Dura Lex Pyrex (Diaries of a struggling Law student)

Dean Q and the Maroon 46

2010-03-09T23:33:00.000-08:00

MASTER BLASTER
Neil Bravo

Dean Q was grinning from ear to ear on Saturday night.

For those who don’t know Dean Q, he is Atty. J Melchor Quitain, Dean of the College of Law of the University of Mindanao, and former City Legal Officer.

Dean Q, looking dapper in jusi barong tagalong, proudly gave tribute to his students in the College of Law that Saturday night in one glitzy and glamorous event hosted by the Juniors led by my kababayan and active student governor Abdul Kader Tambuang.

Indeed, I will not contest Dean Q’s declaration. He was the night’s most handsome guy. No one objected. Not even Abdul. I smiled from my seat submitting to the declaration and declaring my inhibition to contest the same.

I did my own bold declarations too. Objectionable but everyone agreed to let go. I did the class prophecy on behalf of the graduating class which I have nicknamed UM’s “Maroon 46.”

I have not made significant predictions in my life that went true to form. But this one was the biggest gamble. A 100% passing for the school’s bar candidates come September. Never has it happened. Not even close. That is why I know for sure only myself believed in the prophecy. Not even my good buddy Ronnel believes me. Not even Glendale who was adjudged best dressed among ladies. Not even Atty. Santos Torrena who came up to me after the program.

I have made it clear though. The purpose of a prophecy is not to tell the truth but to make it happen. Making it happen now lies on the shoulders of those who will take the biggest challenge in September.

But I will stand by my first prediction for the night. That one goes to Dean Q who is poised to run for one of the Council seats in the city’s first district.

I hope my luck bails me out from these predictions. I’ll keep my fingers crossed for Dean Q and the Maroon 46. This early, I run a short list that includes Dean Q, former PSC chair Butch Ramirez and good friend Nonoy Militar.

Talk about luck, Colleague Roy Geonzon is one lucky guy.

The DXUM Radyo Ukay station manager won the recent friendly golf event among friends of Philip Morris at the Rancho Palos Verdes. Roy was a last minute substitute for the absent Leo Palo of the Mindanao Daily Mirror and should be working on that day when he got a late call from Edith Regalado. Roy would’ve said no but Edith knows her way. She called up Roy’s boss Willie Torres and the rest was history.

Roy received an “order” from the Big Boss to play that day.

If you are a guy like Roy and your boss orders you to play, you must be the luckiest guy on earth. That’s because you have a boss who’s very much into sports.

And so, Roy went on to beat the rest of us in our class. Had he not played, another colleague, Bong Gonzaga, would have won it. Bong finished runner-up instead, although to his consolation, Bong proved luckier late in the night as he won the top prize in the raffle—a brand new golf bag. He also came close to winning the poker fun tournament.

The next night, the guys were back again for one late night out. This time, there was a lot of pigging out and a lot of San Mig Lite bottles to down. No more Grey Goose. No more Scotch 7. But the night was made special with the presence of vice presidential candidate Loren Legarda who belted out some Carpenter songs. I am not a big Loren fan but that night, I was awestruck with her presence and singing. To cap the night, everyone was caught by surprise by Edith who called an impromptu meeting that turned out to be a midnight serenade for birthday boy Bing Gonzales of the Mirror.

Jojo Terencio, the PR guy of Philip Morris, dropped a message on my Facebook account to say thanks for the piece that I wrote last week. For the nth time I say, no worries. Like Roy, I had a lot of fun in a losing bid to win.

The most memorable shot though should go to another Mirror columnist and flightmate Lito delos Reyes. Tolits’ short iron slipped his grip and went a-flying and I was lucky to duck just in time.

It happens. At least, I had luck even in unpredictable situations.

Civil Law: Legitime

2009-12-07T21:56:00.000-08:00

Legitime is that part of the testator’s estate which he cannot dispose of because the law has reserved it for his compulsory heirs [Art. 886, NCC].

Who are Compulsory Heirs

A. Primary Compulsory Heirs

1. Legitimate children and their legitimate descendants
2. Surviving spouse and their descendants
3. Illegitimate children and their descendants, whether legitimate or illegitimate.

B. Secondary compulsory Heirs

1. Legitimate parents and other legitimate ascendants [they inherit only in default of legitimate children and their descendants]
2. Illegitimate parents [other illegitimate ascendants not included]. they inherit only in default of legitimate and illegitimate children and their respective descendants.

Remember:

1. Purpose of legitime is to protect the surviving spouse and the children from the unjustified anger or thoughtlessness of the testator.
2. If there are no compulsory heirs, there can be no legitime.
3. The testator cannot deprive the compulsory heirs of their legitime except through valid disinheritance.
4. The testator cannot impose any conditions, substitutions, or burdens on the legitime except the condition that the estate will not be divided for a period not exceeding 20 years [Art. 1083]
5. Donationis inter vivos are to be reduced if found inofficious [ i.e. if they exceed the free portion].
6. Compulsory heirs are not compelled to accept their legitime.

Legitimes of Compulsory Heirs

Where
LC = legitimate child[ren]
IC = illegitimate chid[ren]
SS = surviving spouse
LP = legitimate parent[s]
IP = illegitimate parent[s]

* LC only = 1/2 of estate divided by number of children
* 1 LC = still 1/2
* 1LC + SS = LC 1/2; SS 1/4
* 2 or more LC + SS = LC 1/2; SS – same as 1LC
* 2 or more LC + SS + IC = LC 1/2 + SS same as 1LC, taken from free portion + IC 1/2 share of 1LC, taken from free portion
* LP + SS = LP 1/2 + SS 1/4
* SS + IC = SS 1/3; IC 1/3
* LP + SS + IC = IP 1/2 [even if only 1] + SS 1/8 + IC 1/4
* LP only = 1/2
* IC only = 1/2
* SS only = 1/2
* SS only, but marriage was in articulo mortis and testator died within 3 mos from marriage = 1/3
* SS only, but parties had lived together for more than 5 yrs before their marriage = 1/2
* LP + SS = Ip 1/4 + SS 1/4
* IP + IC = IP [none] + IC 1/2

Remember Also:

1. Legitimate children always get 1/2 of the estate as legitime. This is true even if there is only one child.
2. Legitimate parents as secondary compulsory heirs also always get 1/2 of the estate as their legitime, which is true even if only one legitmate parent survives.
3. There is no representation in the ascending line.
4. The legitime of the surviving spouse must be paid first out of the free portion; then give the illegitimate childdren their legitime. Ergo, if there are many illegitimate children, each of them might not get 1/2 of the share of a legitimate child.
5. There is also representation of illegitimate children.
6. Illegitimate children do not inherit abintestato from legitimate children and relatives of their illegitimate father and mother because of the barrier, and vice versa [Art. 992].
7. Brothers and sisters are not compulsory heirs, but they are intestate heirs. So, a testator can give his entire estate to strangers in his will, excluding his brothers and sisters.
8. To determine the legitime, get the value of the property minus debts, plus the value of donations subject to collation [Art. 908].
9. Donations to children shall be charged to their legitime; donations to strangers shall be charged to the free portion; if they are inofficious, they shall be reduced [Art. 909].
10. The legitimate of legitimate parents shall be divided between them equally. If one parent is dead, the other gets the whole legitime.
11. If the testator has no legitimate parents but is survived by ascendants of equal degree, the legitime shall be divided equally between paternal and maternal lines. If the ascendants are of different degrees, the ones nearest in degree get the entire legitime [Art. 889].

Rules of Criminal Procedure

2009-12-07T21:54:00.000-08:00

RULES OF CRIMINAL PROCEDURE

Criminal Jurisdiction of Inferior Courts

1. violations of city or municipal ordinances committed within their respective territorial jurisdiction; and
2. offenses punishable with imprisonment not exceeding 6 years irrespective of the
1. amount of fine
2. other imposable accessory or other penalties
3. civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof
4. offenses involving damage to property through criminal negligence

US v. Bernardo, 19 Phil 265 (1911) – repealed by Legados case; Inferior courts have no jurisdiction to over crimes that may require sentencing the accused to support the offspring from the crime, even if the period of imprisonment is within the jurisdiction of the inferior court.

Legados v. de Guzman, 170 SCRA 357 (1989) MTC has exclusive original jurisdiction over all offenses where the penalty imposable does not exceed 4 years and 2 months (now 6 years) regardless of other imposable penalties and civil liability arising from such offense. Hence, the inferior courts have jurisdiction for simple seduction, even if the accused might be required to support the offspring from the crime.

Jurisdiction of the Sandiganbayan

1. violations of the Anti-Graft and Corrupt Practices Act, Bribery under the RPC, forfeiture of properties unlawfully acquired by public officers, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
1. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade ‘27′ and higher, specifically including:

1) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads;

2) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads;

3) Officials of the diplomatic service occupying the position of consul and higher;

4) Philippine army and air force colonels, naval captains, and all officers of higher rank;

5) Officers of the PNP while occupying the position of provincial director and those holding the rank of senior superintended or higher;

6) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

7) Presidents, directors or trustees, or managers of GOCCs, state universities or educational institutions or foundations.

1. Members of Congress and officials thereof classified as Grade ‘27′ and higher
2. Members of the judiciary without prejudice to the provisions of the Constitution;
3. Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and
4. All other national and local officials classified as Grade ‘27′ and higher.
5. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.
6. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of RTCs whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided.

The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

[RULE 110] Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.

(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor, unless otherwise provided in their charters.

The institution of the criminal action shall interrupt the period of prescription of the offense charged unless otherwise provided in special laws

General Rule: Criminal prosecution may not be restrained or stayed by injunction.

Exceptions:

1. to afford adequate protection to the constitutional rights of the accused
2. when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
3. when there is a pre-judicial question which is sub judice
4. when the acts of the officer are without or in excess of authority
5. where the prosecution is under an invalid law, ordinance or regulation
6. when double jeopardy is clearly apparent
7. where the court has no jurisdiction over the offense
8. where it is a case of persecution rather than prosecution
9. where the charges are manifestly false and motivated by the lust for vengeance
10. when there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied
11. to prevent the threatened unlawful arrest of petitioners

Complaint

Information
Sworn statement Need not be sworn
Signed by the offended party, peace officer, or public officer charged with the enforcement of the law violated Signed by the prosecutor [Abela v. Golez, 131 SCRA 12]

When public prosecutor participation is not enough (private offenses)

1. adultery
2. concubinage
3. seduction
4. abduction
5. acts of lasciviousness
6. defamation which consists in the imputation of private offenses

Note that rape is no longer a private offense. It may now be prosecuted even without the initiation of the victim or her relatives.

Special rules for prosecution of private offenses

1. adultery and concubinage
1. complaint filed by the offended spouse (can not be filed by anyone else, even if the offended spouse died)
2. offended party has not consented to the offense or pardoned the offenders.
3. including all living guilty parties
4. seduction, abduction, and acts of lasciviousness
1. complaint filed by

1) the offended party independently, unless she is incompetent or incapable

2) If the offended party is a minor and fails to file the complaint, successively and exclusively

a) her parents

b) grandparents, or

c) guardian

1. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf.
2. the offender has not been expressly pardoned by any of them
3. defamation which consists in the imputation of private offenses – upon complaint filed by the offended party

Note in private offenses, the State can possibly file a case independent of the offended parties only in seduction, abduction and acts of lasciviousness. In adultery, concubinage, and defamation, the State can not file a case without a complaint by the offended party.

Designation of the offense

1. Either
1. designation of the offense given by the statute, or
2. if there is no designation, reference to the section or subsection of the statute punishing it
3. aver the acts or omissions constituting the offense
4. specify its qualifying and aggravating circumstances.

Cause of the accusation – The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances

1. must be stated in ordinary and concise language
2. not necessarily in the language used in the statute
3. in terms sufficient
1. to enable a person of common understanding to know

1) what offense is being charged

2) its qualifying and aggravating circumstances

1. for the court to pronounce judgment.

GR: Allegation that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court is sufficient.

Exceptions: the particular place where it was committed constitutes

1. an essential element of the offense charged or
2. is necessary for its identification

People v. Mabuyo, 63 SCRA 532 (1975) Unless place of commission is an essential element of the crime, the accused may be convicted of a crime committed in a place other than the place alleged in the information, as long as such other place is still within the jurisdiction of the court.

GR: Precise date the offense was committed not necessary.

Exception: When it is a material ingredient of the offense.

Rocaberte v. People, 193 SCRA 152 (1991)

Facts: Rocaberte was charged with theft allegedly committed in a period of 7 years (1977-1983). He moves to quash on the ground that the information violated his right to be informed.

Held: A variance of several years in the allegations of the complaint is fatally defective and violative of the constitutional right to be informed. However, the remedy is to move for a bill of particulars, not a motion to quash.

GR: The person against whom or against whose property the offense was committed must be identified by

1. his name and surname, or
2. any appellation or nickname by which such person has been or is known, or
3. if the name of the offended party is unknown
1. a fictitious name; if true name subsequently ascertained, the true name shall be inserted in the complaint or information and record
2. In offenses against property, the property must be described with such particularity as to properly identify the offense.
3. averment that offended party is a juridical person or that it is organized in accordance with law is not necessary

Amendments

1. before accused enters his plea
1. as to anything which does not downgrade the charge or exclude any accused – without leave of court
2. downgrade the charge or excludes an accused –

1) upon motion by the prosecutor

2) with notice to the offended party

3) with leave of court

a) which shall state its reasons

b) served on all parties, especially the offended party

1. after arraignment but before judgment
1. only as to form – with leave of court and when it can be done without causing prejudice to the rights of the accused.
2. wrong offense charged

1) the court shall dismiss the original case upon the filing of a new one charging the proper offense

2) provided the accused would not be placed in double jeopardy

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

In criminal procedure, venue is jurisdictional. In civil procedure, venue is procedural and may be waived.

Venue

1. the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred.
2. if committed on board a vessel in the course of its voyage – the court of
1. the first port of entry or
2. any municipality or territory where the vessel passed during such voyage
3. if committed in any other vehicle in the course of its trip – the court of any municipality or territory where said vehicle passed during its trip, including the place of its departure and arrival.
4. Crimes committed outside of the Philippines but punishable under Article 2 of the RPC shall be cognizable by the court where the criminal action is first filed.

RULE 111 – PROSECUTION OF CIVIL ACTION

Note that the provision requiring reservation of independent civil actions no longer exists.

GR: Civil action deemed instituted with the criminal action.

Exceptions: the offended party

1. waives the civil action
2. reserves his right to institute it separately
1. before the prosecution starts presenting its evidence and
2. under circumstances affording the offended party a reasonable opportunity to make such reservation
3. institutes the civil action prior to the criminal action

Exception to the Exceptions – No reservation to file a separate civil action for

1. violations of BP 22 shall be allowed. The criminal action for violation of BP 22 shall be deemed to include the corresponding civil action.
2. cases before the Sandiganbayan (Sec. 4, RA 8249)

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action.

Where the civil action has been filed separately and trial thereof has not yet commenced

1. it may be consolidated with the criminal action upon application with the court trying the criminal case
2. If the application is granted, the trial of both actions shall as consolidated the civil and criminal actions.

