ATENEO CENTRAL BAR OPERATIONS 2019 JORGE ALFONSO C. MELO Bar Review Coordinator LEILA S, LIM ‘ar Review Secretariat ATENEO CENTRAL BAR OPERATIONS PATRICK EDWARD BALISONG Chairman KATRINA Y. COSCOLLUELA, JONATHAN VICTOR NOEL CZARINA CHER CUERPO GENICA THERESE ENDALUZ JOHN STEPHEN PANGILINAN BENIGNO ENCISO ‘Administration Commitee Heads Academies Commitee Heads Hote Operations Commitee Heads JUDGE JAIME FORTUNATO A. CARINGAL, ATTY. JORGE ALFONSO C. MELO ATTY. STEPHEN GEORGE S.D. AQUINO ‘ATTY. RONALD C. CHUA ATTY, EUGENIO H, VILLAREAL REMEDIAL LAW Faculy Advisors MICHELLE KRISTINE ANTE JERRY SANTOS JR MEGAN MARCOS ROSEL RICA VALLE BIANA ISABEL SORIANO MA. REGINE CALLUENG MAYUMI GLOR MATSUMURA JENNISE ANN SEE PETER PAOLO DIM Ill REMEDIAL LAW Subject Heads EUNICE A. MALAYO FRANCES CHRISTINE F. SAYSON ‘Cental Bar Operations Academics Understudies JAAMES ERWIN VELASCO GIA MORDENO ICA SALAZAR ‘ANDREA DE VERA GERARD ANDRE BARRON DEBBIE YRREVERRE TOPHER BALAGTAS JOSE DA SILVA NICOLE VELANDRES ABIGAYLE RECIO. (CHRISTIAN CANDELARIA GABBI SUNGCAD HAZEL ORTEGA LEIGH NUFUAR ERVIN HILADOMARIA ANGELICA TORIO MYREEN RAGINIO PATRICIA DOLATRE ALA PANDAPATAN REYNALEIGH DELOS REYES HAZEL ORTEGA MIKKI DOROJA (CHOOGEE GUERRERO JAY-EM CUNTAPAY REMEDIAL LAW Volunteers MARK SY ENRIQUE LOPEZ It WENDELL LAXAMANA, ‘CHLOE NUNEZATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW 1. GENERAL PRINCIPLES: IN REMEDIAL LAW Q: What is remedial law? ‘A: Itis a branch of aw that prescribes the methods of enforcing rights and obligations created by substantive law. (Bustos vs. Judge Lucero, G.R. No. L-2068, 1948) Compare substantive and remedial law. Pecan) Sieur Creates, defines and | Prescribes the regulates rights and methods of enforcing duties concerning life, | rights and obligations liberty or property | created by substantive which when violated | law. It provides a ives rise to a cause of | procedural system for action. obtaining redress. for the invasion of rights and violations of duties. It also prescribes rules as to how suits are filed, tied and decided upon by the courts. (Bustos. vs. Lucero, GR. No, L-2068, 1948) Q: What are the limitations on the rule-making power of the Supreme Court under the Constitution? A a. The ules shall provide a simplified and inexpensive procedure for the speedy disposition of cases; b. The rules shall be uniform for courts of the same grade; and c. The rules shall not diminish, increase, or modify substantive rights (Put. Const. art Vull, § 6.) : What is the doctrine of hierarchy of courts? ‘A: The judicial system follows a ladderized scheme which in essence requires the lower courts to initially decide on a case before it is considered by a higher court. A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts (Santiago v. Vasquez, G.R. Nos. 99289.90, 1993). AA direct invocation of the Supreme Cour's original jurisdiction to issue this writ should be allowed only when there are special and important reasons, clearly and specifically set out in the petition. (Republic v. Caguioa, G.R. No. 174385, 2013) Q: What is the exhaustion of administrative remedies? A: The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation. (Addition Hills v. Megaworld, G.R. No. 175039, 2012 citing Republic v. Lacap, G.R. No. 158253, 2007) : What is the doctrine of judicial hierarchy? A: The judicial hierarchy of courts generally applies to cases involving warring factual allegations. For this reason, Itigants are required to repair to the trial courts at the first instance to determine the truth or falsity of these contending allegations on the basis of the evidence of the parties. Cases which depend on disputed facts for decision cannot be brought immediately before appellate courts as they are not triers of facts, Be that as it may, its not an iron clad rule. A strict, application of the rule of hierarchy of courts is not necessary when the cases brought before the appellate courts do not involve factual but legal questions. (Mangaliag v. Catubig-Pastoral, GR. No. 143951,2005) @: What is the doctrine of judicial non- interference? ‘A: The doctrine of judicial stability or non- interference in the regular orders or judgments of a co-equal court is an elementary principle in the administration of justice: no court can interfere by injunction with the judgments or orders of another ‘court of concurrent jurisdiction having the power to grant the relief sought by the injunction. The rationale for the rule Is founded on the concept of jurisdiction: a court that acquires jurisdiction over PAGE 1 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW | order of some lower the case and renders judgment therein has jurisdiction over its judgment, to the exclusion of all other coordinate courts, for its execution and aver all its incidents, and to contro, in furtherance of justice, the conduct of ministerial officers acting in connection with this judgment. (Cabillv. Balindong, A.M. No. RTJ-10-2225, 2011). Q: Distinguish between general and special jurisdiction. e ———— court to adjudicate all | the court's jurisdiction Saesrueayee | iy oe ooiapg etree | seatentosera cenedenes | semiencers| plenary powers of the | may be provided by | ase Wonence toa | Peorertn: controversies which | confined to particular | Sy CsI tenor | cnn cee seealsTomnt cena SoMa Na esa oaieayat | ue ealemons gas eneaee | scieerearas motel bye eae ee ee eee fatedteton f ae court to tke heal | autor? onfoned Sere ese teens ocean srtted for justia [anwar and sinter twee | etre ones | ar‘, sancons | wc neve a ses aioe) mea at suse ese eae iS caeetorom by eppee! or wt of es aap Scien eta tome apes Cala oeaae @: Distinguish between exclusive and concurrent jurisdiction. Err CONS It is the power or] it is the power authority of the court | conferred upon tohear and determine | different courts, cases to the exclusion | whether of the same ofall other courts | or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories Q: What are the other classifications of jurisdiction? A a. Exclusive Original - The power of the court to take judicial cognizance of a case instituted for Judicial action for the first time under the conditions provided by law, and to the exclusion of all other courts b. Delegated - The grant of authority to inferior courts to hear and determine cadastral and land registration cases under certain conditions . Territorial ~ It is the power and authority to exercise its power within its territorial region (Tan, Civil Procedure Book I: A Guide for the Bench and the Bar, 2017, pp. 99-104) hat is the doctrine of hierarchy of courts? The judicial system follows a ladderized scheme which in essence requires the lower courts to initially decide on a case before it is considered by a higher court. A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts (Santiago v. Vasquez, G.R. Nos. 99289-90, 1993) ‘A direct invocation of the Supreme Court's original jurisdiction to issue this writ should be allowed only when there are special and important reasons, clearly and specifically set out in the petition. (Republic v. Caguioa, G.R. No. 174385, 2013) PAGE 2 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW Q: What Is the doctrine of adherence of jurisdiction? ‘A: Once jurisdiction has attached, it cannot be ‘ousted by subsequent happenings or events, although the event is of such character which would have prevented jurisdiction from attaching in the first instance. Once jurisdiction has been acquired by the court, it retains that jurisdiction until it finally disposes of the case (Baritua v. Mercader, G.R. No. 136048, 2001). @ How is jurisdiction over the plaintiff acquired? ‘A: Jurisdiction over the person of the plaintiff is acquired by the filing of the initiatory pleading, such as a complaint (De Joya v. Marquez, G.R. No. 162416, 2006). Q: How is jurisdiction over the subject matter acquired? ‘A; Jurisdiction of the Court over the subject matter is conferred by law and determined by the allegations in the complaint (Ursua vs. RP, GR No. 178193, 2012) @: How is jurisdiction over the issues acquired? A: Itis acquired or conferred by the pleadings (De Joya v. Marquez, G.R. No. 162416, 2006). Q: How is jurisdiction over the res or property acquired? ‘A: It is acquired by the seizure of the thing under legal process or it may result from the institution of legal proceedings (De Joya v. Marquez, G.R. No. 162416, 2006). Q: Compare venue and jurisdiction. A eeu Wes Authority to hear and | Place where the case determine a case is to be heard or tried ‘A matter —_of | A matter of procedural substantive law law Establishes a relation | Establishes a relation between the court and | between plaintiff and the subject matter | defendant, or petitioner and respondent Fixed by law and] May be conferred by cannot be conferred | the act or agreement by the parties of the parties (e.g. a contractual stipulation can contain the following: "In case of dispute arising. from this contract, a party shall fle a suit exclusively with the Regional Trial Court of Pasig City’) (Nocum v. Tan, G.R. No. 145022, 2005) Lack of jurisdiction | Not a ground for a over the subject matter | motu proprio dismissal js a ground fora motu | (except in cases proprio dismissal subject to Summary Procedure) Cannot be waived —_| May be waived only in cases. In criminal cases, venue is jurisdictional (Nocum v. Tan, G.R. No. 145022, 2008, Dacoycoy v. IAC, G.R. No. 74854, 1991) Q: What happens when the venue is improperly laid? A; In civil proceedings, venue is procedural, not jurisdictional, and it may be waived by the defendant if not seasonably raised elther in a motion to dismiss or in the answer (BP! Family Savings Bank, Inc. v. Yujuico, G.R. No. 175796, 2018) PAGE 3 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW @: Does exclusive venue stipulation apply where the complaint assails the validity of the written instrument? ‘A: No. In cases where the complaint assails only the terms, conditions, and/or coverage of a written instrument and not its validity, the exclusive venue