is to put something else to supplant the original.
Is there a publication? Yes. What is the issue in the probate of Correction is to set right or to make right. But with respect to
the will? Whether or not the will was duly executed. It is about first name or nickname, it could not only be changed, it could
the extrinsic validity of the will. The probate court has no also be corrected. Other entries cannot be changed but can
jurisdiction to determine the real ownership of the property. only be corrected.
Its duty is to ascertain: Whether the formalities were followed.
Whether the testator was of unsound mind. So you cannot change the surname but you may correct it for
clerical or typographical error. If my surname is Riano, I
Is there are instance where the court can deal with the intrinsic cannot, through this law, be changed to Mariano or
validity of the will or ownership of the property? Yes. If all Rianobaby. If I want it to be changed, it cannot be done
the people involved are all heirs and they agree to such administratively, I will go to court through Rule 103. If my
determination. citizenship in my birth certificate is written as Mexican, I
cannot change it administratively to Filipino, I have to go to
court. But unless, it is a clear clerical or typographical error. It
Writ of Amparo is not correct to say that a surname cannot be corrected. It
What rights does it protect? Life, liberty or security. Not cannot be changed without a judicial order.
property.
GR: Art. 412 and Art. 376 NCC
It involves Forced disappearances and extrajudicial killings. Go to Rule 103 and Rule 108.

You dont file it in the MTC. The lowest court you can go to is ARTICLE 412.No entry in a civil register shall be changed or
RTC, going up including SB, CA and SC. corrected, without a judicial order.
If you lose in the lower courts, go to SC under Rule 45 but you ARTICLE 376.No person can change his name or surname
can raise question of facts or mixed questions of facts and without judicial authority.
laws as an exception to the rule that only questions of law can
be raised on Rule 45. (writ of amparo. writ of habeas data, writ
of kalikasan) A correction of the surname must be in relation to other
available documents.
Hyphen is omitted. There are names that are hyphenated. The
Rule 103 and Rule 108 hyphen is part of the name, hence, if omitted, the name is
Change of Name and Correction of Entries in the Civil considered misspelled.
Registers
Example:
Not all change of name and correction of entries will use Rule His father is Cipriano Ladines Mag-aso while his mother is
103 and Rule 108. Concepcion Tan Julag-ay.
The names of his parents were correctly entered in his birth
RA 9048 certificate, but his own name is entered as Santiago Julagay
Magaso when it should be Santiago Julag-ay Magaso.
This is a clerical error within the meaning of R.A. No. 9048
 Dean Rianos Lecture 2014 79

This is not a change of surname. This is setting right what has (1) The petitioner finds the first name or nickname to be
to be corrected. Ang hindi pwede na gawin through the Civil ridiculous, tainted with dishonor or extremely difficult to write
Registrar ay kung baguhin niya ang kanyang apilyedo from or pronounce.
Mag-aso to Mag-pusa. Contest sya sa court.
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
Pumasok ang RA 10172. Sabi nito na pwede rin daw ma-
known by that by that first name or nickname in the
correct ang following:
community: or
Date of birth- only the month and the day. Hindi pwedeng i-
correct ang year of birth. Ito ang kini-criticize na law dahil (3) The change will avoid confusion.
kung ang mali ay ang year of birth dito papasok ang RA 9048.
Sabi ng Civil Registrar, <tama ang Civil Registrar>
Case 1. The first name is ridiculous.
Kahit sinasabing di pwedeng palitan ang year of birth, kung
hayagan namang clerical error, pwede i-correct. Hindi
For reason unknown to him, his parents, Adelaida Dominguez
change.
Purissima and Dominador Angeles Santos, registered him with
the name Lucifer Purissima Santos. Actually, "Lucifer" means
Ang correction kasi yung hayagang mali, tinatama mo. "morning star" in Latin. Sometimes, it is referred to as the
planet Venus when appearing as the morning star. However, to
Nasa records, date of birth ng ama, March 20, 1924.
many, "Lucifer" is a devil's name, a fallen rebel archangel.
Date of birth ng ina, January 25, 1930. Because of this, Lucifer Purissima Santos becomes object of
Ang bata isinilang, November 10, 1950. Yan ang totoo. laughter. In countless occasions, people twitted him as the
"devil man".
Pero nung kumuha siya ng birth certificate para mag-abroad,
ang kanyang date of birth, November 10, 1850.. hehe... nauna
pa syang isinilang sa kanyang magulang. Hehe... Tired of being ridiculed, he now wants to change his first
name to Luisito. He can do this under R.A. No. 9048. In this
case, it should be considered that a first name may appear
Ang sabi ng nag-oopose, bawal sa RA 10172 na palitan ang ridiculous to others while it may not be so to some. To the
year of birth, nakalagay dun month and day. Ang sabi ng Civil petitioner, he may consider his first name as ridiculous, while
Registrar, kung pwede lang magsalita ng masama, Ulol ba to the MCR such first name is not ridiculous. To avoid conflict
kayo? this is a patent and clearly clerical error. This is not a on the possible contrasting perception of what is and what is
change in the year of birth but only a correction. It is not not a ridiculous first name, the MCR shall rely heavily on the
possible for a child to be born almost 100 years before the supporting papers, including third party testimony, in deciding
parents. the petition without regard as to what he believes is a
ridiculous first name.
Sex basta patently clearly a clerical error.
Case 2. The first name is tainted with dishonor.