Filing fees over

1. moral, nominal, temperate or exemplary damages
1. specified in the complaint or information – paid upon filing
2. not specified in the complaint or information – constitute a first lien on the judgment awarding such damages.
3. actual damages – none, unless otherwise provided in these Rules, e.g. amount of the check in violations of BP 22

Effect of criminal action on separate civil action

1. If criminal action has been commenced earlier – separate civil action cannot be instituted until final judgment has been entered in the criminal action.
2. If the criminal action is filed after the separate civil action has already been instituted –
1. civil action suspended, in whatever stage it may be found before judgment on the merits, until final judgment (de Leon: not after judgment is entered?) is rendered in the criminal action.
2. civil action may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action

1) evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action

2) without prejudice to the right of

a) the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and

b) [de Leon: why in the world would the prosecution cross-examine the witnesses of the offended party? Aren’t they on the same side? I think this is a typographical error.]

c) the parties to present additional evidence.

3) the consolidated criminal and civil actions shall be tried and decided jointly.

1. During the pendency of the criminal action, the running of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.
2. GR: The extinction of the penal action does not carry with it extinction of the civil action.
3. Exception: there is a finding in a final judgment in the criminal action that the act or omission from which civil liability may arise did not exist

PRELIMINARY INVESTIGATION (RULE 12)

Preliminary investigation – an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

GR: Preliminary investigation required

Exceptions: When preliminary investigation not required

1. Penalty is at most 4 years, 2 months

when accused was lawfully arrested without a warrant (Sec. 7, Rule 112)

Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure

1. If filed with the prosecutor
1. the procedure outlined in section 3(a) of Rule 112 shall be observed
2. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing.
3. If filed with the MTC, for an offense covered by this section
1. the procedure in section 3(a) of Rule 112 shall be observed
2. If within 10 days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers

1) he shall dismiss the same, or

2) require the submission of additional evidence, within 10 days from notice, to determine further the existence of probable cause.

a) If the judge still finds no probable cause despite the additional evidence, he shall, within 10 days from its submission or expiration of the said period, dismiss the case.

b) When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial.

c) If the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest

ARREST (RULE 112)

An arrest is made by

1. an actual restraint of a person to be arrested, or
2. by his submission to the custody of the person making the arrest.

Procedure in execution of arrest warrants

1. The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within 10 days from its receipt.
2. Within 10 days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant.
1. If warrant was executed

1) the officer executing the warrant should arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.

2) No violence or unnecessary force shall be used in making an arrest.

3) The person arrested shall not be subject to a greater restraint than is necessary for his detention.

4) arrest may be made on any day and at any time of the day or night.

1. If there was failure to execute the warrant – the officer to whom it was assigned for execution shall state the reasons therefore in his report

Instances of warrantless arrests – a peace officer or a private person may, without a warrant, arrest a person

1. When, in his presence, the person to be arrested
1. has committed
2. is actually committing, or
3. is attempting to commit an offense;
4. When
1. an offense has just been committed and
2. he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it
5. When the person to be arrested is a prisoner who has escaped
1. from a penal establishment or place where he is

1) serving final judgment or

2) temporarily confined while his case is pending

1. while being transferred from one confinement to another.
2. who escapes or rescued after being lawfully arrested (Rule 113, Sec. 13);
3. released on bail if he attempts to depart from the Philippines without leave of court

BAIL (RULE 114)

Bail – the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court

Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance

All kinds of bail are subject to the following conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;

(b) The accused shall appear before the proper courts whenever required by the court or these Rules;

(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final judgment.

The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

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

The Constitutional right to bail ceases upon initial conviction. Pending appeal, the right to bail is merely statutory. motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

Bail, when discretionary. – Upon conviction 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 acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment 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 circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or under conditional pardon;

(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 during the pendency of the appeal.

The appellate court may, motu proprio or on

RIGHTS OF THE ACCUSED (RULE 115)

Rights of accused at the trial

1. to be presumed innocent until the contrary is proved beyond reasonable doubt.
2. to be informed of the nature and cause of the accusation against him.
3. to be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment.
1. The accused may waive his presence at the trial, unless his presence is specifically ordered by the court for purposes of identification.
2. The absence of the accused without any justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat.
3. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained.
4. Upon motion, to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
5. to testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him;
6. to be exempt from being compelled to be a witness against himself.
7. to confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence
1. the testimony of a witness who is

1) deceased,

2) out of or cannot with due diligence be found in the Philippines,

3) unavailable, or

4) otherwise unable to testify,

1. given in another case or proceeding, judicial or administrative

1) involving the same parties and subject matter

2) the adverse party having the opportunity to cross-examine him.

1. to have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
2. to have speedy, impartial and public trial.
3. to appeal in all cases allowed and in the manner prescribed by law

ARRAINGMENT AND PLES (RULE 116)

When arraignment conducted

1. if the accused is under preventive detention
1. his case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint
2. arraigned within 10 days from the date of the raffle
3. pre-trial conference shall be held within 10 days after arraignment.
4. if the accused is not under preventive detention
1. the arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided by special law or SC circular
2. the time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

Procedure for arraignment

1. Before arraignment
1. the court shall inform the accused of his right to counsel and ask him if he desires to have one. The court must assign a counsel de oficio to defend him unless the accused (Sec. 6)

1) is allowed to defend himself in person or

2) has employed counsel of his choice

1. Counsel de oficio shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment. (Sec. 8)
2. accused may move for a bill of particulars which shall specify

1) the alleged defects of the complaint or information and

2) the details desired. (Sec. 9)

1. accused may move for production or inspection of material evidence in possession of prosecution (Sec. 10)
2. accused may move to suspend the arraignment (Sec. 11)
3. made in open court by the judge or clerk of the court where the complaint or information was filed or assigned for trial
1. furnishing the accused with a copy of the complaint or information
2. reading the same in the language or dialect known to him, and
3. asking him whether he pleads guilty or not guilty
4. accused must be present at the arraignment and must personally enter his plea.
5. When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him.
6. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings.
7. The private offended party shall be required to appear at the arraignment for purposes of plea-bargaining, determination of civil liability, and other matters requiring his presence.
8. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone.
9. The prosecution may call at the trial witnesses other than those named in the complaint or information.
10. When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

Requisites for a plea of guilty to a lesser offense

1. the lesser offense is necessarily included in the offense charged
2. with the consent of the
1. the prosecutor and
2. offended party, unless fails to appear at the arraignment
3. if after arraignment but before trial – withdrawal of his plea of not guilty; no amendment of the complaint or information is necessary (Escolin: under the old Rules, accused may not change his plea after arraignment)
4. if guilty plea is to a capital offense – the court shall
1. conduct a searching inquiry into

1) the voluntariness and

2) full comprehension of the consequences of his plea

1. shall require the prosecution to prove his guilt and the precise degree of culpability
2. allow the accused to present evidence in his behalf.

When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.

Requisites for withdrawal of guilty plea

1. guilty plea was improvident
2. before the judgment of conviction becomes final
3. substituted by a plea of not guilty

When arraignment may be suspended

1. accused appears to be suffering from an unsound mental condition which effectively renders him unable
1. to fully understand the charge against him and
2. to plead intelligently thereto
3. there exists a prejudicial question; and
4. a petition for review of the resolution of the prosecutor is pending at either the DoJ, or the OP; provided, that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office

Note that the new rules now require the civil case be filed before the criminal case in order for a prejudicial question to exist.

MOTION TO QUASH (RULE 117)

Grounds for a motion to quash an information

1. facts charged do not constitute an offense;
2. court trying the case has no jurisdiction over the offense charged;
3. court trying the case has no jurisdiction over the person of the accused;
4. officer who filed the information had no authority to do so;
5. it does not conform substantially to the prescribed form;
6. more than one offense is charged, except when a single punishment for various offenses is prescribed by law;
7. criminal action or liability has been extinguished;
1. By the death of the convict, as to the personal penalties; as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman in

1) Seduction

2) abduction or

3) acts of lasciviousness (Art. 344 RPC)

1. it contains averments which, if true, would constitute a legal excuse or justification; and
2. the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

Court may order amendment of information if the motion to quash is based on

1. an alleged defect of the complaint or information which can be cured by amendment
2. the ground that the facts charged do not constitute an offense

The motion to quash shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment.

GR: If the motion to quash is sustained, the court may order that another complaint or information be filed

Exception: The ground for motion to quash is

1. criminal action or liability has been extinguished;
2. the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

If the court quashes the information

1. the accused, if in custody, shall not be discharged
1. if the court orders another complaint or information be filed, and accused has not been admitted to bail
2. If no order is made, but the accused is also in custody for another charge.
3. accused shall be discharged if
1. the court orders another complaint or information be filed, but

1) the accused has been admitted to bail

2) no new information is filed within

a) the time specified in the order or

b) such further time as the court may allow for good cause

1. If no order is made, and the accused is not in custody for another charge

Requisites for double jeopardy

1. an accused has been
1. convicted or
2. acquitted, or
3. without his express consent, the case against him was

1) dismissed or

2) otherwise terminated

1. by a court of competent jurisdiction
2. upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and
3. after the accused had pleaded to the charge
4. subsequent prosecution for
1. the offense charged, or
2. any attempt to commit the same or frustration thereof, or
3. any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Exceptions to double jeopardy: The conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information if:

1. the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
2. the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or
3. the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party, except when the offended party fails to appear at the arraignment, in which case the consent of the prosecutor alone is enough [Sec 1(f) of Rule 116]

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

Exceptions:

1. the facts charged do not constitute an offense;
2. the court trying the case has no jurisdiction over the offense charged;
3. the criminal action or liability has been extinguished;
4. the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent

de Leon: Extinguishment of criminal liability or action and double jeopardy are not waived by failure to raise in a motion to quash, and are also bars to refiling of the information or complaint. Though the ground of failure to charge an offense or no jurisdiction over subject matter may be raised at any time, it is not a bar to refiling of the information.

PRE-TRIAL (RULE 118)

Civil Pre-trial

Criminal Pre-trial
Presence of defendant and counsel mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned
Amicable settlement is discussed Amicable settlement is not discussed, unless the criminal case is covered by summary procedure
Agreement need not be in writing; included in pre-trial order Agreements or admissions must be written and signed by the accused and counsel to be admissible against him.
Can have proffer of evidence No proffer of evidence; proffer of evidence only after trial

Pre-trial is now mandatory in all criminal cases

1. after arraignment, the court shall order a pre-trial conference
1. within 30 days from the date the court acquires jurisdiction over the person of the accused
2. unless a shorter period is provided for in special laws or circulars of the Supreme Court
3. matters considered in pre-trial
1. plea bargaining;
2. stipulation of facts;
3. marking for identification of evidence of the parties;
4. waiver of objections to admissibility of evidence;
5. modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
6. such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

TRIAL (RULE 119)

After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order.

Periods of delay excluded in computing the time within which trial must commence

1. resulting from other proceedings concerning the accused, e.g.
1. examination of the physical and mental condition of the accused;
2. proceedings with respect to other criminal charges against the accused;
3. extraordinary remedies against interlocutory orders;
4. pre-trial proceedings; provided, that the delay does not exceed 30 days;
5. orders of inhibition
6. proceedings relating to change of venue of cases or transfer from other courts;
7. finding of existence of a prejudicial question; and
8. reasonably attributable to any period, not to exceed 30 days, during which any proceeding concerning the accused is actually under advisement.
9. resulting from an essential witness’
1. absence

1) his whereabouts are unknown or

2) his whereabouts cannot be determined by due diligence

1. unavailability – his whereabouts are known but his presence for trial cannot be obtained by due diligence.
2. resulting from the mental incompetence or physical inability of the accused to stand trial.
3. from the date the charge was dismissed upon motion of the prosecution, to the date the time limitation would commence to run as to a subsequent charge had there been no previous charge
4. A reasonable period of delay when the accused is joined for trial with a co-accused
1. over whom the court has not acquired jurisdiction, or
2. as to whom the time for trial has not run and no motion for separate trial has been granted.
3. resulting from a continuance granted by any court on the ground that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial
1. motu proprio, or
2. on motion of

1) either the accused or his counsel, or

2) the prosecution

Trial schedule

1. after consultation with the prosecutor and defense counsel, the court shall set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial.
2. In no case shall the entire trial period exceed 180 days from the first day of trial, except as otherwise authorized by the Supreme Court.
3. Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.
4. The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

If the accused is not brought to trial within the time limit

1. the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial
2. accused shall have the burden of proving the motion
3. the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time
4. The dismissal shall be subject to the rules on double jeopardy.

Failure of the accused to move for dismissal prior to trial shall constitute a waiver of such ground to dismiss.

Order of trial (When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified)

1. prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.
2. accused may present evidence to prove his defense and damages, if any, arising, from the issuance of a provisional remedy in the case.
3. prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.
4. Upon admission of evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda.

Requisites for state witness

1. absolute necessity for the testimony
2. no other direct evidence available
3. the testimony can be substantially corroborated in its material points;
4. the said accused does not appear to be the most guilty; and
5. the said accused has not at any time been convicted of any offense involving moral turpitude.

Demurrer to Evidence in Criminal Cases

Demurrer to Evidence in Civil Cases
ground is: Insufficient evidence Ground is: Facts and law shown by plaintiff no right to relief
On motion or motu proprio On motion
When motion is filed without leave of court – waiver of right to present evidence; If with leave of court, the accused may adduce evidence in his defense If denied – he has right to present evidence, no prior leave of court required

If granted but reversed on appeal – it is a waiver of the right to present evidence

JUDGMENT (RULE 120)

Judgment – the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any.

Form of judgment

1. written in the official language
2. personally and directly prepared by the judge
3. signed by him
4. contain clearly and distinctly a statement of the facts and the law upon which it is based

Contents of the judgment

1. If of conviction
1. the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission
2. the participation of the accused in the offense, whether as principal, accomplice, or accessory
3. the penalty imposed upon the accused; and
4. the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.
5. If of acquittal
1. whether the evidence of the prosecution

1) absolutely failed to prove the guilt of the accused or

2) merely failed to prove his guilt beyond reasonable doubt

1. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.

An offense is said to necessarily include another if the essential elements or ingredients of the former constitute the latter.

An offense is said to be necessarily included in another if the essential elements or ingredients of the former constitute or form part of those constituting the latter.

NEW TRIAL OR RECONSIDERATION (RULE 121)

MNT or MfR in Criminal Cases

MNT or MfR in Civil Cases
Either on motion of accused, or the court motu proprio with consent of the accused Must be upon motion of a party, can’t be motu proprio
Grounds for MNT – errors of law or irregularities committed during the trial, or newly discovered evidence Grounds for MNT – FAME, or newly discovered evidence
Ground for MfR – error of law or fact Grounds for MfR – Excessive damages, insufficient evidence, or decision is contrary to law
Filed any time before judgment of conviction becomes final Filed within the period for taking an appeal
Should include all the grounds then available and those not so included shall be deemed waived.
When granted, the original judgment is always set aside or vacated and a new judgment rendered There may be partial grant
2nd MfR not allowed; 2nd MNT may be allowed on evidence not available before

APPEAL (RULE 122)

The only instances when an appeal to the SC is by notice of appeal

1. the penalty imposed is reclusion perpetua, or life imprisonment, or
2. where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed

Notwithstanding perfection of the appeal, the RTC and the inferior courts may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court, in which case the judgment shall become final.

The RTC may also, in its discretion, allow the appellant from the judgment of an inferior court to withdraw his appeal, provided a motion to that effect is filed before rendition of the judgment in the case on appeal, in which case the judgment of the court of origin shall become final and the case shall be remanded to the latter court for execution of the judgment.