stipulation contained therein shall still be binding (on the parties, and thus, the complaint may be properly dismissed on the ground of improper venue. However, if the complaint assailis the validity of the written instrument itself, the parties should not be bound by the exclusive venue stipulation contained therein. Itwould be inherently inconsistent for a complaint of this nature to recognize the exclusive venue stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained (Briones v. CA, G.R. No, 204444, 2018) Q: What are some actions incapable of pecuniary estimation? A 1. Actions for specific performance; 2. Actions for support which will require the determination of the civil status; 3. The right to support ofthe plaintiff; 4, Those for the annulment of decisions of lower courts; 5, Those for the rescission or reformation of contracts; 6. Interpretation of a contractual stipulation (Heirs of Bautista v. Lindo, G.R. No. 108232, 2014). Q: X filed a complaint to enforce his right granted by law to recover the lot subject of free patent. Which court has jurisdiction over the ‘complaint? ‘A: RTC. The action is for specific performance; hence, incapable of pecuniary estimation and is cognizable by the RTC. Although the selling price is less than PHP 20,000, the RTC still has jurisdiction because the repurchase of the lots is, only incidental to the exercise of the right to redeem, The reconveyance of the title to petitioners is not the principal or main relief or remedy sought (Heirs of Bautista v. Lindo G.R. No. 208232, 2014), : What is the nature of an action to recover deficiency on the extrajudicial foreclosure? AA; Itis a personal action for it does not affect tile to oF possession of real property, or any interest therein (BPI Savings Bank v. Spouses Benedicto, GR. No. 175796, 2018). Q: M filed before the DENR two Townsite Sales Applications. Upon his death, his applications ‘were transferred to his heirs, X. N executed a deed of transfer of rights, transferring his hereditary share in the property covered by TSA No. 123 to Sps Y and Z. Sometime thereafter, an OCT was issued in favor of X. X filed before the RTC a Complaint or Recovery of Possession of Real Property against Y and Z. Xallege that they are the true owners of the parcel of land that Y and Z's TSA encroach upon the subject property. RTC ruled in favor of X, but CA reversed the decision on the ground of lack of jurisdiction. Did RTC acquire jurisdiction over the complaint? ‘A: No. The Court held thatin an action for recovery of possession, the assessed value of the property ‘sought to be recovered determines the court's jurisdiction. In this case, for the RTC to exercise jurisdiction, the assessed value of the subject property must exceed P20,000.00. Since X failed to allege in their Complaint the assessed value of the subject property, the CA correctly dismissed the Complaint as petitioners failed to establish that the RTC had jurisdiction over it. In fact, since the assessed value of the property was not alleged, i cannot be determined which trial court had original and exclusive jurisdiction over the case. In an action to recover, the property must be identified. The plaintiff, therefore, is duty-bound to clearly identify the land sought to be recovered, in accordance with the title on which he anchors his Tight of ownership. In this case, X failed to identify the property they seek to recover as they failed to describe the location, the area, as well as the boundaries thereof. (Heirs of Julao v Alejandro, GR. No, 176020, September 29, 2014) Which is the basis in determining which court has jurisdiction over a complaint for accion publiciana? It depends on the assessed value of the property sought to be recovered (Supapo v. Sps. de Jesus, G.R. No. 198356, 2015). : The case is for the declaration of the nullity of a contract of loan and its accompanying continuing surety agreement, and the real estate and chattel mortgages. What is the nature of the action? Where should it be filed? PAGE 4 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW AA: It is a personal action; under Section 2, Rule 4 of the Rules of Court, the venue of a personal action Is the place where the plaintiff or any of the principal plaintifs resides, or where the defendant ‘or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintif, for which reason the action is considered a TRANSITORY fone. Unlike a real action, where it has to be ‘commenced and tried in the proper court having jurisdiction over the area wherein the real property involved, or a portion thereof is situated, which explains why the action is also refered to as. a LOCAL action (BPI v. Hontanosas, G.R. No. 18761325, 2014) How is jurisdiction of the court determined? A General Rule: The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. (Narra Nicke! Mining v. Redmont, G.R. No. 195580, 2014) Exception: Unless such statute provides for its retroactive application, as where it is a curative legislation. (Atlas Fertilizer v. Navarro, G.R. No. 72074, 1987) ‘The courts acquire jurisdiction over a case only upon payment of the prescribed docket fee. (Pacific Redhouse Corp v. EIB Securities, G.R. No, 184036, 2010) When several courts have concurrent jurisdiction, the first court which acquires jurisdiction retains it to the exclusion of the others. (Nenaria v. Veluz, GAR. No. L-4683, 1952) @: Which cases are covered by Barangay Conciliation? ‘A: All disputes are subject to Barangay conciliation and prior recourse thereto is a pre-condition before filing a complaint in court or any government offices, except in the following disputes: 1. Where one party is the goverment, or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee, land the dispute relates to the performance of his official functions; 3. Where the dispute involves real properties located in different cities and municipalities, unless the parties thereto agree to submit their difference to amicable settlement by an appropriate Lupon; 4, Any complaint by or against corporations, partnerships or juridical entities, since only individuals shall be parties to Barangay conciliation proceedings either as. ‘complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules); 5. Disputes involving parties who actually reside inbarangays of different cities or municipalities, ‘except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon; 6. Offenses for which the law prescribes a maximum penalty of imprisonment exceeding tone (1) year or a fine over five thousand pesos (P5,000.00); 7. Offenses where there is no private offended party: 8. Disputes where urgent legal action is necessary to prevent injustice from being ‘committed or further continued, specifically the following: ‘a. Criminal cases where accused is under police custody or detention (See Sec. 412 (b)(1), Revised Katarungang Pambarangay Law); . Petitions for habeas corpus by @ person illegally deprived of his rightful custody over another or a person illegally deprived of his liberty or one acting in his behalf; . Actions coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property and support during the pendency of the action; and 4. Actions which may be barred by the Statute of Limitations, 9. Any class of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice; 10.Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) (Secs. 46 & 47, RA. 6657); 11.Labor disputes or controversies arising from employer-employee relations (Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended, which grants original and exclusive jurisdiction over conciliation and mediation of disputes, grievances or problems to certain offices of the Department of Labor and Employment); PAGE 5 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW 12.Actions to annul judgment upon a compromise, which may be filed directly in court (See Sanchez vs. Tupaz, 158 SCRA 459). (Guidelines on Katarungang Pambarangay Conciliation Procedure, Supreme Court Administrative Circular No, 14-93, 1993) : What cases are covered by small claims? Which court has jurisdiction over these cases? A: Actions before the MeTCs, MTCCs, MTCs and MTCTs for payment of money where the value of the claim does not exceed the jurisdictional ‘amount of these court under RA No 76991 (Php 400,000.00 for the MeTCs and Php 300,000.00 for the MTCCs, MTCs and MCTCs), exclusive of interest and costs. (OCA Circular No 45-2019, effective on 1 April 2019) Q: What cases are covered by Summary Procedure? Which court has jurisdiction over these cases? ‘A: Actions in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: A.Givil Cases: 4. All cases of forcible entry and unlawful etainer, iespective of the amount of damages or unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall not exceed twenty thousand pesos (P20,000.00) ‘All other cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed one hundred thousand pesos (P100,000.00) or, two hundred thousand pesos (P200,000.00) in Metropolitan Manila, exclusive of interest and costs. . Criminal Cases: Violations of traffic laws, rules and regulations; Violations of the rental law; Violations of municipal or city ordinances; All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exoeed ten thousand pesos (P10,000.00). This Rule shall not apply to a civil case where the plaintf’s cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. (Revised Rule on Summary Procedure, Resolution of the Court En Bane 1991, 1991) PAGE 6 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW ill, JURISDICTION OF COURTS NOTE: The Jurisdiction tables below are taken from Feria’, Justice Jose Y. and Atty, Maria Concepcion S. Noche. Civil Procedure Annotated. Vol. 1. 