Nagkakadiskubrehan to pag kumukuha ng passport. Nangyari Example: Felix Cruz de Guzman is a businessman who owns
sakin to. Pinapalitan ko, civilly administratively. Hindi several manufacturing companies, and a member of several
correction, but change, pwede yun. Ground is I have used that business and professional associations. However, he has three
continuously and habitually and I have been publicly known namesakes who have criminal records with NBI and PNP. The
by that. first namesake was convicted of rape with homicide, who
Ang pangalan ko mahaba din dahil gusto ng mga lolo at lola escaped from detention; the second with acts of
ko nandun ang mga pangalan nila! @.@ Willard Avelino lasciviousness; and the third with murder. In many occasions,
Antonio Ronaldo Gregorio Riano. Nung akoy Grade 1, pag he experienced difficulty of getting clearance from either or
sinabi ng teacher isulat ang inyong pangalan, sila both NBI and PNP. In fact, when he applied passport for the
nagdudrawing na, ako sa pangalan pa lang. first time, he was subjected to further investigation because
one of his namesakes was one of the blacklisted individuals
who have a "hold departure order".
Her name is Juanita from elementary to college. Pag-kuha
niya ng birth certificate, the name pala is Jaunita. Clerical Felix Cruz de Guzman wants to change his first name from
error based on other available documents. Correction yan. Felix to Felixberto. Can he do it-under R.A. No. 9048? Yes,
Lahat ng family members niya ang apilyedo ay Corpuz sa he can do it provided he can support his allegation with
kanya ay Corpos. Pinayagang pinalitan. It was corrected. convincing and concrete proofs that- indeed, his first name is
tainted with dishonor, like a certification from NBI concerning
his namesakes, a copy of the "hold departure order" from
What are the grounds for the change of First name and Bureau of Immigration, and others.
nickname? RA 9048, Section 4. Grounds for Change of First
Name or Nickname. The petition for change of first name or
nickname may be allowed in any of the following cases:
 Dean Rianos Lecture 2014 80

Case 3. The first name is extremely difficult to write or and concrete proofs that he has been using Anthony since
pronounce. childhood.