SEARCH AND SEIZURE (RULE 126)

A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Court where application for search warrant shall be filed

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

Requisites for issuing search warrant – A search warrant shall not issue except upon

1. probable cause
2. in connection with one specific offense
3. determined personally by the judge
4. after examination under oath or affirmation of the complainant and the witness he may produce, and
5. particularly describing the place to be searched and the things to be seized

Requisites for arrest warrant issued by a RTC judge

1. Within 10 days from the filing of the complaint or information
2. the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.
3. If he finds probable cause, he shall issue a warrant of arrest
4. In case of doubt on the existence of probable cause
1. the judge may order the prosecutor to present additional evidence within 5 days from notice and
2. the issue must be resolved by the court within 30 days from the filing of the complaint of information.

A search warrant shall be valid for 10 days from its date. Thereafter, it shall be void.

Special Civil Actions

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SPECIAL CIVIL ACTIONS (RULES 62-71)

Interpleader (Rule 62) – A person who has property in his possession or an obligation to render, wholly or partially without claiming any right therein, or an interest in which in whole or in part is not disputed by the claimants, comes to court and asks that the persons who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

Declaratory Relief and Similar Remedies (Rule 63) – An action brought for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership.

To register his title to real property bought with a right of redemption, the buyer must file an action for declaratory relief. cf Art. 1607 and 1616 NCC

Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. (n)

Art. 1616. The vendor cannot avail himself of the right of repurchase without returning to the vendee the price of the sale, and in addition:

(1) The expenses of the contract, and any other legitimate payments made by reason of the sale;

(2) The necessary and useful expenses made on the thing sold.

Grounds for the court to refuse to exercise declaratory relief

1. a decision would not terminate the uncertainty or controversy which gave rise to the action;
2. the declaration or construction is not necessary and proper under the circumstances.

Certiorari, Prohibition and Mandamus (Rule 65)

without jurisdiction – no jurisdiction from the beginning; absolute want of jurisdiction

in excess of jurisdiction – transcended the limits of authority without any statutory authority

grave abuse of discretion – exercised its power in an arbitrary or despotic manner by reason of passion or personal hostilities; so patent and gross as to amount to an evasion or virtual refusal to perform the duty enjoined or to act in contemplation of law

Purposes of a writ of

Certiorari – to correct errors of jurisdiction; refers to only to judicial or quasi-judicial functions

Prohibition – to prevent respondent from usurping a jurisdiction which it is not legally vested; refers to judicial, quasi-judicial, or ministerial functions

Mandamus – to require or compel the respondent to perform a particular duty, which duty results from the official station of the respondent, or from operation of law; refers only to ministerial duties

Certiorari

Prohibition

Mandamus
Directed against a person exercising to judicial or quasi-judicial functions Directed against a person exercising judicial or quasi-judicial functions, or ministerial functions Directed against a person exercising ministerial duties
Object is to correct Object is to prevent Object is to compel
Purpose is to annul or modify the proceedings Purpose is to stop the proceedings Purpose is to compel performance of the act required and to collect damages
Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion Person or entity must have acted without or in excess of jurisdiction, or with grave abuse of discretion Person must have neglected a ministerial duty or excluded another from a right or office

Prohibition

Injunction
Always the main action May be the main action or just a provisional remedy
Directed against a court, a tribunal exercising judicial or quasi-judicial functions Directed against a party
Ground must be the court acted without or in excess of jurisdiction Does not involve a question of jurisdiction

Prohibition

Mandamus
To prevent an act by a respondent To compen an act desired
May be directed against entities exercising judicial or quasi-judicial, or ministerial functions May be directed against judicial and non-judicial entities
Extends to discretionary functions Extends only to ministerial functions

Mandamus

Quo warranto
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or franchise
Respondent, without claiming any right to the office, excludes the petitioner Respondent usurps the office

Certiorari as a Mode of Appeal (Rule 45)

Certiorari as a Special Civil Action (Rule 65)

only questions of law may be raised

question of whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion

involves review of judgments, awards, or final orders

may be directed against an interlocutory order of the court or where not appeal or plain or speedy remedy available in the ordinary course of law

filed within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s MNT or MfR; the SC may for justifiable reasons grant an extension of 30 days

filed within 60 days from notice of the judgment, order or resolution

stays execution of the judgment, award or order appealed from
Execution is not stayed unless a TRO or a writ of PI has been issued

lower courts or judges thereof are not impleaded

the lower court or judge is impleaded as a public respondent

Prior MfR not required

MfR is a condition precedent, subject to exceptions

appellate jurisdiction is invoked

original jurisdiction is invoked; SC exercises its power of control and supervision over proceedings of the lower court

de Leon: Exension of 30 days may be granted for justifiable reasons

de Leon: Extension of 15 days may be granted for compelling reasons

de Leon: Filed with only the SC
de Leon: May be filed in all courts of general jurisdiction
de Leon: SC may deny the decision motu propio

Grounds for the court to motu propio dismiss the special civil action for CPM

1. patently without merit
2. prosecuted manifestly for delay, or
3. the questions raised therein are too unsubstantial to require consideration.

Quo Warranto (Rule 66)

Quo Warranto – a demand made by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the State which according to the Constitution or the laws of the land, they can not legally exercise by virtue of a grant or authority from the State

Quo Warranto

Mandamus
Remedy to try an office or franchise and to oust the holder from enjoyment To clear legal duties, not disputed titles
There is usurpation or intrusion into an office by the respondent Respondent need not claim right to an office but excludes petitioner therefrom

Quo Warranto

Election Contest
Disputes relates to the eligibility of the candidate elect Dispute refers to irregularities in the conduct of election
Respondent ousted but petitioner does not always assume office Successful protestant wil assume office if he had plurality of valid votes

Quo Warranto in Elective Offices

Quo Warranto in Appointive Offices
Issue is eligibility of the respondent Issue is the validity of the appointment
Petitioner does not seek replace respondent Petitioner seeks to replace repondent

Forcible Entry and Unlawful Detainer (Rule 70)

General procedure in ejectment cases

1. Verified complaint filed with the MTC within 1 year from unlawful deprivation or withholding of possession
2. Answer within 10 days from receipt of summons
3. Preliminary conference within 30 days from answer
4. Court issues preliminary conference order with 5 days.
5. Parties submit affidavits of witnesses, other evidences and position papers within 10 days from receipt of preliminary conference order
6. Court renders judgment within 30 days from receipt of affidavits and position papers.

Prohibited pleadings and motions

1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12;

2. Motion for a bill of particulars;

3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

4. Petition for relief from judgment;

5. Motion for extension of time to file pleadings, affidavits or any other paper;

6. Memoranda;

7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;

8. Motion to declare the defendant in default;

9. Dilatory motions for postponement;

10. Reply;

11. Third-party complaints;

12. Interventions

Rules of Evidence

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RULES OF EVIDENCE
Evidence – the means, sanctioned by the Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
Relevant evidence – evidence which has a relation to the fact in issue as to induce belief in its existence or non-existence; evidence which tends in any reasonable degree to establish the probability or improbability of the fact in issue.
Material evidence – evidence which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings; evidence of such quality of substantial importance to the particular issue, apart from its relevance
The terms “relevant” and “material” are practically the same. They are used interchangeably by the SC.
Competent evidence – evidence which is not excluded by the law or by the Rules of Court
Direct evidence – evidence which proves a fact in dispute without the aid of any inference or presumption
Circumstantial evidence – proof of facts from which, taken collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence
Expert evidence – testimony of a witness regarding a question of science, art or trade, when he is skilled therein
Prima facie evidence – evidence which suffices for the proof of a particular fact until contradicted and overcome by other evidence
Conclusive evidence – evidence which is incontrovertible and which the law does not allow to be contradicted
Cumulative evidence – evidence of the same kind and character as that already given and tends to prove the same proposition
Corroborative evidence – evidence of a different kind and character tending to prove the same point
Best evidence – evidence which affords the greatest certainty of the fact in question
Secondary evidence – evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists
Factum probans – the evidentiary fact by which the factum probandum is to be established; material evidencing the proposition, existent, and offered for the consideration of the tribunal
Factum probandum – the ultimate fact sought to be established; proposition to be established, hypothetical, and that which one party affirms and the other denies

Factum probandum Factum Probans
Proposition to be established Material evidencing the proposition
Conceived of as hypothetical; that which one party affirms and the other denies Conceived of for practical purposes as existent, and is offered as such for the consideration of the court

Collateral facts – matters other than facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue
Real evidence – evidence furnished by the things themselves, or view or inspection as distinguished from a description by them of a witness; that which is addressed directly to the senses of the court without the intervention of a witness
Rebuttal evidence – evidence which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party
Positive evidence – when a witness affirms that a fact did or did not occur
Negative evidence – when a witness states that he did not see or know the occurrence of a fact
Admissibility of evidence Weight of evidence
Pertains to the ability of the evidence to be allowed and accepted subject to its relevancy and competence Pertains to the effect of evidence admitted
Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency

Proof Evidence
Effect and result of evidence Medium of proof
End Result Means to the end
Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

RULE 129 – WHAT NEED NOT BE PROVED
Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.
Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.
When court takes judicial notice
1. During trial, on any matter – allow the parties to be heard thereon
2. After trial, and before judgment or on appeal – any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case
Hearing is necessary when
1. During the trial, the court
1. motu propio, on request of a party
2. announces its intention to take judicial notice of any matter
3. After trial
1. before judgment or on appeal
2. motu propio, on request of a party
3. takes judicial notice of any matter, and
4. if such matter is decisive of a material issue in the case
Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as there is a hearing.
Instances of Judicial admissions
1. the genuineness and due execution of an actionable document copied or attached to a pleading, when the other party fails to specifically deny under oath (Rule 8 §8)
2. material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 §11)
3. admissions in superseded pleadings, when offered in evidence (Rule 10 §8)
4. act, declaration, or omission of a party as to a relevant fact (Rule 130 §26)
5. implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-offenses and those allowed by law to be compromised (Rule 130 §27)
6. admission by silence (Rule 130 §32)

RULES OF ADMISSIBILITY (RULE 130)
Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.
Best Evidence Rule – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself
Exceptions: When the original
1. has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
2. is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;
3. consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
4. the original is a public record in the custody of a public officer or is recorded in a public office
Original documents
1. one the contents of which are the subject of inquiry.
2. When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.
3. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals
Requisites for admission of secondary evidence, according to grounds
1. the original has been lost or destroyed, or cannot be produced in court
1. prove execution or existence
2. prove cause of unavailability without bad faith of the offeror
3. proof of contents in the following order
1) copy
2) recital of its contents in
a) some authentic document, or
b) testimony of witnesses
1. the original is in the custody or under the control of the adverse party
1. adverse party had reasonable notice to produce the original (Subpoena duces tecum)
2. proof of the original’s existence
3. adverse party fails to produce the original
4. proof of contents in the following order
1) copy
2) recital of its contents in
a) some authentic document, or
b) testimony of witnesses
1. the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
2. the original is a public record in the custody of a public officer or is recorded in a public office – contents may be proved by a certified copy issued by the public officer in custody thereof
1. Rule 132 §25: What attestation of copy must state
1) the copy is a correct copy of the original, or a specific part thereof
2) under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court
1. Rule 132 §27: Public record of a private document – may be proved by
1) the original record, or
2) by a copy thereof
a) attested by the legal custodian of the record
b) with an appropriate certificate that such officer has the custody

Parol Evidence Rule: When the terms of an, agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.
Exceptions: a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading
1. An intrinsic ambiguity, mistake or imperfection in the written agreement
2. failure of the written agreement to express the true intent and agreement of the parties
3. validity of the written agreement; or
4. The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement
If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the pleadings.
The rule applies only to the terms of an agreement. If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement of facts), then the PER does not apply, such evidence is admissible.
PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who is a stranger to the agreement.
Requisites for mistake as exception to PER
1. mutual between the parties
2. of fact, not of law
3. alleged and put in issue in the pleadings
4. proved by clear and convincing, not merely preponderance of, evidence

Parol Evidence Rule Best Evidence Rule
No issue as to the contents of a writing Issue is contents of a writing
Parol evidence is offered Secondary evidence is offered
Presupposes that original is in court Applies when the original is not available
Effect is can not add, subtract, or explain the contents Effect is can not present any evidence on the contents other than the original
Invoked only if the controversy is between parties to the agreement Invoked by anybody, whether a party to the instrument or not
Applies only to agreements and wills Applies to all kinds of writing
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.
For a mentally defective person to be a witness, he must be mentally capable at the time of production, even if he was not so at the time of perception. A child must be mentally mature both at the time of perception and at the time of production. With regards to the subject matter of the testimony, we must make a distinction between absolute disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised upon the calling of the disqualified witness. Objections based on relative disqualifications may be raised when it becomes apparent that the subject matter of the testimony covers inadmissible matters.
Marital Disqualification (Sec. 22) Marital Communications (Sec. 24)
Covers all matters regardless of source Covers only those communicated by one spouse to another
Applies during the marriage Applies during and after the marriage
A spouse must be a litigant A spouse need not be a litigant
Invoked when a spouse is called to testify Invoked when the testimony appears to cover privileged matters

Requisites for dead man’s statute (Sec. 23)
1. the witness sought to be disqualified is the plaintiff
2. Executor, administrator or representative of a deceased person, or the person of unsound mind is the defendant
3. upon claim or demand against the estate of such deceased person or against such person of unsound mind
4. as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.
5. [no counterclaim is filed]
Privileged Communication (Sec. 24)
The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants;
An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;
A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;
A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;
A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.
In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases:
1. quasi-offenses (criminal negligence)
2. cases allowed by law to be compromised (e.g. BIR can compromise tax cases)
3. plea of guilty later withdrawn
4. unaccepted offer to plead guilty to a lesser offense
5. offer to pay or payment of expenses occasioned by an injury
6. [the offer is made only to avoid the consequences of litigation]
7.
Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases.
Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil cases. Though the 3rd paragraph of §27 excludes in civil cases offers to pay only for expenses occasioned by an injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses occasioned by an injury is in the nature of an offer to compromise which is undoubtedly admissible in civil cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible.
Requisites for admission by silence
1. The act or declaration is made in the presence and within the hearing or observation of a party
2. The party does or says nothing
3. The act or declaration naturally calls for action or comment if not true
4. Such action or comment is proper and possible on the part of the party.
Requisites for the admissibility of a confession
1. the confession must be voluntary;
2. the confession must be made with the assistance of a competent and independent counsel;
3. the confession must be express;
4.. the confession must be in writing.
Testimonial Knowledge (Hearsay Rule – Sec. 36)
A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.
Exceptions to the Hearsay Rule (Secs. 37-47)
1. Dying declaration – the declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.
2. Declaration against interest – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.
3. Act or declaration against pedigree – The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.
4. Family reputation or tradition regarding pedigree – The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.
5. Common reputation – Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation.
6. Parts of the res gestae – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.
7. Entries in the course of business – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.
8. Entries in official records – Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.
9. Commercial lists and the like – Evidence of statements of matters of interest, to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.
10. Learned treatises – A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.
11. Testimony or deposition at a former proceeding – The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.
GR: The opinion of a witness is not admissible. (Sec. 48)
Exceptions: Admissible opinion evidence
1. a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.
2. the identity of a person about whom he has adequate knowledge;
3. a handwriting with which he has sufficient familiarity
4. the mental sanity of a person with whom he is sufficiently acquainted.
5. his impressions of the emotion, behavior, condition or the appearance of a person
GR: Character evidence not generally admissible (Sec. 51)
Exceptions
1. In Criminal Cases:
1. accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.
2. In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent it to the moral trait involved in the offense charged.
3. moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.
4. In Civil Cases – only when pertinent to the issue of character involved in the case.
5. good character of an impeached witness

BURDEN OF PROOF (RULE 131)
Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law
Instances of conclusive presumptions
1. a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:
2. The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
Statutory instances of estoppel
1. non-owner transferor who later acquires title passes ownership to the transferee by operation of law (Art. 1434 NCC)
2. agent who alienates can not claim title against the transferee (Art. 1435 NCC)
3. a lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor or bailor. (Art. 1436 NCC)
4. in a contract between 3rd persons concerning immovable property, one of them is misled by a person with respect to the ownership or real right over the real estate, the latter is precluded from asserting his legal title or interest therein, provided all these requisites are present:
1. fraudulent representation or wrongful concealment of facts known to the party estopped;
2. party precluded must intend that the other should act upon the facts as misrepresented;
3. party misled must have been unaware of the true facts; and
4. party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC)
5. One who has allowed another to assume apparent ownership of personal property for the purpose of making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set up his own title to defeat the pledge of the property, made by the other to a pledgee who received the same in good faith and for value. (Art. 1438 NCC)
Disputable presumptions – The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later ones is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;
(1) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature and the ordinary habits of life;
(z) That persons acting as copartners have entered into a contract of copartnership;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rides shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage.