2013 Ed. Quezon City: Central Book Supply, Inc., 2013, 665- 700, updated with jurisprudence and new laws. 4. SUPREME COURT (Feria and Noche, pp.665-668) (a) ORIGINAL JURISDICTION i, Original and Exclusive | Potitions for the issuance of writs of certiorar, prohibition and mandamus against: Court of Appeals. Commission on Elections. Commission on Audit. Sandiganbayan Court of Tax Appeals. PaeNe Original and Concurrent 41. With the CA, 1, Pelitions for the issuance of writs of certiorari, prohibition and ‘mandamus against: ‘a. NLRC. [However, the petitions should be filed with the CA based on hierarchy of courts; otherwise, they shall be dismissed.) b. CSC. c. Quasi-Judicial Agencies. [However, the petitions should be fled with the CA] d. RTC and lower cours. | | 2. Petitions for the issuance of a writ of kalikasan. 2. With the CA, SB and 1. Petition for writ of amparo. | RrTc | 2. Petition for writ of habeas data. 3. With the CA and RTC | 1. Petitions for habeas corpus and quo warranto. | 2. Petitions for the issuance of writs of certiorari, prohibition and ‘mandamus against lower courts or bodies. 3. Petitions for the issuance of writ of continuing mandamus in environmental cases. 4. With the RTC Actions affecting ambassadors, other public ministers and consuls. OP eee RTL lace) PAGE 7 OF 152ATENEO CENTRAL BAR OPERATIONS, REMEDIAL LAW 1. Appeal by Notice of | From the RTC or the SB in all criminal cases where the penalty imposed Appeal is reclusion perpetua or higher, and those involving other offenses which, | although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that | giving rise to the more serious offense, regardless of whether the accused | | are charged principals, accomplices or accessories, or whether they have | | been tried jointly or separately. By appeal, the SC reviews the questions of law and of fact decided by the court a quo. 2. Appeal by Petition for | Appeals from the: Review on Certiorari 4. Court of Appeals 2. Sandiganbayan - on pure questions of law, except in cases where the penalty imposed is reclusion perpetua, life imprisonment or death 3. Court of Tax Appeals. 4, Regional Trial Courts - exercising original jurisdiction in the following | a. Ifno question of fact is involved and the cases involves: ()——Constitutionality or validity of any treaty, international executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation in question; (ii) Legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; or (iil) Jurisdiction of lower courts isin issue. (Note: If, in addition to constitutional, tax, or jurisdictional questions, the cases mentioned in (), (i) and (il) above also involve questions | of fact or mixed questions of fact and law, the aggrieved party shall | appeal tothe CA; and the final judgment or decision ofthe later may be reviewed, revised, reversed, modified or affirmed by the SC on writ | of certiorari) | ___P-Allcases in which only errors of questions of law are involved 3. Special Civil Action of _| Decision, order or ruling of Certiorari within 30 days | 1. Commission on Elections. 2. Commission on Audit. 2. COURT OF APPEALS (Feria and Noche, pp. 669-672) ORR aN Seaton i. Original and Exclusive Actions for annulment of judgments of the RTC on the grounds of extrinsic fraud and lack of jurisdiction, PAGE 8 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW inal and Concurrent 1.With the SC 2. With the SC, SB, and RTC 1. Pelitions for the issuance of wits of certiorari, prohibition and ‘mandamus against: a, NLRC. [However, the petitions should be fled with the CA; otherwise, they shall be dismissed.) b. OSC. c. QuasiJudicial Agencies. (However, the petitions should be fled with the CA] 4d. RTC and lower courts. 2. Pelitions for the issuance of a writ of kalikasan, 41. Petition for wrt of amparo. 2. Petition for wrt of habeas data, 3. With the SC and RTC OL Ge eee oleae) 1. Patitions for habeas corpus and quo warranto. 2. Petitions for the issuance of writs of certiorari, prohibition and ‘mandamus against lower courts or bodies. 3. Petitions for the issuance of writ of continuing mandamus in environmental cases, i. Exclusive Appellate 1. Ordinary Appeal by Notice of 2. Appeal or Record on Appeal ‘Appeals from: | 1. RTC in the exercise of its original jurisdiction, exceptin all cases where only questions of law are raised or involved, which are appeatable to | the SC by petiion for review on certiorar\ in accordance with Rule 45. | 2. RTC on constitutional and jurisdictional questions which involve | questions of fact. 3. Family Cours 3, Appeal by Petition for Review ‘An appeal may be taken to the CA whether the appeal involves questions of fact, mixed questions of fact and law, or questions of law, in the following cases: Regular 1. Appeals from RTC in the exercise of its appellate jurisdiction. PAGE 9 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW ‘Special | 1. Appeals from CSC. 2. Appeals from Quasi-Judicial Agencies: Securities and Exchange Commission | Office of the President | Land Registration Authority Social Security Commission Civil and Aeronautics Board Intellectual Property Office National Electrification Administration Energy Regulatory Commission National Telecommunications Commission Department of Agrarian Reform under RA 6657, Government Service Insurance System | Employees Service Insurance System Insurance Commission | Philippine Atomic Energy Commission Board of Investments Construction Industry Arbitration Commission Voluntary Arbitrators authorized by law Ombudsman, in administrative disciplinary cases National Commission on Indigenous Peoples. prepesgrresse>gaegD From the judgments or final orders or resolutions of the CA, the aggrieved | party may appeal by certiorari to the SC as provided in Rule 45. Judgments and final orders of the CTA en banc are now appealable to the SC through a petition for review under Rule 45, pursuant to RA 9282. 3. SANDIGANBAYAN (as amended by Section 4, R.A. 10660, promulgated April 16, 2015) (a) EXCLUSIVE ORIGIN/ 1. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt, Practices Act, Republic Act No. 1379, otherwise known as An Act Declaring Forfeiture in favor of the State any Property Found to have been Uniawfully Acquired by any Public Officer or Employee and Providing for the Proceedings therefor, and Chapter Il, Section 2, Title VI, Book I! of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: PAGE 10 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW a. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification ‘Act of 1989 (Republic Act No. 678), specifically including Provincial governors, vice-governors, members of the sanggunlang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads: mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; ii, Officials of the diplomatic service occupying the position of consul and higher; iv. Philippine army and airforce colonels, naval captains, an all officers of higher rank and those holding the rank of senior superintendent and higher; vi. City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor, Presidents, directors or vustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. lote: Those specifically mentioned herein (a-g) need not be with a salary grade of 27 or higher to be Under the jurisdiction of the Sandiganbayan. (Inding v. Sanciganbayan, G.R. No. 143047, 2004) b. Members of Congress and officials thereof classified as Grade 27 and higher under the ‘Compensation and Position Classification Act of 1989; ©. Members ofthe judiciary without prejudice to the provisions of the Constitution; 4d. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; and All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. Note: In cases where none of the accused are occupying positions corresponding to Salary Grade '27° or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit tial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Bg. 123, as amended. Ir offenses or 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. fense is in relation to the office when: ‘a. The offense is intimately connected with the office of the offender and perpetrated while he was in the performance of his offical functions b. The crime cannot exist without the office c. The office is a constituent element of the crime as defined in the statute aracter of being “in relation to his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the Sandiganbayan. land criminal cases filed pursuant to and in connection with Executive Order Nos. 1,2, 14 and 14-A, issued in 1986. Note: Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil ability shall at all times be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, PAGE 11 OF 152ATENEO CENTRAL BAR OPERATIONS 20 REMEDIAL LAW | the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and | No right to reserve the fling of such civil action separately from the criminal action shall be recognized. | Note: Where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, andthe criminal case is hereafter fled withthe Sandiganbayan or the appropriate cout, sald civ acon shal be transferred tothe Sandiganbayan or the aporopite cour. 26 the case may be, for consolation and joint determination withthe criminal action, etherwse the separate ciation shal be | deemed abandoned 4. Petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar | nature, including quo warranto, arising or that may arise in cases filed or which may be filed under | Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Note that the jurisdiction over these petitions | shall not be exclusive of the Supreme Court. (b) EXCLUSIVE APPELLATE The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or | orders of Regional Trial Courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as provided in R.A. 10860. Note: The procedure prescribed in Batas Pambansa Big. 129, as well as the implementing rules that the ‘Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986, | 4, COURT OF TAX APPEALS. Os nr Ga meU CRD oan am | 1. Decisions from the COMMISSIONER OF INTERNAL REVENUE | in cases involving disputed assessments, refunds of intemal revenue taxes, fees or other | charges, penalties in relation thereto, or other matters arising under the National Intemal | Revenue Code (NIRC) or other laws administered by the Bureau of Internal Revenue (BIR) 2. Inaction by the COMMISSIONER INTERNAL REVENUE | in cases involving disputed assessments, refunds of intemal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by the BIR, where the NIRC provides a specific period of action, in which case the inaction shall be deemed a denial. |s. Decisions, orders or resolutions of REGIONAL TRIAL COURTS: | pee oca tox cases enignaly declded or resoWved by them inthe exercise of thelr orginal and eppalae jection | | 4. Decisions of the COMMISSIONER OF CUSTOMS [POSS cases molung lab fr cstom ates, ees o her money charges, sue, detention PAGE 12 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW release of property affected, fines, forfeitures or other penalties in relation thereto, or other ‘matters arising under the Customs Law or other laws administered by the Bureau of Customs. 