Her mother is very fond of long names. In fact, her elder If she does want to change her first name from Ma. Cecilia to
sister's first name consists of 19 letters. In her case, her name Maricel, she can do so under R.A. No. 9048. She should
is Mirasoledardanellamorenacacharel which consists of 32 submit as many supporting papers as these are available to her
letters. She now wants her first name to be changed to Joy. In in order to convince the CIMCR that the first name she wants
another case, a mother gave a first name to her first son to adopt has been habitually and continuously used by her.
consisting of first names of several well-known personalities Case 2. The petitioner has been publicly known by that
in show business. Thus, the son had this first name: Fernando first name or nickname in the community.
Joseph Paquito Marlon Robin Carlos Rogelio. Because of the
difficulty of writing very long compound name, he wants his Example: His name is Baby James Encarnacion Cruz. He is
first name to be changed to Gil. now 45 years old, and has been very popular with his first
name as Baby James. In fact, he used that first name very
In both cases, the first names are extremely difficult to write effectively in politics. He was elected as municipal mayor
or pronounce because of their length. The affected individuals when he was 25 years old, and now he is a governor.
can have their first names changed under R.A. No. 9048.
Everybody calls him Baby James, formally and informally.
When he got married, that name was also entered in his
marriage certificate. Lately, he received an invitation to attend
an international convention in USA. For his travel abroad, he
now needs his birth certificate to apply for a passport and a US
visa. Much to his surprise, his first name in his birth certificate
Second ground
is not Baby James but Jimmy Boy. As he has been publicly
The new first name or nickname has been habitually and
known in the community as Baby James, he can have his
continuously used by the petitioner and he has been publicly
registered first name, Jimmy Boy, changed in accordance with
known by that first name or nickname in the community.
R.A. No. 9048.
Case 1. Habitual and continuous use of the first name to be
Third ground
adopted.
The change will avoid confusion.
Case 1. Petitioner's present first name creates confusion
Example 1: Maricel Limon dela Guardia is now 22 years old.
She finished college and is now a professional nurse. Because
of an opportunity to work abroad, she applied for a passport. Example: Here is a case of two neighbors in barangay San
Guillermo. They have the same first name Milagros, same
middle initial, A, and same last name Monteja. The middle
As a supporting document to her application for passport, she name of the first woman is Aguilar while the second woman
obtained her birth certificate from NSO. She was surprised to has Arguendo. Both women usually write their name as
find out that her registered first name is different from what Milagros A. Monteja. It so happened that in barangay San
she' is presently using. In her birth certificate, her first name Guillermo, there is no house number that could guide the
was recorded as Ma. CecilIa. Because of this inconsistency postman in delivering mails. Consequently, a letter intended
between her recorded first name and the first name she has for Milagros Aguilar Monteja is sometimes delivered to
been using since childhood, she lost the opportunity to work Milagros Arguendo Monteja, or otherwise. The postman
abroad. cannot be faulted because both women are using Milagros A.
Monteja. To avoid further confusion, Milagros Aguilar
Example 2: He has been using the name Anthony Celies Monteja decides to have her first name changed to Carmela.
Moriones since childhood. All his school records from She can do this under R.A. No. 9048.
elementary to college, including his employment records, Important notes in connection with the change of first name:
show his name as Anthony Celles Moriones. Lately, when he
requested his birth certificate from OCRG in connection with Section 5 of R.A. No. 9048 requires that the petition for
his application for passport, he found out that his registered change of first name shall be published at least once a week
name was Marc Anthony Celles Moriones. The Passport for 2 consecutive weeks in a newspaper of general circulation.
Division refused to issue to him a passport under the name In connection with this publication, care should be taken with
Anthony Celles Moriones. regard to the first name to be published. If a wrong name is
published, the publication, even with an affidavit from the
As he needed the passport very badly, he applied for change of publisher, is not considered compliance with the requirement
his first name from Marc Anthony to Anthony on the ground of Section 5 of R.A. No. 9048.
that he has habitually and continuously used the latter first
name since childhood. Will his petition be considered In one case, a petition for change of name was disapproved by
appropriate under R.A. No. 9048? The answer is yes, provided the Supreme Court because of the failure to comply with the
he should be able to support his allegation with convincing requirement of publication. The Supreme Court said: Petitions
 Dean Rianos Lecture 2014 81

for a change of name are proceedings in rem. Therefore, strict

compliance with the requirements of publication is essential,
for it is by such means that the Court acquires jurisdiction. If
the petitioner's name is spelled ''Jayme ", but the published
order spells it as ''Jaime' the error is substantial because the
publication did not correctly identify the party to said
proceedings. The difference of one letter in a name may
indeed means the distinction of identities of different persons.
(Jayme S. Tan vs. Republic, L-16384, April 26, 1962)37

When a petition for change of first name is granted by the

C/MCR, and such decision is affirmed by the CRG, the former
shall carry out the decision by annotating the fact of change of
first name in the successful petitioner's birth certificate. No
original entry shall be physically erased, canceled, changed or
obliterated in the birth certificate. The successful petitioner
shall not be issued any amended birth certificate. This is in
line with a decision of the Supreme Court: If a change of name
is authorized, the original entry must not be erased or
canceled. The proper way would be to make the proper
marginal corrections or annotations.