(ee) That a thing once proved to exist continues as long as is usual with things of that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published;
(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

(kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time.

PRESENTATION OF EVIDENCE (RULE 132)
The order in which an individual witness may be examined is as follows:
1. Direct examination by the proponent – the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue.
2. Cross-examination by the opponent – Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.
3. Re-direct examination by the proponent – After the cross-examination of the witness has been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given during the cross-examination. On re-direct examination, questions on matters not dealt with during the cross-examination, may be allowed by the court in its discretion.
4. Re-cross-examination by the opponent – Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.
Leading questions – a question which suggests to the witness the answer which the examining party desires
GR: Leading questions not allowed.
Exceptions
1. cross examination;
2. Preliminary matters;
3. difficulty in getting direct and intelligible answers from a witness who is
1. ignorant, or
2. a child of tender years, or
3. feeble mind, or
4. a deaf-mute;
5. unwilling or hostile witness; or
6. witness is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
Misleading question – one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.
Misleading questions are never allowed. No exceptions.
Sec. 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense.
GR: The party producing a witness is not allowed to impeach his credibility.
Exceptions: When party may impeach his own witness (except evidence of bad character)
1. an unwilling or hostile witness; or
2. a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
Grounds for declaring a witness unwilling or hostile
1. adverse interest
2. unjustified reluctance to testify, or
3. misled the party into calling him to the witness stand.
Consequences of being an unwilling, hostile, or adverse witness
1. may be impeached by the proponent, except by evidence of bad character
2. may also be impeached by the opponent
3. may be cross-examined by the opponent, only on the subject matter of his direct examination
4. proponent may ask leading questions
Sec. 36. Objection to evidence offered orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
Grounds for objection – Hearsay, argumentative, leading, misleading, incompetent, irrelevant, best evidence rule, parol evidence rule, question has no basis
When evidence considered offered
People v. Franco, 269 SCRA 211 (1997) The court shall consider no evidence, even an extra-judicial confession, which has not been formally offered. Mere fact that evidence has been identified and marked in the course of the examination of a witness, without the contents being recited in his testimony, does not mean that it has been formally offered as evidence. Identification of documentary evidence is done in the course of the trial and is accompanied by the marking of the evidence as an exhibit, while the formal offer of documentary evidence is done only when the party rests its case.
Philippine Bank of Commerce v. CA, 195 SCRA 567 (1991) Where the genuineness and due execution of documents of an instrument attached to a complaint are deemed admitted by failure to specifically deny it under oath, such instruments are considered as evidence although they were not formally offered.
Rule 8, Sec. 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.
When objection should be made
People v. Java, 227 SCRA 668 (1993) Objection to testimony on the ground of lack of a formal offer of the testimony should be done when the witness was called to testify.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 (1990) Objection to documentary evidence must be made at the time it is formally offered (i.e. when the party rests its case) as an exhibit and not before. Objection prior to that time (e.g. identification of the evidence) is premature. Mere identification and marking is not equivalent to a formal offer of the evidence. A party may decide to not offer evidence already identified and marked.

WEIGHT AND SUFFICIENCY OF EVIDENCE (RULE 133)
In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider
1. all the facts and circumstances of the case
2. the witnesses’ manner of testifying
3. their intelligence
4. their means and opportunity of knowing the facts to which they are testifying
5. the nature of the facts to which they testify
6. the probability or improbability of their testimony
7. their interest or want of interest
8. their personal credibility so far as the same may legitimately appear upon the trial.
9. number of witnesses, though the preponderance is not necessarily with the greater number.
A cause of action on the ground of reformation of instrument must be proven by clear and convincing evidence.
In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
A defense of self-defense must be proven by clear and convincing evidence.
In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence
Substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion
Generally, the motive of the accused is immaterial in a criminal case, not being an essential element of the crime, hence, it does not need to be proved.
Exceptions:
1. when there is no eyewitness and the suspicion is likely to fall on a considerable number of persons;
2. when there is doubt as to whether the accused is or is not the person who committed the offense;
3. when it is necessary to determine the sanity of the accused or the voluntariness of the act, the specific nature of the crime committed, or whether the shooting was intentional or accidental;
4. when the accused interposes self-defense or defense of stranger.
—- O —-

Remedial Law, Fundamental Concepts

2009-12-07T21:46:00.000-08:00

REMEDIAL LAW
I. FUNDAMENTAL CONCEPTS
REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion [Bustos vs. Lucero, 81 Phil. 640]. It is also known as Adjective Law.
SUBSTANTIVE LAW is one which creates, defines, and regulates rights.
PROCEDURE is the method of conducting a judicial proceeding. It includes whatever is embraced in the technical terms, pleadings, practice, and evidence. It is the means by which the power or authority of a court to hear and decide a class of cases is put to action [Manila Railroad vs. Atty. General, 20 Phil. 523].
JURISDICTION is the power to hear and decide cases [Herrera vs. Baretto & Joaquin, 25 Phil. 245]. It is the power with which courts are invested with the power of administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of a case on the merits, it must acquire jurisdiction over the subject matter and the parties [Republic Planters Bank vs. Molina, 166 SCRA 39].
JURISDICTION VENUE
The authority to hear and determine a case The place where the case is to be heard or tried
A matter of substantive law A matter of procedural law
Establishes a relation between the court and the subject matter Establishes a relation between plaintiff and defendant, or petitioner and respondent
Fixed by law and cannot be conferred by the parties May be conferred by the act or agreement of the parties
PRINCIPLE OF THE EXERCISE OF EQUITY JURISDICTION is a situation where the court is called upon to decide a particular situation and release the parties from their correlative obligations but if it would result in adverse consequences to the parties and the public, the court would go beyond its power to avoid negative consequences in the release of the parties [Agne vs. Director of Lands, 181 SCRA 793; Naga Telephone Co. vs. CA, 48 SCAD 539].
ELEMENTS OF JURISDICTION:
(1) Jurisdiction over the subject matter or nature of the case (2) Jurisdiction over the parties (3) Jurisdiction over the res
It is conferred by law (BP 129), and does not depend on the objection or the acts or omissions of the parties or anyone of them [Republic vs. Sangalang, 159 SCRA 515].

It is not waivable, except in cases of estoppel to question or raise jurisdiction [Tijam vs. Sibonghanoy, 23 SCRA 29].
It is determined upon the allegations made in the complaint, irrespective of whether the plaintiff is entitled or not, to recover upon the claim asserted therein, a matter resolved only after and as a result of the trial. Jurisdiction over the person of the plaintiff is acquired by the filing of the initiatory pleading, like a complaint.

Jurisdiction over the person of the defendant is acquired by the proper service of summons, or by his voluntary appearance in court and his submission to the authority of the court [Paramount Industries vs. Luna, 148 SCRA 564].
It is acquired by the seizure of the thing under legal process whereby it is brought into actual custody of law, or it may result from the institution of a legal proceeding wherein the power of the court over the thing is recognized and made effective [Banco-Español Filipino vs. Palanca, 37 Phil. 291].
ELEMENTS OF CRIMINAL JURISDICTION:
(1) Territorial jurisdiction (2) Jurisdiction over the subject matter (3) Jurisdiction over the person of the accused
It is determined by the geographical area over which a court presides, and the fact that the crime was committed, or any of its essential ingredients took place within said area [US vs. Jueves, 23 Phil. 100]. It is determined by the allegations of the complaint or information in accordance with the law in force at the time of the institution of the action, not at the time of its commission [US vs. Mallari, 24 Phil. 366]. It is acquired by the voluntary appearance or surrender of the accused or by his arrest [Choc vs. Vera, 64 Phil. 1066].
INSTANCES WHEN A COURT MAY LOSE JURISDICTION EVEN IF IT HAS BEEN ATTACHED TO IT:
1 When a subsequent law provides a prohibition for the continued exercise of jurisdiction [Rilloraza vs. Arciaga, 21 SCRA 717].
2 Where the law penalizing an act which is punishable is repealed by a subsequent law. The reason is that, the State loses the power to prosecute when the law is repealed, hence, the court has no more power to decide [People vs. Pastor, 77 Phil. 1000].
3 When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right [Chavez vs. CA, 24 SCRA 663].
4 When the proceeding s in the court acquiring jurisdiction is terminated, abandoned or declared void [Seven vs. Pichay, 108 Phil. 419].
5 When the statute expressly provides, or is construed to the effect that it intended to operate as to actions pending before its enactment [Bengzon vs. Inciong, 91 SCRA 284].
6 Once appeal has been perfected [Alma vs. Abbas, 18 SCRA 836].
7 When the law is curative [Garcia vs. Martinez, 90 SCRA 331].
DOCTRINE OF JUDICIAL STABILITY: Should one branch be permitted to equally assert, assume, or retain jurisdiction over a case in controversy over which another coordinate or co-equal branch has already assumed jurisdiction, then that would be sanctioning undue interference by one branch over another. With that, judicial stability would be meaningless precept in a well-ordered administration of justice [Parcon vs. CA, 111 SCRA 262].
JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS:
1. Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and
2. Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of the kind, nature, value or amount therof; provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. [Sec. 2, RA 7691].
JURISDICTION OF REGIONAL TRIAL COURTS (RTC):
1. In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;
2. In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20,000, or for civil actions in Metro Manila where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the MeTC, MTC, and MCTC;
3. In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds P200,00, or in Metro Manila where such demand or claim exceeds P400,00;
4. In all matters of probate, both testate and intestate, where the gross value of the estate exceeds P200,00 or probate mattes in Metro Manila where such value exceeds P400,000;
5. In all actions involving the contract of marriage and marital relations;
6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising juridicial or quasi-judicial functions;
7. In all civil actions and civil proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and
8. In all other cases in which the demand, exclusive of interest and damages of whatever kind, attorney’s fees, litigation expenses, and cost or the value of the property in controversy exceeds P200,000, or in such other cases in Metro Manila where the demand, exclusive of the above-mentioned items exceeds P400,000.
JURISDICTION OF COURT OF APPEALS (CA):
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;
2. Exclusive original jurisdiction over actions for annulment of judgments of RTCs;
3. Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of RTCs and quasi-judicial agencies, instrumentalities, boards, or omissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of the Judiciary Act of 1948;
4. The CA shall have the power to receive evidence and perform any and all acts necessary to resolve factual issues raised in (a) cases falling within its original jurisdiction, such as actions for annulment of judgments of RTCs, (b) cases falling within its appellate jurisdiction where a motion for new trial based only on newly discovered evidence is granted by it.
JURISDICTION OF THE SUPREME COURT (SC):
1. Cases affecting ambassadors, other public ministers and consuls, and other petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
2. All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the SC en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of the majority of the Members who actually took part in the deliberation on the issues in the case and voted thereon;
3. Cases on matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members.
4. The Supreme Court has the power to:
(a) exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus;
(b) review, revise, reverse, modify, of affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(1) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law presidential decree, proclamation, order, instruction, ordinance, or regulations is in question;
(2) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto;
(3) all cases in which the jurisdiction of any lower court is in issue;
(4) all criminal cases in which the penalty imposed in reclusive perpetua or higher;
(5) all cases in which only an error or question of law is involved.
CLASSES OF JURISDICTION:
General – power to adjudicate all controversies except those expressly withheld from the plenary powers of the court.
Special or Limited – restricts the courts jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law.
Original – power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law.
Appellate – authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case now elevated for judicial review.
Exclusive – power to adjudicate a case or proceeding to the exclusion of all other courts at that stage.
Concurrence/Confluent/Coordinate – power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories.

The Neypes Rule (Fresh Period Rule)

2009-12-07T21:38:00.000-08:00

DOMINGO NEYPES, ET AL. vs. COURT OF APPEALS, ET AL.
G.R. No. 141524 (September 14, 2005)

FACTS:

Petitioners filed an action for annulment of judgment and titles of land and/or reconveyance and/or reversion with preliminary injunction before the RTC against the private respondents. Later, in an order, the trial court dismissed petitioners’ complaint on the ground that the action had already prescribed. Petitioners allegedly received a copy of the order of dismissal on March 3, 1998 and, on the 15th day thereafter or on March 18, 1998, filed a motion for reconsideration. On July 1, 1998, the trial court issued another order dismissing the motion for reconsideration which petitioners received on July 22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of appeal and paid the appeal fees on August 3, 1998.

On August 4, 1998, the court a quo denied the notice of appeal, holding that it was filed eight days late. This was received by petitioners on July 31, 1998. Petitioners filed a motion for reconsideration but this too was denied in an order dated September 3, 1998. Via a petition for certiorari and mandamus under Rule 65, petitioners assailed the dismissal of the notice of appeal before the CA. In the appellate court, petitioners claimed that they had seasonably filed their notice of appeal. They argued that the 15-day reglementary period to appeal started to run only on July 22, 1998 since this was the day they received the final order of the trial court denying their motion for reconsideration. When they filed their notice of appeal on July 27, 1998, only five days had elapsed and they were well within the reglementary period for appeal. On September 16, 1999, the CA dismissed the petition. It ruled that the 15-day period to appeal should have been reckoned from March 3, 1998 or the day they received the February 12, 1998 order dismissing their complaint. According to the appellate court, the order was the “final order” appealable under the Rules.

ISSUES:

(1) Whether or not receipt of a final order triggers the start of the 15-day reglmentary period to appeal, the February 12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing the Motion for Reconsideration.

(2) Whether or not petitioners file their notice of appeal on time.