5, Decisions of the CENTRAL BOARD OF ASSESSMENT APPEALS in the exercise of its appellate jurisdiction ‘over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals. 6. Decisions of the SECRETARY OF FINANCE fon customs cases elevated to him/her automatically for review from decisions of the Commissioner of Customs which are adverse to the Government under Section 2315 of the Tariff and Customs Code. 7. Decisions of the SECRETARY OF TRADE AND INDUSTRY in the case of non-agricultural product, commodity or article; and 8. Decisions of the SECRETARY OF AGRICULTURE. in the case of agricultural product, commodity or article involving dumping and countervailing duties under Sections 301 and 302, respectively, of the Tariff and Customs Code and safeguard ‘measures under the RA 8800, where either party may appeal the decision to impose or not to impose said duties. COM} 1. Exclusive Appellate Criminal cases arising from viotations of the: Jurisdiction 1. National Internal Revenue Code. 2. Tariff and Customs Code. | 3. Other laws administered by the BIR or the Bureau of Customs, Provided, however, that offenses or felonies mentioned in this paragraph where the principal amount of taxes and fees, exclusive of charges and penalties, claimed in less than P1M or where there is no specified amount claimed shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate. ‘Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall be af all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed to necessarily carry with it the fling of the civil action, and no right to reserve the fling of such civil action separately from the criminal action will be recognized, 2. Exclusive Appellate 1. Over appeals from the judgments, resolutions or orders of the RTC Jurisdiction in tax cases originally decided by them, in their respective territorial jurisdiction. 2. Over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided the MeTC, MTC and MCTC in their respective jurisdiction, PAGE 13 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW (c) TAX COLLECTION CASES c 41. Exclusive Original Jurisdiction 2. Exclusive Appellate Jurisdi 5 involving final and executory assessment for tax charges and penalties: Provided, however, that collection cases where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is less than P1M shall be tried by the proper MTC, MeTC and RTC. In tax collection cases: 1. Over appeals from the judgments, resolutions or orders of the RTC | in tax collection cases originally decided by them, in their respective | territorial jurisdiction | 2. Over petions for review of judgments, resolutions or orders of the | RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided the MeTC, MTC and MCTC in their respective | jurisdiction, 5, REGIONAL TRIAL COURTS Orono i, Original and Exclusive PAGE 14 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW 4. CIVIL Cases 1. Chul actions in which the subject of ligation is incapable of pecuniary estimation 2. 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 P20K, or P5OK if in Metro Manila, except actions forcible entry and unlawful detainer which are cognizable by the MeTC, MTC, MCTC. 3, Actions in admiralty and maritime jurisdiction where the demand or claim exceeds P300K, or P400K ifin Metro Manila. 4, Matters of probate, both testate and intestate, where the gross value of the estate exceeds P300K, or P400K if in Metro Manila, 5. Cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. 6. Actions involving the contract of marriage and marital relations. 7. C\vil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Special Agrarian Courts as now provided by law. 8. Other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy, exceeds P300k, or P400k if in Metro Manila, IMPORTANT: If the claim for damages is the main cause of action, the ‘amount thereof shall be considered in determining the jurisdiction of the court. 2. CRIMINAL Cases Criminal cases not within the exclusive jurisdiction of any court, tribunal (or body, such as the following: 1. Penalty provided by law exceeds 6 years imprisonment, irrespective of fine. 2. Those not falling under the original jurisdiction of the Sandiganbayan Where none of the principal accused are occupying positions corresponding to salary grade ourts as now provided by law., except actions for Manila.try and unlawful detainer which are co their equivalent and the penalty provided by law exceeds 6 years imprisonment, itrespective of fine. 3. Only penalty provided by law is a fine exceeding P4K. 4, Over criminal cases specifically conferred by special laws: a. Libel and writen defamation. Administrative Order No. 104- 96, 1996 designated the RTC as a special court having jurisdiction in libel cases. b. Violations of the Comprehensive Dangerous Drugs Act of 2002. Regardless of its penalty, the jurisdiction falls within the Regional Trial Court designated as Drugs Court (People v. Morales, G.R. No. 126623, 1997; RA. No. 9165, ‘Sec. 90). But if the case involves a minor, the jurisdiction lies with the Family Courts. (R.A. 8369) ©. Violations of intellectual property rights. (A.M. No. 03-03- 03-S¢, 2003) d. Election offenses PAGE 15 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW fe. Violations of the Anti-Violence against Women and their Children Act of 2004 (specifically, those involving violence against women and children as defined under Section 5). f. Violations of the Comprehensive Agrarian Reform Law. N.B.: Family Courts have exclusive original jurisdiction over criminal cases where one or more of the accused is below 18 years old, or when one or more of the victims is a minor at the time of the ‘commission of the offense. However, i the victim has already died, such as in homicide cases, the regular courts can have jurisdiction. (People v Dela Torre-Yadao, G.R. Nos. 162144-54). 3, OTHER Cases 1. Actions for recognition and enforcement of an arbitration agreement of for vacation, setting aside, correction or modification of an arbitral award, and any application with a court for arbitration assistance and supervision. 2. Actions for determination of just compensation to land under the CARL. 3, R.A, 10660 (promulgated April 16, 2015): The REGIONAL TRIAL COURT shall have exclusive original jurisdiction where the information involving civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A (1986): a. Does not allege any damage to the government or any bribery; b. Alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not ‘exceeding One milion pesos (P1,000,000.00). Note: Subject to the rules promulgated by the Supreme Court, the | ceases falling under the jurisdiction of the Regional Trial Court under Section 4 of R.A. 10660 shall be tried in a judicial region other than where the offical holds office, ii, Original and Concurrent 1. With the Sc Actions affecting ambassadors and other public ministers and consuls. 2. With the SC and CA, 1. Issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction which may be enforced in any part oftheir respective regions. 2, Pelition for the issuance of writ of continuing mandamus in environmental cases. 3. With the SC, CA and SB 1. Petition for writ of amparo. 2. Petition for writ of habeas data. PAGE 16 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW Claims not exceeding P100K.. This is applicable if subject of the action is incapable of pecuniary estimation; otherwise, jurisdiction is, concurrent with the MeTC. [ 4, with the insurance | Commissioner ORG aTeRR Tc laon) Cases decided by the MeTC, MTC, MTCC and MCTC in their respective territorial Juris Ora ce nc eae ‘The SC may designate certain branches of the RTC to handle exclusively criminal cases, juvenile and ‘domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasiudicial bodies and agencies, and/or such other special cases as the SC may determine in the interest of a speedy and efficient administration of justice. 6. FAMILY COURTS: (Feria and Noche, pp. 690-692) Coe omen et meu) PAGE 17 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW [ 1. Criminal cases where one or more of the accused is 1Sandle exclusively criminal cases, juvenile and | | domestic relations cases, agrarian cases, urban land reform cases which do nat fll under the jurisdiction of quastjudicial bodies and agencies and ascertain any civil lablty which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to the Child and Youth Welfare Code (PD 603), 2. Petitions for quardianship, custody of children, habeas corpus in relation tothe later. | 3. Petitions for adoption of children and revocation thereof. 4. Complaints for annulment of mariage, declaration of nulity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and | agreements, and petitions for dissolution of conjugal partnership or gain. 5. Peiitions for support andior acknowledgment. | 6. Summary judicial proceedings brought under the provisions ofthe Family Code of the Philippines (E.0 | No, 203). 7. Peiilions for declaration of staus of children as abandoned, dependent or neglected children; petitions | for voluntary or involuntary commitment of children; the suspension, termination, of restoration of parental | authority and other cases cognizable under the Child and Youth Welfare Code (PD 603), Authorizing the | Minsey of Socal Series and Development to Take Protective Custody of Chi Prostitutes and | Sexually Exploited Children, and for Other Purposes (E.O. 56), and other related laws. 8. Peiltions for constitution ofthe family home. 9. Cases against minors cognizable under the Comprehensive Dangerous Drugs Act of 2006. 