HELD:

(1) The July 1, 1998 order dismissing the motion for reconsideration should be deemed as the final order. In the case of Quelnan v. VHF Philippines, Inc., the trial court declared petitioner non-suited and accordingly dismissed his complaint. Upon receipt of the order of dismissal, he filed an omnibus motion to set it aside. When the omnibus motion was filed, 12 days of the 15-day period to appeal the order had lapsed. He later on received another order, this time dismissing his omnibus motion. He then filed his notice of appeal. But this was likewise dismissed ― for having been filed out of time. The court a quo ruled that petitioner should have appealed within 15 days after the dismissal of his complaint since this was the final order that was appealable under the Rules. The SC reversed the trial court and declared that it was the denial of the motion for reconsideration of an order of dismissal of a complaint which constituted the final order as it was what ended the issues raised there. This pronouncement was reiterated in the more recent case of Apuyan v. Haldeman et al. where the SC again considered the order denying petitioner’s motion for reconsideration as the final order which finally disposed of the issues involved in the case. Based on the aforementioned cases, the SC sustained petitioners’ view that the order dated July 1, 1998 denying their motion for reconsideration was the final order contemplated in the Rules.

(2) YES. To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. Henceforth, this “fresh period rule” shall also apply to Rule 40, Rule 42, Rule 43 and Rule 45. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

The SC thus held that petitioners seasonably filed their notice of appeal within the fresh period of 15 days, counted from July 22, 1998 (the date of receipt of notice denying their motion for reconsideration). This pronouncement is not inconsistent with Rule 41, Section 3 of the Rules which states that the appeal shall be taken within 15 days from notice of judgment or final order appealed from. The use of the disjunctive word “or” signifies disassociation and independence of one thing from another. It should, as a rule, be construed in the sense in which it ordinarily implies. Hence, the use of “or” in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the “final order,” which we already determined to refer to the July 1, 1998 order denying the motion for a new trial or reconsideration.

Neither does this new rule run counter to the spirit of Section 39 of BP 129 which shortened the appeal period from 30 days to 15 days to hasten the disposition of cases. The original period of appeal (in this case March 3-18, 1998) remains and the requirement for strict compliance still applies. The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to review the case and, in the process, minimize and/or rectify any error of judgment. While we aim to resolve cases with dispatch and to have judgments of courts become final at some definite time, we likewise aspire to deliver justice fairly.

To recapitulate, a party litigant may either file his notice of appeal within 15 days from receipt of the RTC’s decision or file it within 15 days from receipt of the order (the “final order”) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3. Petitioners here filed their notice of appeal on July 27, 1998 or five days from receipt of the order denying their motion for reconsideration on July 22, 1998. Hence, the notice of appeal was well within the fresh appeal period of 15 days, as already discussed.

NOTE:

The “FRESH PERIOD RULE” do not apply to Rule 64 (Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on Audit) because Rule 64 is derived from the Constitution. It is likewise doubtful whether it will apply to criminal cases.

Remedial Law

2009-12-07T21:29:00.000-08:00

RULES OF CIVIL PROCEDURE

RULE 1

Sec. 2. In what courts applicable. — These Rules shall apply in all the courts, except as otherwise provided by the Supreme Court.

Sec. 3. Cases governed. — These Rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings.

(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.

(b) A criminal action is one by which the State prosecutes a person for an act or omission punishable by law.

(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.

Civil action – one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong

Criminal action – one by which the State prosecutes a person for an act or omission punishable by law.

Special proceeding – a remedy by which a party seeks to establish a status, a right, or a particular fact

Special civil actions are called so because special rules govern.

Sec. 4. In what cases not applicable. — These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient.

Cases where the Rules apply only by analogy or suppletorily

1. election cases
2. land registration
3. cadastral
4. naturalization and
5. insolvency proceedings, and
6. other cases not herein provided for

Sec. 5. Commencement of action. — A civil action is commenced by the filing of the original complaint in court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court.
A. Ordinary Civil Actions (Rules 2-5)
Kinds of actions

Real action – the subject matter of the action is real property (e.g. foreclosure of real mortgage)

Personal action – the subject matter of the action is personal property (e.g. foreclosure of chattel mortgage)

Action in personam – the decision is enforceable only against the parties

Action in rem – the decision is enforceable against the whole world

Action quasi in rem – A real action may still be an action in personam.
Rule 2

Section 1. Ordinary civil actions, basis of. — Every ordinary civil action must be based on a cause of action.

Sec. 2. Cause of action, defined. — A cause of action is the act or omission by which a party violates a right of another.

CAUSE OF ACTION – act or omission by which a party violates a right of another.

Sec. 3. One suit for a single cause of action. — A party may not institute more than one suit for a single cause of action.

Sec. 4. Splitting a single cause of action; effect of. — If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.

A plaintiff can not split a single cause of action, but he may join several causes of action against the same defendant, subject to the following rules:

1. must comply with the rules on joinder of parties

2. joinder shall not include special civil actions or actions governed by special rules (e.g. summary procedure)

3. where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the RTC provided

a. one of the causes of action falls within the jurisdiction of the RTC court and

b. the venue lies within such RTC

4. where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction.

RULE 3 – PARTIES TO CIVIL ACTIONS

Section 1. Who may be parties; plaintiff and defendant. — Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term “plaintiff” may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term “defendant” may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.

Sec. 2. Parties in interest. — A real party in interest is 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 action must be prosecuted or defended in the name of the real party in interest.

Sec. 3. Representatives as parties. — Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.

Sec. 4. Spouses as parties. — Husband and wife shall sue or be sued jointly, except as provided by law.

Sec. 5. Minor or incompetent persons. — A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem.

Rule on permissive joinder of parties – All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action. Misjoinder of causes of action is not a ground to dismiss a case. The proper remedy is to severe the other cause of action and to try separately. [Rule 6]

Sec. 7. Compulsory joinder of indispensable parties. — Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

Indispensable parties — parties in interest without whom no final determination can be had of an action. Failure to implead an indispensable party is ground to dismiss the case.

Necessary party – one who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action. Failure to implead a necessary party is a waiver of the claim against such party. It is not ground to dismiss the case. [Sec. 8]

Sec. 9. Non-joinder of necessary parties to be pleaded. — Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party.

Sec. 10. Unwilling co-plaintiff. — If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.

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

The non-joinder of a party which does not cause dismissal refers to necessary parties. Non-joinder of an indispensable party is a ground to dismiss the action.

Sec. 12. Class suit. — When the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.

Requisites of a Class Suit

1. the subject matter of the controversy is one of common or general interest
2. to many persons so numerous it is impracticable to join all as parties
3. a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned sues or defends for the benefit of all
4. Any party in interest shall have the right to intervene to protect his individual interest.

Sec. 13. Alternative defendants. — Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.

Sec. 14. Unknown identity or name of defendant. — Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require; when his identity or true name is discovered, the pleading must be amended accordingly.

Sec. 15. Entity without juridical personality as defendant. — When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known.

In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed.

If the defendant dies before a case may be filed

1. for recovery of sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim; because the amount sought to be collected is definite
2. for recovery of property – file a separate case against the executor/administrator; because the amount of the claim is unliquidated
3. for damages for injury – file a separate case before the courts.

If the defendant dies

1. before a case is filed
1. for recovery of a sum of money – file a claim before the estate proceedings, where the creditor will have to present evidence on the validity of his claim
2. real action and action for damages – file a separate case against the executor/administrator
3. after a case is filed but before judgment
1. for recovery of a sum of money – case shall not be dismissed but shall instead be allowed to continue until entry of final judgment; the judgment is then filed as a claim in the estate proceedings; decedent’s legal representative should be substituted for the decedent.
2. real action and action for damages

1) heirs of the deceased may be allowed to be substituted, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

2) If no legal representative appears, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. Priority to in the appointment to

a) Surviving spouse, or next of kin

b) one or more of the principal creditors, if competent and willing to serve

c) other person as the court may select.

3) in case conflict of interest where a creditor being appointed administrator is to appoint a special administrator where the creditor appointed will have to file his own claim

1. after judgment but before execution
1. for sum of money – present the writ of execution as a claim before the probate court
2. real action and action for damages – substitute the defendant with his administrator or executor, and enforce the writ against him without going to the probate court
3. after levy on execution (applies only to recovery of a sum of money) – continue with the auction sale and the officer making the sale shall deliver the proceeds to the plaintiff, and account to the executor or administrator for any excess.

RULE 5 – UNIFORM PROCEDURE IN TRIAL COURTS

Rules on summary procedure are applicable in the following cases before the MTCs

1. Civil cases
1. forcible entry and unlawful detainer, regardless of amount of damages (compensation for use of property) or unpaid rentals
2. except probate proceedings, civil cases where the total amount of the plaintiff’s claim does not exceed P10,000 exclusive of interest and costs.
3. Criminal cases
1. traffic violations
2. rental law violations
3. municipal or city ordinances violations
4. damage to property through criminal negligence, where the imposable fine does not exceed P10,000
5. penalty not exceeding 6-month imprisonment, or a P1,000 fine

Exceptions:

1. civil case where the plaintiff’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure
2. criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure.

Recall that criminal cases that should undergo reconciliation proceedings under the Katarungang Pambaranggay are offenses punishable by not more than 1 year or a fine not over P5,000

Therefore nearly all summary procedure criminal cases must go through the Katarungang Pambaraggay.

Sec. 2. Determination of applicability

Upon filing of the initiatory pleading, the court shall declare whether the case is governed by the rule on summary procedure.

Civil Cases

Procedure in summary civil cases

1. complaint is filed
2. court declares it falls under summary procedure
3. may dismiss the case motu proprio; if not, issue summons
4. defendant files his answer within 10 days (defenses and claims not pleaded are waived, except lack of jurisdiction over subject matter)
5. answer to counterclaims or cross-claims within 10 days from service of the answer
6. preliminary conference not later than 30 days after the last answer is filed; absence of
1. plaintiff – cause for the dismissal of his complaint; defendant entitled to judgment on his counterclaim as if plaintiff did not file an answer to the counterclaim; all cross-claims dismissed
2. sole defendant – plaintiff shall be entitled to judgment as if defendant did not file an answer
3. 1 or some of many defendants sued under a common cause of action who had pleaded a common defense – no adverse effect on the defense
4. the court issues record of preliminary conference, within 5 days after the termination of the preliminary conference, covering
1. terms of any amicable settlement
2. stipulations or admissions entered into by the parties
3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within 30 days from issuance of the order
4. material facts which remain controverted
5. matters intended to expedite the disposition of the case.
5. parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers, within 10 days issuance of record of preliminary conference
6. within 30 days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court either
1. renders judgment
2. requires clarification of certain material facts, within 10 days from receipt of said order; then render judgment within 15 days from receipt of the last clarificatory affidavits, or the expiration of the period for filing the same

A. Pleadings allowed

Allowable pleadings (must all be verified)

1. complaint
2. compulsory counterclaims
3. cross-claims in the answer
4. answer

Note that permissive counterclaims and 3rd party complaints are not allowed.

Sec. 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded.

Sec. 6. Effect of failure to answer.

Failure of the defendant to answer – the court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for; the court may in its discretion reduce the amount of damages and attorney’s fees claimed for being excessive or otherwise unconscionable.

Note that when the defendant fails to answer in summary procedure, the court may motu propio rule for the plaintiff. In ordinary civil actions, the court can do so only upon motion by the plaintiff to declare the defendant in default and after plaintiff supports his claim with evidence.

Sec. 7. Preliminary conference; appearance of parties. - Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.

* Effect of failure to appear at the preliminary conference by

1. the plaintiff – cause for the dismissal of his complaint; defendant who appears entitled to judgment on his counterclaim as may be warranted by the facts alleged. All cross-claims shall be dismissed.
2. the sole defendant –plaintiff entitled to judgment as may be warranted by the facts alleged in his complaint
3. one of many defendants sued under a common cause of action who had pleaded a common defense – case continues

Sec. 8. Record of preliminary conference. - Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to:

a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;

b) The stipulations or admissions entered into by the parties;.

c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order;

d) A clear specification of material facts which remain controverted; and

e) Such other matters intended to expedite the disposition of the case.

Sec. 9. Submission of affidavits and position papers. - Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.

Sec. 10. Rendition of judgment. - Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment.

However should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

Criminal Cases

Summary Procedure in Criminal cases

1. Initiated either by complaint or information (only by information, in Metro Manila and Chartered cities, except when the offense cannot be prosecuted de oficio)
2. As many copies of the information or complaint, with affidavits of complainant and his witnesses, as there are accused plus 2, within 5 days from filing; otherwise the case may be dismissed
3. Court declares if the case is covered by the rule on summary procedure
4. If commenced by complaint and patently without basis or merit, court may dismiss the case; otherwise, court requires accused to submit his counter-affidavit and the affidavits of his witnesses and any evidence in his behalf
5. Filing and service on prosecution of defense’s evidence within 10 days from receipt of the order
6. prosecution may file reply affidavits within 10 days after receipt of the counter-affidavits of the defense.
7. Court either dismisses the case, or set arraignment and trial
8. If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
9. Preliminary conference
1. no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel
2. parties must manifest intention to present additional affidavits or counter-affidavits as part of his direct evidence, and it should be allowed by the court; filed and served within 3 days after the termination of the preliminary conference; accused may file and serve his counter-affidavits within 3 days from such service.
3. Trial – the affidavits submitted by the parties shall constitute the direct testimonies, subject to cross-examination, redirect or re-cross examination; failure of affiant to testify will render his affidavit incompetent for the offeror, but admissible for the opposing party; witnesses must submit affidavits before testifying, except on rebuttal or surrebuttal
4. Accused shall not be arrested, except for failure to appear when required; Accused may be released either on bail or recognizance
5. the court renders judgment within 30 days after the termination of trial.

Note that preliminary conference is required in both civil and criminal cases.

In criminal cases, there is hearing and actual trial. In civil cases, only the pleadings, affidavit, evidence, and position papers are considered. There is no hearing or trial in summary civil cases.

Only those who have executed affidavits may testify on the stand, except rebuttal and sur-rebuttal witnesses.

Sec. 11. How commenced. - The filing of criminal cases falling within the scope of this Rule shall be either by complaint or by information: Provided, however, that in Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio.

The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for the court’s files. If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed.

Sec. 12. Duty of court. -

(a) If commenced by compliant. - On the basis of the compliant and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody.

(b) If commenced by information. - When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.

* Ground for motu propio dismissal of criminal case covered by summary procedure initiated by complaint – patently without basis or merit. The court can not dismiss a criminal case outright if it is commenced by information.

Sec. 13. Arraignment and trial. - Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.

Sec. 14. Preliminary conference. - Before conducting the trial, the court shall call the parties to a preliminary conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Sec. 15. Procedure of trial. - At the trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination, redirect or re-cross examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof.

However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within three (3) days from such service.

Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court.

Sec. 17. Judgment. - Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial.

Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.

Failure to comply with Katarungang Pambaranggay when required is ground for dismissal of the complaint, unless the accused was arrested without a warrant.

* Prohibited pleadings and motions (Section 19):

1. Motion to dismiss the complaint or to quash the complaint or information, except on the ground of lack of jurisdiction over the subject matter, or failure to comply with the Katarungang Pambaranggay
2. Motion for a bill of particulars
3. MNT, or MfR, or motion for opening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third party complaints
12. Interventions.

Sec. 20. Affidavits. - The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

* Special requirement for affidavits under summary procedure: must state only admissible evidence and show their competence to testify on such matters. Otherwise, the offering party or counsel may be subject to disciplinary action and the inadmissible portion is expunged.

Sec. 21. Appeal. - The judgment or final order shall be appealable to the appropriate regional trial court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 (of the 1964 Rules of Court) shall be deemed repealed.

* Summary decisions are appealable to the RTC. RTC decision in ejectment cases are immediately executory.

RULES 6 – 11: KINDS OF PLEADINGS

Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

The complaint is the pleading alleging the plaintiff’s cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint.

An answer is a pleading in which a defending party sets forth his defenses.

Defenses

(a) A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance.

A counterclaim is any claim which a defending party may have against an opposing party.

A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount.

A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Counterclaim is any claim which a defending party may have against an opposing party

Requirements for a compulsory counterclaim:

1. arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim
2. does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
3. must be within the jurisdiction of the court both as to the amount and the nature

In an original action before the RTC, a counterclaim may be considered compulsory regardless of the amount. A permissive counterclaim must also be within the jurisdiction of the court, and must not require the presence of 3rd parties over whom the court can not acquire jurisdiction. It must not be connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim, otherwise, it would be a compulsory counterclaim.

Cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set forth in an amended or supplemental complaint.

A third (fourth, etc.)-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.

Necessary parties – When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.

RULE 7 – PARTS OF A PLEADING

Significance of counsel’s signature

1. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.
2. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay.
3. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

Verification – affidavit by an affiant that he has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

Note that “belief” as basis for verification has been deleted by a 1 May 2000 amendment.

based on “information and belief,” or upon “knowledge, information and belief” is not sufficient verification.

Not all pleadings need to be verified.

Certification against forum shopping (applies to initiatory pleadings; de Leon: and also to petitions for review, and petition for review on certiorari)

1. 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 the best of his knowledge, no such other action or claim is pending therein
2. if there is such other pending action or claim, a complete statement of the present status thereof; and
3. if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within 5 days to the court wherein his aforesaid complaint or initiatory pleading has been filed

If dismissal of a case on the ground of lack of certificate against forum shopping is silent, it is deemed to be without prejudice. If forum shopping was willful and deliberate, dismissal shall be with prejudice.

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADING

Manner of making averments of

1. Fraud or mistake – particular
2. malice, intent, knowledge, or other condition of the mind – general

If allegation of fraud or mistake is not particular, the remedy is to file a bill of particulars.

Where an action or defense is based on a document, the substance of such document be set forth in the pleading and a copy thereof attached as an exhibit. The opposing party must specifically deny such document under oath, otherwise, the genuineness and due execution of the instrument shall be deemed admitted.

The rule applies only to “pleadings,” not motions. Hence, an actionable document in a MTD need not be denied under oath.

Note that even documents on which a defense is based must be denied under oath. This is an exception to the rule that all new matters in the answer are deemed controverted by failure to file a reply.

When denial under oath of an actionable document not required

1. the adverse party is not a party to the instrument
2. compliance with an order for an inspection of the original is refused

Allegations that may be general

1. ultimate fact, no evidentiary facts
2. pertinent provisions of law on which a defense relies on
3. conditions precedent
4. capacity or authority to sue and be sued, or legal existence must be averred
5. Malice, intent, knowledge or other condition of the mind
6. judgment of another court or tribunal, domestic or foreign
7. official document or official act
8. denial of unliquidated damages

Allegations that must be specific

1. Questions as to legal existence or capacity to sue and be sued
2. circumstances constituting fraud or mistake must be stated with particularity
3. substance of an document on which an action or defense is based
4. contest of an actionable document (under oath)
5. denial of plaintiff’s allegations
6. denial of usurious interest (under oath)

For an allegation that defendant is “without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint” to constitute denial, it must be shown that the defendant indeed was in no position to know the truth of the averment in the complaint. But if it can be demonstrated that he in fact was in a position to know, then the denial is ineffective and the averment is deemed admitted.

Matters that may be stricken out from a pleading

1. sham or false
2. redundant
3. immaterial
4. impertinent
5. scandalous

RULE 9 – EFFECT OF FAILURE TO PLEAD

Defenses appearing on the complaint which are not waived by failure to plead, on which the court may dismiss the claim:

1. lack of jurisdiction over the subject matter
2. another action pending between the same parties for the same cause (lis pendentia)
3. action is barred by a prior judgment (res adjudicata)
4. Statute of limitations

Procedure for declaring a defending party in default

1. failure to answer within the time allowed
2. motion of the claiming party
3. notice to the defending party
4. court declares the defending party in default
5. Court either
1. requires the claimant to submit evidence (may be delegated to the clerk of court), or
2. renders judgment granting the claimant such relief as his pleading may warrant, which shall not

1) exceed the amount prayed for or

2) be different in kind from that prayed for nor

3) award unliquidated damages

The court has no authority to motu proprio declare a defendant in default. If the plaintiff does not move to declare the defendant in default, the court may motu proprio dismiss with prejudice the action on the ground of failure to prosecute under Rule 17 Sec. 3.

Effects of default

1. defaulting party still entitled to notice of subsequent proceedings, but not to take part in the trial
2. defaulting party may move to set aside the order of default, provided
1. filed at any time after notice of default and before judgment
2. motion must be under oath
3. proper showing that

1) his failure to answer was due to fraud, accident, mistake or excusable negligence (FAME), and

2) he has a meritorious defense

1. When some of several defending parties answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented.

If Rule 38 is no longer available, then use Rule 47 (Annulment of Judgments or Final Orders and Resolutions)

Actions where no defaults allowed

1. annulment
2. declaration of nullity
3. legal separation

RULE 11 – WHEN TO FILE RESPONSIVE PLEADINGS

When response to the following pleadings must be filed

1. main complaint, third or fourth party complaint – within 15 days after service of summons, unless a different period is fixed by the court
2. if defendant is a foreign private juridical entity and service of summons is made on the government official so designated by law – within 30 days after receipt of summons by the foreign entity
3. amended claims
1. 15 days from service of amended complaint, if amended as a matter of right
2. 10 days from notice of admission of amended complaint, if amended with leave of court (An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed)
3. answer, counterclaim or cross-claim – within 10 days from service
4. supplemental complaint – within 10 days from notice of the admitting court order, unless a different period is fixed by the court (answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed).

Grounds to admit an omitted counterclaim or cross-claim by amendment(before judgment)

1. oversight
2. inadvertence
3. excusable neglect
4. justice requires

RULE 12 – BILL OF PARTICULARS

Bill of particulars – definite statement of any matter which is not averred with sufficient definiteness or particularity to enable the adverse party properly to prepare his responsive pleading.

Procedure in bill of particulars

1. application by an adverse party before responding to a pleading, or within 10 days from service of the reply
2. clerk of court brings it to the attention of the court
3. (no hearing necessary) the court either
1. deny it outright
2. grant it outright
3. allow the parties the opportunity to be heard
4. If the motion is granted, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court.
5. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party
6. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event.
7. If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just.
8. A bill of particulars becomes part of the pleading for which it is intended.

RULE 13 – FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Filing – the act of presenting the pleading or other paper to the clerk of court.

Service – the act of providing a party with a copy of the pleading or paper concerned.

1. If any party has appeared by counsel, service should be upon his counsel, unless service upon the party himself is ordered by the court.
2. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

Papers required to be filed and served

1. judgment
2. resolution
3. order
4. pleading subsequent to the complaint
5. written motion
6. notice
7. appearance
8. demand
9. offer of judgment
10. or similar papers

Except court papers, resort to modes other than personal service must be accompanied by a written explanation why the service or filing was not done personally, otherwise it is ground to consider the paper as not filed.

Two ways of filing

1. personally presenting the original copies to the clerk of court, who shall endorse on the pleading the date and hour of filing
2. sending the original copies by registered mail, the date of the mailing as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing

Note that filing may not be by ordinary mail or substituted service. These methods are available only on service of papers, not filing.

Proof of filing

1. its existence in the record of the case
2. If it is not in the record, but is claimed to have been filed
1. Personally – written or stamped acknowledgment of its filing by the clerk of court on a copy
2. registered mail – by the

1) registry receipt, and

2) affidavit of the person who did the mailing, containing a full statement of

a) the date and place of depositing the mail in the post office

b) in a sealed envelope

c) addressed to the court

d) with postage fully prepaid

e) with instructions to the postmaster to return the mail to the sender after 10 days if not delivered

Four modes of service of papers

1. personal – complete upon delivery
2. Registered mail – complete upon actual receipt, or after 5 days receipt of first notice of the postmaster, whichever is earlier
3. ordinary mail – complete upon expiration of 10 days after mailing, unless the court otherwise provides
4. substituted service – complete upon delivery to the clerk of court

Priorities in personal service of papers

1. leaving it in his office with his clerk or with a person having charge thereof
2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at his residence, with a person of sufficient age and discretion then residing therein

Priorities in service by mail of papers

1. registered mail to office, if known
2. otherwise registered mail to residence, if known
3. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.

Requisites for substituted service of papers

1. service can not be made personally or by mail
2. the office and residence of the party or his counsel being unknown
3. deliver a copy to the clerk of court
4. with proof of failure of both personal service and service by mail (certified or sworn copy of the notice given by the postmaster to the addressee)

Sec. 13. Proof of service. — Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee.

RULE 14 – SUMMONS

Contents of a summons

1. names of the court and parties to the action
2. a direction that the defendant answer within the time fixed by these Rules
3. a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.
4. copy of the complaint and order for appointment of guardian ad litem, if any

Procedure in summons

1. filing of the complaint and the payment of the requisite legal fees
2. the clerk of court issues the corresponding summons to the defendants
3. summons served by
1. the sheriff
2. his deputy
3. other proper court officer, or
4. any suitable person authorized by the court issuing the summons, for justifiable reasons
5. If
1. service has been completed – within 5 days from service, the server shall

1) serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel and

2) return the summons to the clerk who issued it, accompanied by proof of service

1. If a summons is returned without being served on any or all of the defendants

1) server shall serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service within 5 days therefrom

2) the clerk, on demand of the plaintiff, may issue an alias summons (also if summons has been lost)

the rules on summons on defendant who is a

1. resident
1. Present in the Philippines

1) Personal service (Rule 14, Sec. 6)

2) Substituted service (Rule 14, Sec. 7)

3) Publication, but only if

a) his identity or whereabouts is unknown (Rule 14, Sec. 14), AND

b) the action is in rem or quasi in rem [Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)]

1. Absent from the Philippines

1) Substituted service (Rule 14, Sec. 7)

2) Extraterritorial service {Rule 14, Sec. 16 and 15; action need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92 (1996)]}

1. non-resident
1. Present in the Philippines

1) Personal service (Rule 14, Sec. 6)

2) Substituted service (Rule 14, Sec. 7)

1. Absent from the Philippines

1) Action in rem or quasi in rem – only Extraterritorial service (Rule 14, Sec. 15)

2) Action in personam, and judgment can not be secured by attachment (e.g. action for injunction)

a) wait for the defendant to come to the Philippines and to serve summons then

b) bait the defendant to voluntarily appear in court (Rule 14, Sec. 20)

c) plaintiff can NOT resort to extraterritorial service of summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737 (1988)].

Requisites for service by publication

1. the action is in rem or quasi in rem
2. defendant’s identity or whereabouts
1. are unknown and
2. cannot be ascertained by diligent inquiry
3. with leave of court

Requisites for extraterritorial service

1. Either
1. defendant does not reside and is not found in the Philippines, or
2. defendant ordinarily resides within the Philippines, but who is temporarily out of it
3. action either
1. affects the personal status of the plaintiff or
2. relates to, or the subject of which is, property within the Philippines

1) in which the defendant has or claims a lien or interest, or

2) in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or

3) belongs to the defendant and has been attached

1. leave of court
2. the order shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer

Actions in rem or quasi in rem

1. affects the personal status of the plaintiff or
2. relates to, or the subject of which is, property within the Philippines
1. in which the defendant has or claims a lien or interest, actual or contingent, or
2. in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or
3. belonging to the defendant and has been attached

How extraterritorial service of summons effected – with leave of court

1. by personal service out of the Philippines
2. by publication with copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or
3. in any other manner the court may deem sufficient
1. e.g. service by registered mail where registry return shows actual receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)]
2. must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92 (1996)]

RULE 16 – MOTION TO DISMISS

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j) That a condition precedent for filing the claim has not been complied with.

RULE 17 – DISMISSAL OF ACTIONS

Grounds for dismissal that bar refiling

1. cause of action is barred by a prior judgment
2. cause of action is barred by the statute of limitations
3. claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished
4. claim is unenforceable under the statute of frauds

Grounds to dismiss that the court may invoke motu proprio

1. the action is barred by a prior judgment
2. the action is barred by statute of limitations
3. no jurisdiction over the subject matter
4. there is another action pending between the same parties for the same cause

RULE 18 – PRE-TRIAL

Section 1. When conducted. — After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)

It is now the plaintiff who moves ex parte that the case be set for pre-trial.

Sec. 2. Nature and purpose. — The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action.

Grounds for excused absence of a party at the pre-trial

1. valid cause is shown, or
2. a representative appears in his behalf fully authorized in writing to
1. enter into an amicable settlement
2. submit to alternative modes of dispute resolution, and
3. enter into stipulations or admissions of facts and of documents

Distinctions between pre-trial in civil and criminal cases

Civil Pre-trial

Criminal Pre-trial
Mandatory Mandatory
Presence of defendant and counsel mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned
Amicable settlement is discussed Amicable settlement is not discussed, unless the criminal case is covered by summary procedure
Agreement included in pre-trial order need not be in writing Agreements or admissions must be written and signed by the accused and counsel to be admissible against him.
Can have proffer of evidence Proffer of evidence only after trial

RULE 21 – SUBPOENA

Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.

Grounds for quashing a subpoena duces tecum

1. unreasonable and oppressive, or
2. relevancy of the object does not appear, or
3. the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production of the object
4. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served

Grounds for quashing a subpoena ad testificandum

1. the witness is not bound thereby
2. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served

RULES 23 – 29: MODES OF DISCOVERY

Kinds of depositions

1. Depositions Pending Actions
2. Depositions Before Action or Pending Appeal
3. Interrogatories to Parties
4. Admission by Adverse Party
5. Production or Inspection of Documents of Things

6. Physical and Mental Examination of Persons

The deponent may be examined regarding any matter

1. not privileged, and
2. is relevant to the subject of the pending action

After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that

1. deposition shall not be taken
2. it may be taken only at some designated place other than that stated in the notice
3. it may be taken only on written interrogatories
4. certain matters shall not be inquired into
5. the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel
6. after being sealed the deposition shall be opened only by order of the court
7. secret processes, developments, or research need not be disclosed
8. the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court
9. any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

Requisites for a court order to terminate or limit the scope and manner of taking of the deposition

1. motion or petition of any party or of the deponent
2. At any time during the taking of the deposition
3. showing that the examination is being conducted in bad faith or to unreasonably to annoy, embarrass, or oppress the deponent or party
4. issued by the court in which the action is pending or the RTC of the place where the deposition is being taken

If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending.

Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order.