10, Violations of Special Protection of Children against Child Abuse, Exploitation and Discrimination Act (RA 7610), as amended by RA 7658 and RA 9231 11, Cases of violence against: ‘a. Women — which are acts of gender-based violence that result, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical ‘abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom of movement; and ». Children which include the commission of al forms of abuse, neglect, exploitation, violence and discrimination and all other conditions prejudicial to their development. [ran act constitutes a criminal offense, the accused or batterer shal be subject to criminal proceedings | and the corresponding penalties. If any question involving any of the above matters should arise as an Incident in any case pending in the regular courts, said incident shall be determined in that court. 7. MUNICIPAL TRIAL COURTS and MeTC, MTC and MCTC (Feria and Noche, pp.685-689) OOM moet) |. Original and Exclusive PAGE 18 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW 4. Civil cases 41. Civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate or amount of demand does NOT exceed P300K, or PA0OK if in Metro Manila, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged. However, interest, damages of whatever kind, attomey's fees, tigation expenses, and costs shall be included in the determination of the fling fees. 2, Admiralty and maritime cases where the demand or claim does NOT exceed P300K, or P400K fin Metro Marita Where there are several claims or causes of action between the same cr different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action irrespective of whether the causes of action arase out of the same or different transactions. 3. Forcible entry and unlawful detainer regardless of value of property involved, with jurisdiction to determine the issue of ownership only to resolve the issue of possession. 4. Civil actions which involve title to, or possession of, REAL property, cor any interest therein where the assessed value of the property or interest therein does NOT exceed P20K, or P5OK if in Metro Manila, exclusive of interest, damages of whatever kind, allorey's fees, litigation expenses, and costs. In cases of land not declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots. 5. Inclusion and exclusion of voters. PAGE 19 OF 152ATENEO CENTRAL BAR OPERATIONS 2019 REMEDIAL LAW 2. Criminal cases 1. Over al violations of ety or municipal ordinances commited witin their respeive terol urtediions: 2, Overall offenses purishable with imprlsonment of not more than @ Years respecte ofthe amount of na (piston comeccionl) 2. Over all offenses punishable wih ne only amounting to not more | tnan P4,000.0 without th penalty of imprisonment. | 4. Over all offenses (except violations of RA 3019 and Arts. 210 to 212 of RPC) committed by public officers and employees in relation to their office, indudlng those employed in GOCCS and by privat individuals | charged as coincipal, accomplices or accessories, purishable with | | imprisonment of ot more than 8 years or where none of the accused | | holds a postion dassiied as Grade 27" and higher | 5. In all cases of damage to property through criminal negligence, regardless of ther penales and the ci lls asing therefor 6: In cases of summary procedure for violations of .P. 22 Bouncing Checks Law). (A M. No. 00-17-01-SC) 7, Summary procedure in cases of trafic violations, violations of the rental law, volatons of cy or municipal ordinances, voleions of BP 22, anal cher offenses where the penalty does not exceed 6 months imprisonment andlor P1000 fie, respective of ther penalties o cl | abies arising therefiom, and in offenses involving damage to | propery though criminal negigence where the imposable fie doos not Exceed P10,000 8. duisdlion over cases whore the imposable penalty is destro considering that n the hierarchy of penalties under Atte 71 of the Revised Penal Code, destioro follows arresto mayor which involves imprisonment. (People v. Eduart, G.R. No, 88232, 1990) Municipal Trial Courts have no jurisdiction over cases which by provision of special law are to be heard before the Regional Trial Courts or the Sandiganbayan, even ifthe maximum penalty prescribed by such special law is less than 6 years. Included in such exceptions are election offenses, libel or written defamation, and violation of Section 39 of the Dangerous Drugs Act of 1972 (R.A. No, 6425). OR seo U Rca Cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots where the value of which does NOT exceed P100K, such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. These cases are assigned and not automatically delegated. (OR ae eae) PAGE 20 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW In the absence of all the RTC Judges in a province or city 1. Hear and decide petitions for wrt of habeas corpus. 2. Hear and decide applications for bail in criminal cases. ORT Gaal 1. CIVIL cases 1. Forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. 2. Allother cases, except probate proceedings, where the total amount of the plaintiff's claim does not exceed one hundred thousand pesos (P 100,000) or two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of interest and costs. (A.M. No. 02-11-09-SC) NOTE: Under the Sec. 11 of the 2016 Revised Rules of Procedure for ‘Small Claims Cases, ifthe case does not fall under such Rule, but falls under summaty or regular procedure, the case shall not be dismissed. Instead, the case shall be re-docketed under the appropriate procedure, and returned to the court where it was assigned, subject to payment of any deficiency in the applicable regular rate of filing fees. If | a case is filed under the regular or summary procedure, but actually | falls under the Rule for Small Claims cases, the case shall be referred | to the Executive Judge for appropriate assignment. | 1. Traffic violations. 2. Rental law violations. 3. Violations of city or municipal ordinances. 4. Violations of B.P. 22 (Bouncing Cheoks Law). 5. Allother cases where penalty does NOT exceed 6 months and/or fine of P1K. 2. CRIMINAL cases PAGE 21 Or 19ATENEO CENTRAL BAR OPERATIONS 2078 REMEDIAL LAW Q: What are ordinary civil actions? A; Itis a formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or by the law (Rule 1, Sec. 3(a) as enunciated by Sps. Ochoa v. Chinabank, G.R. No. 192877, 2011). Itis governed by ordinary rules. Q: What is a real action? A: Areal action affects ttle to or possession of real property or an interest therein (Rule 4, Sec. 1) Q: What is a personal action? ‘A: A personal action is one brought for the recovery of personal property, for the enforcement ‘of some contract or recovery of damages for its breach, or for the recovery of damages for the commission of an injury to the person or property (Go v. UCPB, G.R. No. 156187, 2004). Q: What are actions in rem, in personam and quasi in rem? A 4. In Rem (DSC-ATI-JDNR-JBWW) a. A proceeding to determine the state or gondition of a thing (Lopez v. Director of Lands, G.R. No. L-22136, 1924). b, Directed against the thing itself (Alba v. CA, GR. No. 164041, 2005). ©. Jurisdiction over the person of the defendant is not required (Biaco v. Carpo-Morales, G.R. No. 161417, 2007) 4. Judgment is binding on the whole world (Ang Lam V. Rosilosa, G.R. No. L-3595, 1950). ‘An action in rem is one where the action is directed against the thing itself as in land registration and cadastral proceedings (Domagas v Jensen, G.R. No. 158407, 2008). 2. In Personam (IRPD-APP-JDR-JBPIS!) a. An action to impose a responsibility or liability upon a person directly (Domagas v Jensen, G.R. No, 158407, 2008). b. Directed against 2 particular person. (Domagas v Jensen, G.R. No. 158407, 2008). ©. Jurisdiction over the person of the defendant is required (Domagas v Jensen, GR. No. 158407, 2005). 4d. Judgment is binding only upon the parties impleaded or their successors-in-interest (Munoz v. Yabut, G.R. No. 142676, 2011). ‘An action in personam is one which has for its ‘object a judgment against the person. It is a proceeding to enforce personal rights or obligations (Domagas v. Jensen, GR. No. 158407, 2005) In an action in personam, personal service of ‘summons, within the forum is essential to the ‘acquisition of jurisdiction aver the person of the defendant, who does not voluntarily submit himself to the authority of the court. In other words, ‘summons by publication cannot confer upon the court jurisdiction over said defendant (Citizen's Surety v. Melencio-Herrera, G.R. No. L-32170, 1971). 3. Quasi in Rem (SIDPOL-APP-JDNR, JRAJPP) 2. Itis a proceeding, the purpose of which is to subject the interest of a named defendant over 2 particular property to an obligation or fen Durdening it b. Directed against particular persons. . Jurisdicton over the person of the defendants ‘not required as long as jurisdiction over the res is acquired. 