In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

The deposition may be used against any party who

1. was present or represented at the taking of the deposition, or
2. who had due notice

When deposition may be used

1. At the trial or
2. upon the hearing of
1. a motion or
2. an interlocutory proceeding

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

Instances when the deposition of any witness may be used by the adverse party for any purpose

1. the deponent is a party
2. the deponent, at the time of taking the deposition, was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party

Instances when the deposition of any witness may be used by any party for any purpose

1. the witness is dead; or
2. the witness resides at a distance more than 100 kilometers from the place of trial or hearing
3. the witness is out of the Philippines, unless it appears that his absence was procured by the offeror
4. the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment
5. offeror has been unable to procure the attendance of the witness by subpoena; or
6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

7. if only part of a deposition is offered in evidence by a party

RULES 30-32: TRIAL

Order of trial – the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows

1. plaintiff shall adduce evidence in support of his complaint
2. defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint
3. third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;
4. fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
5. parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;
6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and
7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings.

Exceptions to the order of trial

1. when separate trial of any claim or issue is ordered
2. court otherwise directs for special reasons
3. as determined by the court in case of several defendants or third-party defendants, and so forth, having separate defenses who appear by different counsel

RULE 33 – DEMURRER TO EVIDENCE
Distinguish demurrer to evidence in civil and criminal cases

Demurrer to Evidence in Civil Cases

Demurrer to Evidence in Criminal Cases
Ground is: Facts and law show no right to relief ground is: Insufficient evidence
On motion On motion or motu proprio
If denied – he has right to present evidence, no prior leave of court required; If granted but reversed on appeal it is a waiver of the right to present evidence If denied and MTD was filed without leave of court – waiver of right to present evidence; If denied and MTD was filed with leave of court – the accused may adduce evidence in his defense

RULE 35 – SUMMARY JUDGMENT

Procedure in summary judgments

1. motion served at least 10 days before the time specified for the hearing
2. any opposing affidavits, depositions, or admissions must be served by the adverse party at least 3 days before the hearing
3. hearing
4. judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that
1. except as to the amount of damages, there is no genuine issue as to any material fact and
2. the moving party is entitled to a judgment as a matter of law.
3. if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court ascertains what material facts
1. exist without substantial controversy, and
2. are actually and in good faith controverted
4. Court makes an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just.
5. The facts specified as without substantial controversy shall be deemed established, and the trial shall be conducted only on the controverted facts.

Distinguish between judgment on the pleadings and summary judgment

Judgment on the Pleadings

Summary Judgment
Available only a claimant Available to both claimant and defending parties
There is no tender of issue There is no genuine issue
Judgment based on pleadings only Judgment based on pleadings, affidavits, depositions, admissions
Motion for judgment on the pleadings must be served at least 3 days prior to the scheduled hearing Motion for summary judgment must be served at least 10 days prior to the scheduled hearing

RULES 37-39 – POST JUDGMENT

Grounds for new trial — Within the period for taking an appeal when the following causes materially affects the substantial rights of the aggrieved party

1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or
2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result.

Grounds for reconsideration – Within the same period

1. the damages awarded are excessive
2. the evidence is insufficient to justify the decision or final order, or
3. the decision or final order is contrary to law

RULES 40-43 – APPEALS

There are 7 modes of appeal under the Civil Procedure

1. to the RTC from the MTC – notice of appeal (Rule 40)
2. to the CA from
1. the RTC in its original jurisdiction – notice of appeal (Rule 41)
2. the RTC in its appellate jurisdiction – petition for review (Rule 42)
3. quasi-judicial agencies – petition for review (Rule 43)
4. to the SC – petition for review on certiorari (Rule 45)
5. Annulment of Judgments or Final Orders and Resolutions (Rule 47)

Period to appeal – interrupted by MNT or MfR

1. by notice of appeal – within 15 days after notice to appellant of judgment
2. by record on appeal – within 30 days after notice to appellant of judgment

No extension of time to file MfR or MNT shall be allowed

Contents of the notice of appeal from MTC

1. the parties to the appeal
2. the judgment or final order or part thereof appealed from, and
3. the material dates showing the timeliness of the appeal.

Note that in notice appeal from MTC, the court to which the appeal is taken need not be stated. In notice of appeal from the RTC, the court to which the appeal is taken is required to be stated.

A record on appeal shall be required only in

1. in special proceedings and
2. other cases of multiple or separate appeals.

Contents of the record on appeal (same as in appeals from RTC)

1. full names of all the parties stated in the caption
2. include the judgment or final order from which the appeal is taken
3. in chronological order, copies of only such related pleadings, petitions, motions and all interlocutory orders
4. such data as will show that the appeal was perfected on time.
5. If an issue of fact is to be raised on appeal, the record on appeal shall include by reference all the related evidence, testimonial and documentary
6. Subject index when the record on appeal exceeds 20 pages

In ejectment judgments, execution is stayed only if an appeal is made to the RTC, supersedeas bond is filed and rentals continues to be paid pending appeal. Failure to pay rentals means execution ensues. The amount of supersedeas bond should be the amount of back rentals. But further appeal from the RTC to the CA, execution can no longer be stayed.

Cases that go to the SC are by petition for review on certiorari. The only instance when a case can go to the SC on notice of appeal is in criminal cases where the penalty imposed is reclusion perpetua, or life imprisonment.

From quasi-judicial agencies to the CA, the appeal is by petition for review. Appeal by itself does not stay execution of the decision. It is stayed only if the CA issues a preliminary injunction.

On pure questions of law decided by RTC in its original jurisdiction, the appeal is directly to the SC by petition for review on certiorari. Pure questions of law decided by RTC in its appellate jurisdiction, the appeal is still to the CA.

Appeal from the RTC (Rule 41)

An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f) An order of execution;

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(h) An order dismissing an action without prejudice.

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Period of ordinary appeal

1. within 15 days from notice of the judgment or final order appealed from
2. where a record on appeal is required, within 30 days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration.

No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Petition for Review from the RTC to the CA (Rule 42

Period to file and serve petition for review from RTC to CA – 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s MNT or MfR; extendible by another 15 days; further extension of 15 days only with compelling reason

A party has a fresh 15 days to file a petition for review from denial of the MFR or MNT, but only the remaining period to file a notice of appeal.

The period to file a petition for review may be extended by the appellate court, but the period to file a notice of appeal may not be extended by the court a quo.

The period to file MNT or MfR is always non-extendible. The period to file a notice of appeal is also not extendible.[Habaluyas v. Jabson, 138 SCRA 46 (1985)] However, a period to file a petition for review may be extended by 15 days, and for the most compelling reason, another 15 days.

Grounds for motu propio dismissal of the petition for review

1. patently without merit
2. prosecuted manifestly for delay, or
3. the questions raised therein are too unsubstantial to require consideration

Petitions for review, whether from quasi-judicial agencies or from the RTC

Ordinary appeals
Petitioner has fresh 15 days from notice of denial of MNT or MfR to petition for review Petitioner has only the remainder of the original 15 days from notice of denial of MNT or MfR to appeal
Period may be extended Non-extendible
Requires certificate of non-forum shopping Does not require certificate of non-forum shopping
CA may dismiss motu propio CA has to entertain the appeal

RULE 45 – APPEAL BY CERTIORARI TO THE SUPREME COURT

Findings of the CA may be reviewed by the SC when:

(a) the conclusion is a fining grounded entirely on speculations, surmises or conjectures;

(b) the inference made is manifestly mistaken, absurd, or impossible;

(c) there is grave abuse of discretioin;

(d) the judgment is based on misapprehension of facts;

(e) finding of facts are conflicting;

(f) the CA, in making the findings, went beyond the issues of the case and the same is contrary to the admissions made;

(g) CA manifestly overlooked certain relevant facts not disputed by the parties and which if properly considered would justify a different conclusion

Distinctions between Rule 45 and Rule 65

Rule 45 – Appeal by Certiorari Rule 65 – Special Civil Action for Certiorari
Only questions of law may be raised The only question that may be raised is whether or not the respondent has acted with grave abuse of discretion, or acted without or in excess of jurisdiction
Required to be filed within 60 days from notice of the decision Must be filed within 45 days from notice of the judgment or order
The parties are the appellants and the appellees as petitioners and respondents, respectively The parties are the aggrieved party and the respondent, the tribunal exercising judicial function

Requirements for petitions filed with the Supreme Court and the Court of Appeals

1. Petitioner has not commenced any other action or proceeding involving the same issues in the SC, CA or other tribunal or agency;

2. To the best of his knowledge, no such action or proceeding is pending before the SC, CA or other tribunal or agency;

3. If there is such other action or proceeding pending, he must state the status of the same;

4. If he should thereafter learn that a similar action or proceeding has been filed or is pending before the SC, etc., he undertakes to promptly inform said courts and such other tribunal or agency within 5 days therefrom.

Cases where multiple appeals are allowed:

1. Actions for recovery of property with accounting

2. Eminent domain

3. Foreclosure mortgage

RULE 48 – PRELIMINARY CONFERENCE

Section 1. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference:

(a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised;

(b) To define, simplify and clarify the issues for determination;

(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and

(d) To take up such other matters which may aid the court in the prompt disposition of the case.

GROUNDS FOR DISMISSAL OF APPEAL (RULE 50):

(a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellant’s brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and

(i) The fact that the order or judgment appealed from is not appealable.

Requisites for Motion for New Trial before the CA (Rule 53):

1. filed after appeal has been perfected and before the CA loses jurisdiction.
2. Ground is newly discovered evidence which
1. could not have been discovered prior to the trial in the court below by the exercise of due diligence and
2. is of such a character as would probably change the result.
3. accompanied by affidavits showing
1. the facts constituting the grounds therefore; and
2. the newly discovered evidence.

Original cases cognizable before the SC (Rule 56):

1. petitions for
1. certiorari
2. prohibition
3. mandamus
4. quo warranto
5. habeas corpus
6. disciplinary proceeding against members of the judiciary and attorneys, and
7. cases affecting ambassadors, other public ministers and consuls

An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Hence for any civil decision by the CA to go to the SC, it must be by pettion for review on certiorari.

Grounds for dismissal of appeal before the SC

1. Failure to take the appeal within the reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
4. Failure to comply with the reauirements regarding proof of service and contents of and the documents which should accompany the petition;
5. Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause;
6. Error in the choice or mode of appeal; and
7. The fact that the case is not appealable to the Supreme court.

PROVISIONAL REMEDIES (RULES 57-61):

1. Preliminary Attachment

Preliminary Attachment – a provisional remedy, incidental and ancillary to a principal action or proceeding, by which the property of an adverse party is taken into legal custody as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party, the granting of which lies within the sound discretion of the judge taking cognizance of the principal case upon whose existence it depends.

Purpose of attachment – to secure a contingent lien on defendant’s property until plaintiff can obtain a judgment and have such property applied to its satisfaction or to make provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction or improperly disposed of or concealed or placed beyond the reach of creditors.

Kinds of attachment

1. Preliminary attachment – given at the beginning or during the pendency of the action, or before judgment becomes final
2. Final attachment – given upon termination of the case to enforce or satisfy a final and executory judgment

Attachment generally refers to corporeal property in the possession of a party. Garnishment is a form of attachment which refers to money, stocks, credits or other ncorporeal property which belongs to the party but is in the possession or under the control of 3rd persons.

Attachment – property is attached at any time before entry of judgment. Execution – property is levied after entry of judgment.

Instances upon which attachment may issue

1. In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;
2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer or a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
3. In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;
4. In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;
5. In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or
6. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

2. Preliminary Injunction (Rule 58)

Kinds of injunction

1. Prohibitory
1. preliminary
2. final
3. Mandatory – an order which requires the performance of a particular act or acts
1. Preliminary
2. final

Preliminary Injunction – an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction.

Grounds for issuance of preliminary injunction

1. the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;
2. the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
3. a party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

Requisites for preliminary injunction or temporary restraining order

1. verified application showing facts entitling the applicant to the relief demanded
2. bond conditioned on paying the party enjoined all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto
3. GR: hearing. Exception: court may issue TRO if plaintiff may suffer grave or irreparable injury

When prior or contemporaneous service of summons is not required

1. summons could not be served personally or by substituted service despite diligent efforts
2. the adverse party is a resident of the Philippines temporarily absent
3. the adverse party is a nonresident of the Philippines

Stages of injunction

1. 72 hour TRO
1. if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury
2. issued by executive judge of a multiple-sala court or the presiding judge of a single-sala court
3. issued ex parte, without hearing
4. thereafter must

1) serve summons and other documents

2) conduct summary hearing to determine whether the TRO shall be extended to 20 days until the application for preliminary injunction can be heard

1. 20-day TRO
1. If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice
2. If application is included in initiatory pleading

1) Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

2) Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

1. issued with summary hearing (to determine whether the applicant will suffer great or irreparable injury) within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle
2. Within 20-day period court must

1) order said party or person to show cause why the injunction should not be granted

2) determine whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order.

1. including the original 72 hours, total effectivity of TRO shall

1) not exceed 20 days, if issued by a RTC or MTC

2) not exceed 60 days, if issued by the CA or a member thereof

3) until futher orders, if issued by the SC

1. TRO is automatically vacated upon expiration of the period and without granting of preliminary injunction
2. effectivity is not extendible without need of any judicial declaration to that effect
3. no court shall have authority to extend or renew the same on the same ground for which it was issued.
4. Preliminary injunction
1. Hearing and prior notice to the party sought to be enjoined
2. If application is included in initiatory pleading

1) Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

2) Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

1. Applicant posts a bond
2. Final injunction

Note that a bond is required only in preliminary injunctions, but is not required in TROs.

After lapse of the 20 day TRO, the court can still grant a preliminary injunction.

Note that irreparable injury is always a requisite in TROs. But in the 72 hour TRO, grave injustice must also be shown. In the 20 day TRO, the ground is great or irreparable injury.

Paras v. Roura, 163 SCRA 1 (1988) Without a preliminary injunction, a TRO issued by the CA expires without necessity of court action.

* Note that TROs issued by the SC are effected until further orders.

Grounds for objection to, or for motion of dissolution of, injunction or restraining order

1. upon showing of insufficiency of the application
2. other grounds upon affidavit of the party or person enjoined
3. appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counterbond
4. insufficiency of the bond
5. insufficiency of the surety or sureties

1. Receivership (Rule 59)

Receiver – an indifferent person between the parties to a case, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it

Purpose of receivership – to preserve, administer, or dispose of property in litigation, pendente lite

Instances when receivership may be granted

1. the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to administer and preserve it
2. in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

General powers of receiver

1. to bring and defend, in such capacity, actions in his own name
2. to take and keep possession of the property in controversy
3. to receive rents
4. to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver
5. to compound for and compromise the same
6. to make transfer
7. to pay outstanding debts
8. to divide the money and other property that shall remain among the persons legally entitled to receive the same
9. to do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him.

1. 2. Replevin (Rule 60)

A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided

1. Support Pendente Lite (Rule 61)

Provisions of the Family Code:

Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a)

Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and

(5) Legitimate brothers and sisters, whether of full or half-blood

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence.

Executive Privilege 101

2009-07-28T21:00:00.000-07:00

Q. Is Executive Order 464 still alive?
A. The Supreme Court in Senate v. Ermita said: “Sections 2(b) and 3 of Executive Order No. 464 … are declared VOID. Sections 1 and 2(a) are, however, VALID.”

Q. What does the voided Sections 3 say?
A. It says: “All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.”

Q. Who are the officials in Section 2(b) referred to in Section 3.
A. They are:
“Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
“Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
“Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
“Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
“Such other officers as may be determined by the President.”