4. Judgment is binding upon the particular persons. A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. it deals with the status or ownership of a particular property (Domagas v. Jensen, supra) Q: What is an independent civil action? ‘A: In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of and simultaneously with the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover, damages twice for the same act or omission charged in the criminal action (Rule 111, Sec. 3). PAGE 22 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Reguisites (PIO) 1. May be brought by the offended party; 2. Shall proceed independently of criminal action; and 3. Shall require only a preponderance of evidence (Rule 111, Sec. 3) Note: An offended party cannot recover damages. twice for the same act or omission charged in the criminal action (Rule 111, See. 3) B. CAUSE OF ACTION Q: What is a cause of action? ‘A: A cause of action is an act or omission of one party in violation ofthe legal rights of another (Rule 2, Sec. 2)) Q: What is a joinder of causes of action? ‘A: A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions: 1. The party joining the causes of action shall comply with the rules on joinder of parties; 2. The joinder shall not include special civil actions or actions govemed by special rules; 3. Where the causes of action are between the ‘same parties but pertain to different venues or Jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and 4, Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of Jurisdiction (Rule 2, Section 5). Q: What is a misjoinder of causes of action? ‘A: When there is a misjoinder of causes of action, the erroneously joined cause of action can be severed and proceeded with separately upon ‘motion by a party or upon the court's own initiative. (Rule 2, Sec. 6) Q: Compare right of action and cause of action. A: SSS ae ‘A delict or wrongful act | A remedial right or right ‘oF omission committed | to relief granted by law by the defendant in | to a party to institute an Violation of the primary | action against a person rights of the plaintif. | who has committed a delict or wrong against himiher; its the right of a person to bring and prosecute an action to obtain a judgment, the elements of which are as follows: 4. There must haa cause of action; 2. Compliance with all the conditions. precedents; and 3, Action must be instituted by the proper party. Reason for the action (e.g. breach of contract) Remedy or means afforded or the consequent relief (e.0. fling a civil action for recovery of damages on the ground of breach of __ ___|eontacy. | Not affected by | May be lost or waived affirmative defenses | (e.g. ‘through (fraud, prescription, | prescription ifoa estoppel etc.). complaint is not filed within the prescriptive period.) (iano, 2074, p. 43). C. PARTIES TO CIVIL ACTIONS Q: Who is a real party-in-interest? ‘A: Areal party-in-interest is one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (Rule 3, Sec. 2). Q: What are the exceptions to the general rule that one who is not privy to a contract may not, bring an action to enforce it? ‘A: The exceptions are: 1. Stipulation pour atrui - If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and PAGE 23 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW deliberately conferred a favor upon a third person (Civil Code, Art. 1311). 2. Those who are not principally or subsidiarily obligated in a contract ma show the detriment that could result from it i.e., when contracts entered into in fraud of creditors may be rescinded when the creditors cannot collect the claims due them (Civil Code, Art. 1318). Q: Spouses X are the registered owners of a parcel of land. Y and Z are alleged to be the ‘owners of Company A, which owns the lots adjacent to the property of Spouses X. Company A claimed that Spouses X were constructing a fence without a valid permit, and the construction would destroy the wall of its building. To gather evidence, Company A setup and installed two video surveillance cameras facing the property of Spouses X. Y andZ, as a defense, raised that they are not the owners of Company A and were wrongfully impleaded in this case. Are Y and 2's contention correct? ‘A: No. The fact that Y and Z are not the registered ‘owners of the building does not automatically mean that they did not cause the installation ofthe video surveillance cameras. Although Company A has a juridical personality separate and distinct from its stockholders, records show that itis a family-owned corporation managed by the family of Y and Z. In these instances, the personalities of ‘Company A and Y and Z seem to merge. As such, Y and Z are merely using the corporate ficion of ‘Company A as.a shield to protect themselves from the suit. ¥ and Z are, thus, proper parties to the suit. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013). Q: Who is an indispensable party? ‘A: Areal party-in-interest without whom NO FINAL DETERMINATION can be had of an action. They are those with such an interest in the controversy that a final adjudication cannot be made, in his absence, without injuring or affecting that interest (Rule 3, Sec. 7) Q: What is the effect of the non-joinder of spensable parties? ‘A: The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present (Arcelona v. CA, GR. No. 102900, 1997). However, itis not a ground for automatic dismissal ‘of complaint; hence, the court should order an amendment and impleading of the indispensable parties. The case would be dismissed if there is, refusal to comply with the directive of the court for the joinder of an indispensable party to the case (Contreras vs. Rovila Water Supply, G.R. No. 168979, 2013). Q: What are the two tests to determine an \dispensable party? 1. Whether a relief be afforded to the plaintiff without the presence of the other party; and 2. Whether the case can be decided on its merits without prejudicing the rights of the other party (Republic v. Sandiganbayan, GR. No. 152154, 2003). : Who is a necessary party? necessary party isnot an indispensable party. He is ought to be joined as a party if COMPLETE RELIEF is to be accorded as to those already parties; he should be joined whenever possible. Q: Is substitution of a party allowed? : Yes. In case of death of a litigant during the pendency of an action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs (Rule 3, Sec. 16) Q: Are alternative defendants allowed? Yes. Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative, although a right to relief against one may be inconsistent with 4 right of relief against the other (Rule 3, Sec. 13). When is a party misjoined? party is MISJOINED when he is made a party to the action although he should not be impleaded (Rule 3, Section 11) Q: What is the remedy in case of misjoinder? PAGE 24 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW : In contract, in misjoinder of cause of action, the ‘court can order severance (Rule 3, Section 11). Q: What is the effect of the death of a party upon a pending action? ‘A: The death of the client extinguishes the attomey-client relationship and divests a counsel of his authority to represent the client; neither does he become the counsel of the heirs of the deceased unless said heirs engage his services. Whenever a party toa pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death ofthe fact thereof, and to give the name and address of his legal representative or representatives. Failure of ‘counsel to comply with this duty shall be a ground {for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor ‘or administrator and the court may appoint a guardian ad litem for the minor heirs (Rule 3, Sec. 16). @ Does unincorporated association have to sue? ‘A: No, because an unincorporated association cannot be considered a juridical person or an entity authorized by law, thus it cannot be a party to a civil action (Association of Flood Victims vs. COMELEC, G.R. No. 2037755, 2014), ENUE OF ACTIONS. Q: Can the parties stipulate on the venue? AR: Yes. Parties may stipulate on the venue, as long as itis agreed in wring before the fing ofthe action on the exclusive venus thereof (Rule 4, Sec. 4b), Mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place (Sps. Lantin v. Hon. Lantion, G.R. No, 160053, 1992) Examples of qualifying or restrictive words: “exclusively” and "waiving for this purpose any other venue," “shall only" preceding the designation of venue, "to the exclusion of the other courts," or words of similar import (Auction in Malinta, Inc. v. Luyaben, G.R. No. 173979, 2007) Q: What is the venue for real actions? A: Actions affecting tile to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area WHEREIN THE REAL PROPERTY INVOLVED, or a portion thereof, IS SITUATED. (Rule 4, Sec. 1(1)) Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city WHEREIN THE REAL PROPERTY involved, or a portion thereof, IS SITUATED. (Rule 4, Sec. 1(2)) Real actions, as so opposed to personal actions, are those which affect the title to or possession of real property. Where a contrary claim to ‘ownership is made by an adverse party, and where the relief prayed for cannot be granted without the court deciding on the merits, the issue of ownership and ttle, more specifically, as to who, between the contending parties, would have a better right to the property, the case can only be but a real action (Guinabon v. Lain, G.R. No. 142523, 2001). Where a complaint is entitled as one for specific performance but nonetheless prays for the issuance of a deed of sale for a parcel of land, its primary objective and nature is one to recover the parcel of land itself and, thus, is deemed a real action. In such a case, the action must be filed in the proper court where the property is located (Gochan v. Gochan, G.R. No. 146089, 2001). ‘An action to recover the deficiency after extrajudicial foreclosure of a real property ‘mortgage is a personal action because it does not affect tile to or possession of real property, or any interest therein (BPI Family v. Yujuico, GR. 175796, 2015), : What is the venue for personal actions? A: All other actions may be commenced and tried WHERE PLAINTIFF RESIDED, OR WHERE PAGE 25 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW DEFENDANT RESIDES or any of the principal defendants resides, or in the case of a non- resident defendant WHEREVER HE MAY BE FOUND, at the election of the plaintitf (Rule 4, Sec. 2. When there is more than one plaintiff in a personal action case, the residences of the principal parties ‘should be the basis for determining proper venue. Eliminate the qualifying term “principal” [in the Rules} and the purpose of the Rule would be defeated where a nominal or formal party is impleaded in the action since the latter would not have the degree of interest in the subject of the action which would warrant and entail the desirably active participation expected of litigants, in a case (Marcos-Araneta v. Cam, GR No. 154096, 2008). E. RULES ON PLEADINGS 4. Kinds of Pleadit 19s Q: What are the kinds of pleadings? : (CART) Complaint Counterclaim Gross-claim Answer Reply (Rul 6) Third (fourth, ete. -party complaint) ooeenap (Q: What is a complaint? ‘A: A complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintif and defendant must, be stated in the complaint (Rule 6, Sec. 3) Q: What is an answer? ‘A: An answer is a pleading in which a defending party sets forth his defenses. It may be an answer to a complaint, a counterclaim or a cross-claim. (Rule 6, Sec. 4) Q: What is a counterclaim? A: A counterclaim is any claim, which a defending parly may have against an opposing party. ‘When a defendant files @ counterclaim against the plaintif, he becomes the plaintiff in the counterclaim and the original plaintiff becomes the defendant ‘A. counterclaim may be COMPULSORY or PERMISSIVE. (Rule 6, Sec. 6) Q: What is a compulsory counterclaim? A: Elements: (ATAC) 1. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party's claim; 2. It does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction; 3, The court has jurisdiction over the amount and nature of the case; and 4, Itmust be gognizable by the regular courts of justice (Yulienco v. CA). Q: May a compulsory counterclaim prosper after dismissal of complaint for lack of jurisdiction? : Yes. If the compulsory counterclaim is by reason of an unfounded suit then it may prosper ‘even with the main complaint having been dismissed (Padila vs Globe Asiatique, G.R. No. 207376, 2014), Q: When should compulsory counterclaim be led? A: At the time for fling of answer. A claim for recovery of the excess in the bid price vis-a-vis the ‘amount due should be interposed as a compulsory counterclaim in an action for recovery of 2 deficiency filed by the mortgagee against the debtor-mortgagor (MBTC vs CPR Promotions and Marketing, G.R. No. 200567, 2015). : What is a permissive counterclaim? ‘A counterclaim is permissive if any of the elements of a compulsory counterclaim is absent (see above). The most commonly treated feature of a permissive counterctaim is its absence of a logical connection with the subject matter of the complaint. (International Container Terminal Services Inc. v. CA, G.R. No, 90530, 1992). A permissive counterclaim does not necessarily arise out of or is not directly connected with the subject matter ofthe first claim; it can be fled as a separate case altogether. There is a need to pay for docket fees since itis seen as a different action altogether with defendants becoming “plaintiffs” in respect of such counterclaim (Reillo v. San Jose, GR. No. 166393, 2009). PAGE 26 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What is a cross-claim? A: Across-claimis any claim by one party against ‘a corparty arising out of the transaction or ‘occurrence that is the subject matter either of the original action or of a counterctaim therein. ‘Such cross-claim may include a claim that the arly 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 (Rule 6, Sec. 8). Requirements: (CAP) 4. Aclaim by one party against a co-party; 2. Must arise out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim; and 3. The cross-claimant is prejudiced by the claim against him by the opposing party. (Rule 6, Sec. 8) Q: What is a reply? AA: Itisa 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 fle such reply, all the new matters alleged in the answer are deemed controverted or denied. No admission follows from the failure to fle a reply (Rule 6, Sec. 10) @: What is a third (fourth- complaint? ‘A: 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. (Rule 6, Sec. 11) » etc) party 2. Parts of a Pleading Q: What are the parts of a pleading? A ‘a. Caption and body - The caption sets forth the following: 1. The name of the court; 2. The title of the action; and 3. The docket number, if assigned. ‘The body sets forth the following 1. Its designation; 2. The allegation of the party's claims and defenses; 3. The reliefs prayed for; and 4. The date of the pleading, (Rule 7) What is the significance of a lawyer's signature? A: His signature constitutes a certification by him that (a) he has read the pleading, (b) that to the best of his knowledge and belief, there is good {ground to support it, and (c) that itis notinterposed for delay (Rule 7, Sec. 3). What is the effect of an unsigned pleading? It has NO LEGAL EFFECT. The court is authorized, however, to allow the pleader to correct the deficiency if the pleader shows, to the satisfaction of the court, that the failure to sign the pleading was due to the mere inadvertence and not to delay the proceedings (Rule 7, Sec. 3). What are the actions of counsel that are inary measures? 1. When he deliberately files an unsigned pleading 2. When he signs a pleading In violation of the Rules 3. When he alleges in the pleading scandalous. or indecent matter, or 4, When he fails to promptly report to the court a change of his address (Rule 7, Sec. 3) What is verification? Itis an affidavit declaring that: (a) the affianthas read the pleading, and (b) the allegations therein are true and correct of his personal knowledge and/or based on authentic records (Rule 7, Sec. 4 ‘as amended by AM No. 00-2-10). Generally, pleadings need not be verified EXCEPT only when the law or a rule requires it (Rule 7, Sec. 4) Q: What is the significance of verification? A: it is meant to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct, not merely speculative (Sarmiento v. Zaratan, G.R. No. 167471, 2007), Q: What is Forum Shopping? PAGE 27 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: It consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule (on the same related causes and/or to grant the same or substantially the same relief. It exists when the elements of itis pendentia are present or where a final judgment in one case will amount to res judicata in another. (Heirs of Sotto vs. Palicte, G.R. No. 159691, 2014) Q: What is the nature of a certification of non- forum shopping? A: It is a mandatory requirement and must be attached to the initiatory pleading. Failure to do so constitutes a cause for dismissal without prejudice (Rule 7, Sec. 5) Q: How is the certification against forum shopping executed? ‘A: It is executed by the PLAINTIFF or the PRINCIPAL PARTY under oath and must be signed by the party himselfiherself and not merely by his attorney (Rule 7, Sec. 5). Q: What are the undertakings of a party under the certification against forum shopping? A 4. Thatthe party has net commenced any action or fled any claim involving the same issues in any court, tribunal, or quastudicial agency ‘and, to the best of his/her knowledge, no such other action or claim is pending therein; 2. That if there is such other pending action or claim, a complete statement of the present status thereof; and 3. That if he/she should thereafter learn that the same or similar action or claim has been filed or is pending, he/she shall report that fact within 5 days therefrom to the court wherein histher complaint or iniiatory pleading was been filed (Rule 7, Sec. 5) @: May an “office manager and resident interpreter” for 23 years sign the verification and certification without need of a board resolution? A: Yes. X can be considered as having knowledge of all matters in the office and is in a position to verify “the truthfulness and the correctness of the allegations in the Petition’ (Fuji Television Network, Inc. v. Arlene S. Espiritu, G.R. No. 204944-45, December 3, 2014). 3. Allegations in a Pleading : What are the contents of a pleading? A: A pleading should only contain ULTIMATE FACTS, which are essential to a party's cause of action or defense. It must be stated in a logical form and in a plain and concise manner (Sec. 1, Rule 8). What are ultimate facts? A: The ULTIMATE FACTS are the important and substantial facts which form the basis of the primary right ofthe plaintiff and which make up the ‘wrongful act or omission of the defendant. If the Ultimate facts are not alleged, the cause of action would be insufficient (Riano, Civil Procedure: A Restatement for the Bar, 2d ed., 2009). Q: How do you allege fraud or mistake? A: Fraud or mistake, the circumstances constituting such fraud or mistake must be stated with PARTICULARITY. How do you allege malice, knowledge or other conditions of the mind of a person? lalice, intent, knowledge or other conditions of the mind of a person may be averred GENERALLY. (Rule 8, Sec. 5) : How do you allege an official document or act? ‘A: It is sufficient to aver that the document or act, was issued or done in compliance with law (Rule 8, Sec. 9) jow do you plead an actionable document? \: (SUB-OR-COP) 41. The substance of such document shall be set forth in the pleading; and the original or a copy shall be attached as an exhibit; or 2. Said copy may with like effect be set forth in the pleading (Rule 8, Sec. 7). What is the effect if the defendant fails to deny under oath? 4. The genuineness and due execution of an actionable document is deemed admitted (implied Admission) (Casent Really Development Corp v. Philbanking Corporation, GR. No. 150731, 2007). PAGE 28 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. The document need not be formally offered in evidence (Central Surety v. Hodges, G.R. No. -28633, 1971) Q: What is specific denial? ‘A: A specific denial is made by specifying each material allegation of fact, the truth of which the defendant does not admit and, whenever practicable, setting forth the substance of the ‘matters upon which he relies to support his denial (UA vs. Wallem Philippines Shipping, Inc G.R. No. 171337, 2012). Q: What is the effect of failure to make a specific denial? A: General Rule: Allegations NOT specifically denied are deemed admitted (Rule 8, Sec. 11). Exceptions: (UC-COA) |. Allegations as to the amount of unliquidated damages (Rule 8, Sec. 11); 2. Conclusion of faw; and 3. Allegations immaterial as to the cause of action, : When does a specific denial require an oath? A: (ADU) 1. Denial of an actionable document (Rule 8, Section) 2. Denial of allegations of usury in a complaint to recover usurious interest (Rule 8, Sec. 11) Q: What is a negative pregnant? ‘A: Where a facts alleged with some qualifying or modifying language, and the denial is conjunctive, a “negative pregnant” exists, and only the qualification or modification is denied, while the fact itself is admitted (Galofa v. Nee Bon Sing, GAR. No, L-22018, 1968). 