Q. Are there any officials whom the President may prevent from testifying?
A. If the hearing is an inquiry in the exercise of congressional “oversight function” under Article VI, Section 22, Department Secretaries may not appear without the prior consent of the President. This is repeated in Section 1 of EO 464 which the Supreme Court declared valid.
If the hearing is “in aid of legislation” under Article VI, Section 21 of the Constitution, anyone, except the President and Justices of the Supreme Court, may be summoned.

Q. If the President cannot use EO 464 to block the testimony of officials enumerated in Section 2(b) above, can she still prevent testimony?
A. Yes, by claiming that the testimony being sought is covered by “executive privilege.”

Q. What is “executive privilege”?
A. It is the constitutionally recognized right of the President to withhold certain types of information from Congress, the courts or from the public.

Q. What types of information can be covered by executive privilege?
A. Section 2(a) of EO 464, upheld as valid by the Supreme Court, enumerates the following which are taken from earlier decisions:
1. Conversations and correspondence between the President and the public official covered by this executive order
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged;
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements;
4. Discussion in closed-door Cabinet meetings;
5. Matters affecting national security and public order.

Q. Who may claim executive privilege?
A. Only the President or a high official who, after consultation with the President, is authorized by her to claim the privilege.

Q. Must every claim of executive privilege based on the above enumeration be honored?
A. No. The Court in Senate v. Ermita said that in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. Thus it is not for one claiming executive privilege “to unilaterally determine that a duly-issued Subpoena should be totally disregarded.”

Q. Who then determines whether the claimed privilege should be honored?
A. The Court. Thus, for instance, when the Nixon administration claimed privilege for certain tapes about the Watergate break-in, the Court, after looking at the claimed privilege behind closed doors, held that the tapes were not covered by privilege and should be released.
For this reason, our Court also said that “Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.” The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible.

Q. What was the opening sentence of the Court in its decision on EO 464?
A. “A transparent government is one of the hallmarks of a truly republican state.”

Q. The President has formed a legal team to study what to do with the appeal of the Bishops to abandon EO 464. What should they say?
A. They should say, “Madam President, read Senate v. Ermita and obey it and thereby begin the process of your salvation.”

In re: Executive Privilege

2009-07-28T20:52:00.000-07:00

Senate vs. Ermita , GR 169777, April 20, 2006

FACTS:
This is a petition for certiorari and prohibition proffer that the President has abused power by issuing E.O. 464 “Ensuring Observance of the Principles of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and for Other Purposes”. Petitioners pray for its declaration as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
The Committee of the Senate issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project, others on the issues of massive election fraud in the Philippine elections, wire tapping, and the role of military in the so-called “Gloriagate Scandal”.
Said officials were not able to attend due to lack of consent from the President as provided by E.O. 464, Section 3 which requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress.

ISSUE:
Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress, valid and constitutional?

RULING:
No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the executive privilege. The doctrine of executive privilege is premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.

The Seniors

2009-06-28T22:48:00.000-07:00

Let's give this one to my fellow Seniors. This MUST be the final Acquaintance Party we are in. For that reason, this post is specially for us. I'm glad to see the guys around minus Da Col, he deserves a penalty of destierro which he already served last Saturday when he absented himself. The rest of the guys though are around (hmm most of the guys)--Da Engineers Eteng and my favorite classmate Engr. T, Justice Colao, Julius, et. al. The White Ladies looked great--Sweet, Karen, Styf, Carina, Geline...and yes the Kolorum girls Tisha, Mimi, Cris et al. This one's for everyone!

Best Performers

2009-06-28T19:41:00.000-07:00

Still from the Acquaintance Party, here are my picks for the best performances of the night. From the Katrina H impersonators to the Hayden-wannabes, to the Pussycat Daw(s), to Michael Jackson, and the Boys Over Flowers. And oh, yes, Santino (whose place in the legal profession is secured).
Aren't you glad the future of the legal profession is in their hands?

UM College of Law Acquaintance Party 2009

2009-06-28T19:04:00.000-07:00

This wet, wild, wacky party happened last Saturday 27 June 2009 at a resort called Gardena Fresca somewhere in Matina. I could have even lost my way if I had not picked up Sweet and Karen who told me where the place is. I was thinking Ulas. I would have been really, really lost. Here go the snapshots courtesy of Ronel since I could not do two things at the same time--emceeing and paparazzi-ing. It was great, one that probably was more fun than the previous ones.

Publish Post

Beer just flowed, food was adequate. The profs were game. The students were just into it. Me? I had fun, really. But it was almost a four-hour job that's just worth it. Here are the photos guys, when I get to be in the mood, I'll do my usual grilling commentaries.

Drawing First Blood

2009-03-07T08:57:00.000-08:00

Hello fellas,

This is but a week-old blog but I sure am glad with the response. This inspires me more to explore Law School life's most promising misadventures. I will be there every wrong step of the way. Blogging our misfortunes. Ridiculing our oft-times embarassing moments. For sure, this blog is not for the thin-skinned or the faint-hearted. This blog is for those dreaming to become future members of the Blogging Lawyers Organization Of Davao (BLOOD) which we hope to register with the SEC in two to three years or whoever gets there first.

While we are wrestling our wits now to become future members of that bloody society, this blogger encourages you to not only follow the blogs here but also follow the threads and join us in the comments section where the stories of our lives are documented.

We will gladly welcome your thoughts.

And yes, your devil-may-care views, your what-the-heck-this-is-a-free-f_ucking-country insights.

Write on, fellas. This serves as our Blood Compact.

Closing the book

2009-03-06T17:53:00.000-08:00

Alright, this whole Prom thing has to end.

To cap this madness, let's give it up to the mad mind who masterminded this all.

You got to be privileged being able to test the wits out of people. I love doing it. Gives me the chance to know who was early out of bed when God showered wits in this world. For sure some came ahead and ran away with a lot of loot. These were a bunchof smart people, I must say. Too tough to call. But not everyone is created equal afterall, which I guess defies the biblical passage that all men are created equal. One thing sure, it is always gratifying to know what someone has to say.

Most men like what's between your legs, baby. But I like what's between your ears more.

This time, the Men

2009-03-06T08:43:00.000-08:00

Talk about vanity. I have splashed the photos of the lovely ladies here. Vanity though is not the women's monopoly. The men, too, play vanity fair.

The men of this Law School come in different shapes and sizes too (depends on what you are measuring). My apologies to those I have not photographed. I still think, as an amateur photographer, women are better subjects than men. This time though, let's give it to the men. There are those who looked and smelled Cosmopolitan. Some are GQ quality. Some are just plain busy to create and I must admit I belong to this category and that is why I spared myself from this post.

You be the judge, ladies.

Private Lessons

2009-03-05T06:23:00.000-08:00

Wednesday night while hitting some balls with the bratpack at the driving range, Adolf found someone he could not find in the Prom last Friday--somebody good at both the shaft and the balls. Alright, I gave Adolf a few tips on how to grip his stick and rip those balls. Swing it like a waiter, dewd.

Then he went on hitting a few. Like anyone who had swung a golf club for the first time, Adolf either hit or miss the ball. Then came his teaching pro to the rescue.

Silently, Adolf and his newfound lady 'teaching pro' went on with their private lessons. She must be good because he was starting to hit it square.

Since Adolf was making progress, the rest of the pack pretended not to notice. I entertained the Korean owner so he too would not notice the teaching lessons going on elsewhere with some 250-yarders as I licked the bucket clean. Then came bye bye time.

"Come back, I'll teach you more," said the lady 'pro' all too sweetly. Adolf answered with a smile.

Traces of..."Come back, Jack. I'll teach you how to whack."

Adolf was not about ready for a wham-bam-thank-you-maam, but if there is something common between student and teacher that night. They both wore red.

Sweet.

The Prom, one more time

2009-03-04T16:31:00.000-08:00

Due to insistent public demand, I am bringing back the Prom blog in here with some photos published by request. Those who wanted to comment may just fire away. This is a free country.

Styf here asked her controversial photo published, so she has deemed to have waived her right to question this publication.Tisha has got some more here, and Cris too. Of course, we cannot accommodate everyone's request, but we're glad you did visit this blog and scribbled some comments.

De minimus non curat lex

2009-03-04T07:05:00.000-08:00

In our Torts class, the humor-mill-of-a-professor explained to us the idea that the law does not provide remedies for slights -- and gave us a Latin phrase de minimus non curat lex.

I must have remembered that Latin phrase Wednesday night while the Law School bratpack went on a golfing misadventure at a Korean-owned driving range near Southpoint School.

I brought my trusty driver and 8 and 5 irons for variety. Sweet brought a 9 and a 7, and no, not please...a putter. I forgot to tell her we are heading off to the driving range. That's excuseable. Da Colonel came dressed to the occasion. If the Shepherds of the game in the old Royal and Ancient Golf Club of St. Andrews were awake , they would have risen from their grave and make this man an Honorary member with all the rights and privileges. Who goes to play golf in long sleeved shirt neatly tucked in jeans? Well, Da Colonel got away with it again.

He hit square a few balls which was impressive for a neophyte. Then came the shot that drew all the attention in the range. He took my 8 iron and blasted away. The ball dropped inches away from the tee. The club? It flew 25 yards away.

Da Colonel didn't even have to shout, "Fore!"

Then again, who cares? A newcomer gets away with so much.

De minimus non curat lex.

Joke Time!

2009-03-04T06:44:00.000-08:00

Here are ACTUAL excerpts of court proceedings from around the US. This article recently appeared in the Salt Lake Tribune.

Was that the SAME nose you broke as a child?

Now, doctor, isnt it true that when a person dies in his sleep, in most cases he just passes quietly away and doesn't know anything about it until the next morning?

Q. What happened then?A. He told me, he says, "I have to kill you because you can identify me."Q. Did he kill you ?

Was it YOU or your brother that was killed in the war?

The youngest son, the 20-year-old, how old is he?

Were you alone... or by yourself?

Do you have children, or anything of that kind?

Q. I show you exhibit 3 and ask you if you recognize that picture.A. Yes, that's me.Q Were you present when that picture was taken?Were you present in court this morning when you were sworn in?

Q. Now, Mrs. Johnson, how was your first marriage terminated?A. By death.Q. And by whose death was it terminated?

Q. Do you know how far pregnant you are now?A. I'll be 3 months on November 8.Q Apparently, then, the date of conception was August 8?A. Yes.Q. What were you doing at that time?

Q . Mrs. Jones, do you believe you are emotionally stable?A . I used to be.Q. How many times have you committed suicide?

So you were gone until you returned?

Q She had three children, right?A Yes.Q How many were boys?A None.Q Were there girls?

You don't know what it was, and you didn't know what it looked like, but can you describe it?

Q. You say that the stairs went down to the basement?A. Yes.Q And these stairs, did they go up also?

Q. Have you lived in this town all your life?A. Not yet.

A Texas attorney, realizing he was on the verge of unleashing a stupid question, interrupted himself and said, "Your Honor, I'd like to strike the next question."Q. Do you recall approximately the time that you examined the body of Mr. Edington at the Rose Chapel?A. It was in the evening. The autopsy started about 8:30 pm.Q. And Mr. Edington was dead at the time, is that correct?A. No, he was sitting on the table wondering why I was doing an autopsy!

Musica ex machina (Music of the machine)

2009-03-03T15:10:00.000-08:00

Looks can be deceiving.

I took a ride with my classmate Julius' sporty Honda Civic Tuesday night for dinner with the Law School bratpack (Adolf, Sweet, Karen G, Da Colonel, and me). The thought of a Bicol palate feast made me salivate right off the first gear. Since the ride will take a quarter of an hour, PNP's newest Colonel doodled his fingers on his car stereo. The selection was vast, huh. Earth, Wind and Fire, Beegees, ABBA, Beatles, Jon Bon Jovi. Impressive. Then he finally landed on his pick. Like a dj, he plucked his choice and played it.

You know what that was?

Rey Valera, dewds.

Yup. On a sporty Honda Civic with 17-inch chrome rims yet. You can imagine the blend of Rey Valera's sharp voice and the booming baritone of the car's Sebring exhaust pipe each time he steps on the gas.

What a man!

Oops, let's not risk running into trouble with a Police Senior Superintendent (PSS), or risk being barred from ever riding his wheels.

Da Colonel is not a bad singer afterall.

His favorite?

Rivermaya.

At least, he doesn't sing Rey Valera.

Peace, Colonel.

(Turncoat)

From my Prom Entries: My Top Picks

2009-03-02T18:29:00.000-08:00

This is moot and academic now. Alright, Sweet ran away with the choice for Lady of the Night. Adolf couldn't escape winning the much coveted Man of the Night sash. The tandem was handpicked by an infallible judge in Atty. Santos Torrena. No opposition here. No objections. No protests.

Adolf and Sweet probably had those sashes proudly pinned on their walls now. Or maybe laminated. Encased in glass. An achievement comparable to a Pulitzer or a Nobel Prize. I am sorry for those who missed out on the award. Karen was just missed out by the judges. Jigs should have protested the last minute entry of Adolf. But that's how the cookie crumbles. I would have gone for my good ole buddy Engr. Tambagan but he hied off early in Cinderella fashion before the clock struck 9.

Other than the two awards, I got my own top picks for the best photographed ladies of the night. Here they are.

More Transformers

2009-03-02T10:15:00.000-08:00

Just when you think you had enough, you come out wrong. Scanning through more of my files, I unravelled more skeletons inside the closet. Hehehe. That's an exaggeration. I'll settle with the proverbial snakes from Pandora's box. I saw dragon on one's back. Bunny ears. And, oh yes. In this hall, you can hardly distinguish the waiters from the guests. The key here is to keep seated so that no one calls you "waiter." Kidding aside, the men generally look dashing in their suits. Looking every inch cosmopolitan. Y'know what I mean?

Here's more from my Hall of Shame...err Defame, err infame. Lame, dame. Whatever.

Meet the Transformers

2009-03-02T08:44:00.000-08:00

Let me call them "The Transformers."

They are the beautiful ladies I saw Friday night. I thought it was first acquaintance, but then I realized this was the UM Law School Prom night. The heck. These are my classmates. I hardly recognized them. There are some categories I can make out of this.

From reality to beauty. From simple to sophisticated. From the shell to the ramp.

There were those who transformed rather differently. The men included.

From friendster to hustler. From would-be lawyer to would-be rapist (you know who? hahahaha). From shy to shameless. From UM to FHM.

I realize now.

A Prom is like the PGA Tour.

Anything can happen.

Oh, how they danced

2009-03-02T08:07:00.000-08:00

I should've been in this mad group of danceaholics masquerading as law students (or is it the other way around? whatever), good thing a foot injury not of an arthritic kind saved me from this madness. My supposed partner Jo backed off at the last minute as she thought my dancing skills are suspect and are but product of a well-concocted hype. Her suspicion paid off handsome dividends (but cost her a handsome partner...eherrrm). Seriously though, the final performance of an otherwise uneventful prom saved all the efforts from going to naught. The dance took off anti-climactic, wasting precious minutes for some last minute costume changes but it was worth the anxious moments and loss of income. Well, they just made sure there will be no gown malfunctions or boob slips of the Superbowl kind. If you ask me to describe it rather aptly, it was what you may call a choreographed mayhem, a rhythmic chaos, and an artistic sabotage committed by a band (more than four-legged malefactors). The coup d'grace is a brainchild of Adolf and Sweet with some conspirators in the person of a newly promoted Police Colonel and a court interpreter. Enough of the Few Good Men.

I doff my hat to you guys. Great job. Bravo!

(Hey, where's my hat?)