4, Effect of Failure to Plead Q: What is the general rule on the effect of failure to plead defenses or objections? ‘A: Defenses and objections not pleaded either in ‘a motion to dismiss or in the answer are deemed waived (Rule 9, Sec. 1) Q: What are the exceptions? ‘A: However, there is no such walver, and the Court shall DISMISS the claim if it appears from the pleadings or the evidence on record that there is: (LLRP) 1. Lack of jurisdiction over the subject matter 2. Litis pendentia 3. Res judicata 4, Prescription (Rule 9, Sec. 1) Q: What is the effect of the failure to plead a compulsory counterclaim and cross-claim? ‘A compulsory counterctaim, or a cross-claim, not set up shall be barred (Rule 9, Sec. 2). Exception: Permissive counterclaim shall not be barred (International Container Terminal Services, Inc. v. CA, G.R. No. 90530, 1992). 5. Default Q: What are the remedies against an order of default? A 4. Remedy after notice of order and before judgment — File a motion under oath to set aside the order of default and properly show that: a. The failure to answer was due to fraud, accident, mistake, or excusable negligence (FAME); and b. Meritorious defense (ie. affidavit of merit) (Rule 9, Section 3 (b) of the Rules of Court) 2. Remedy after judgment and before it become final and executory — File a motion for new trial under Rule 37 and/or appeal from the judgment as being contrary to law or evidence (Lina v. CA, G.R. No. L-63397, 1985), 3, Remedy after judgment becomes final and ‘executory ~ File a petition for relief from judgment under Rule 38. 4, Grave abuse of discretion amounting to lack or excess of jurisdiction and no plain, speedy, and adequate remedy available for those improperly declared in default — Petition for Certiorari under Rule 65 : What is the effect of order of default? PAGE 29 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: The party in default loses his standing in court, but he is entitled to notices of subsequent proceedings (Rule 9, Sec. 3 (a). ‘The party may stil participate as a witness (Riano, Civil Procedure (The Bar Lecture Series) Volume 1, 2014), Q: What is the relief from an order of default? ‘A; Ajudgment rendered against a party in default shall: (EDU) 41. not exceed the amount or 2. be different in kind from that prayed for 3. nor award unliquidated damages (Rule 9, Sec. 310) Q: What is the effect of partial default? ‘A; When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented (Rule 9, Seo. 3 (0), Q: When is there no defaults allowed? (JAL) rt 1. Judicial Declaration of Nullty of Marriage 2. Annulment of marriages 3, Legal Separation (Rule 9, Sec. 3 (2). 6. Filing and Service of Pleadings Q: What is filing? ‘A: The act of presenting the pleading or other papers to the CLERK OF COURT (Rule 13, Sec. 2). For the purpose of fling, the original must be presented personally to the clerk of court or by sending the same by registered mail (Rule 13, Sec. 3) Q: What is service? ‘A: The act of providing a party with a COPY of the pleading or paper concemed (Riano, p. 402) NOTE: Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers ‘emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or fling was not done personally. A Violation of this Rule may be the cause to consider the paper as not fled (Rule 12, Sec. 11). What papers are required to be filed with the Court and served upon the parties affected? \: (JPRO®-WANDS) 1. Judgments; 2. Pleadings subsequent to the complaint; 3, Resolutions; 4, Orders; 5. Offers of judgment; 6 7. 8. 9, 1 . Write motion; ‘Appearances; Notices; . Demands; 0.Similar papers (Rulo 13, Sec. 4). Q: What are the papers required to be filed? (PAM-NO-JA) Pleadings ‘Appearances ‘Motions Notices Orders . Judgments Allother papers (Rule 13, Sec. 3) 1 2, 3 4 5 6 7. 2 : What are the papers required to be served to the adverse party? ‘A: (POM-NO-JO) 1. Bleadings ‘Orders ‘Motions Notices Judgments ‘Other papers (Rule 13, Sec. 5) 2. 3, 4 5. 6 : An RTC decision rendered in favor of the Republic to expropriate the property of X the RTC rendered judgment in favor of the Republic condemning the subject property for the purpose of implementing the construction of the C-5 Northern Link Road Project Phase 2. The RTC likewise directed the Republic to pay respondents consequential damages equivalent to the value of the capital gains tax and other taxes necessary for the transfer of the subject property in the Republic's name. The Republic moved for _ partial reconsideration, specifically on the issue relating to the payment of the capital gains tax, but the RTC denied the motion in its Order PAGE 30 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW dated January 10, 2013 for having been belatedly filed. Is the RTC correct to deny such motion? A: No. Section 3, Rule 13 of the Rules of Court provides that if a pleading is fled by registered ‘mail, the date of mailing shall be considered as the date of filing. It does not matter when the court actually receives the mailed pleading. In this case, the records show that the Republic fled its Motion for Partial Reconsideration before the RTC via registered mail on September 28, 2012. Although the trial court received the Republic's motion only (on October 5, 2012, it should have considered the pleading to have been filed on September 28, 2012, the date of its mailing, which is clearly within the reglementary period of 15 days to file said ‘motion, counted from September 13, 2012, or the date of the Republic's receipt of the assailed Decision.Given these circumstances, we hold that the RTC erred in denying the Republic's Motion for Partial Reconsideration for having been filed out of time. (Republic v Sps. Senando G.R. No. 205428, June 7, 2017) Q: What are the rules on the payment of docket fees? ‘A: Acourt acquires jurisdiction over the case only upon payment of docket fees. (Manchester Development Corporation vs. CA, GR no. 75919, 1987) In Manchester, this Court stated that the allegation in the body of the complaint of damages suffered jin the amount of P78,000,000.00, and the ‘omission of a specific prayer for that amount, was intended for no other purpose than to evade the payment of correct fling fees if nat to mislead the docket clerk in the assessment of the correct fee. The ruling was intended to put a stop to such an itregularity. (Yuchengco v. Republic, G.R. No. 131127, 2000) Therefore where [2 party] demonstrated his willingness to abide by the rules by paying the additional docket fees as required, a more liberal interpretation of the rules is called for. (Sun Insurance Office Lid. v. Asuncion, 1989) But the Court clarified that the ruling in Sun Insurance regarding awards of claims not specified in the pleading refers only to damages arising after the filing of the complaint or similar pleading as to which the additional filing fee therefor shall constitute a lien on the judgment. (Proton Pilipinas Corp. v. Banque Nationale de Paris, G.R. No. 151242, 2005) Q: What is the effect of non-payment of docket fees as required? A: The Court wil fal to acquire jurisdiction over the case. (Manchester Development Corporation vs. CA, GR no. 75919, 1987) G. AMENDMENT Q: How is an amendment made? A: Pleadings MAY be Amended By: (AS*C*) 41. Adding or striking out an allegation of a party; 2. Adding or striking out the name of a party; 3. Correcting a mistake in the name of a party; and 4. Correcting a mistake or inadequate allegation or description in any other respect. (Sec. 1, Rule 10) Q: When is amendment a matter of right? ‘A: A party may amend his pleading ONCE as a ‘matter of right. Subsequent amendments must be WITH LEAVE of court It may be exercised at ANY time BEFORE a responsive pleading is SERVED. In the case of a reply itmay be amended at any time within ten (10) days after itis SERVED (Rule 10, Sec. 2) leader has a right to amend his complaint before a responsive pleading is served even if it is to correct a jurisdictional defect. When Amendment is a Matter of Right: 1. A COMPLAINT may be amended before an answer is served (regardless of whether a new cause of action or change in theory is introduced — thus, MAY be substantial); 2. An ANSWER may be amended before a reply is served upon the defendant; 3. AREPLY may be amended any time within ten (10) days after itis served; and 4. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Rule 10, Sec. 4). PAGE 31 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Section 2 Rule 10 refers to an amendment made before the trial court and NOT to amendments before the Court of Appeals. The Court of Appeals is vested with jurisdiction to admit or deny ‘amended petitions filed before it (Navarro v. Vda De Taroma, G.R. No. 160214, 2008) Even if the motion to dismiss is granted by the ‘court, the plaintif may still amend the complaint as ‘a matter of right before such dismissal becomes final. Before the filing of any responsive pleading, a arly has the absolute right to amend his pleading, regardless of whether a new cause of action or change in theory is introduced. It is settled that a motion to dismiss is not the responsive pleading contemplated by the Rule (Bautista v. Maya-Maya, G.R. No. 148361, 2005). The plaintif may amend his complaint once as a matter of right, ie. without leave of court, before any responsive pleading is filed or served. Responsive pleadings are those which seek affirmative relief andior set up defenses, lke an answer. A motion to dismiss is not a responsive pleading for purposes of Section 2 of Rule 10 (Marcos-Araneta v. CA, G.R. No. 154096, 2008) Itis erroneous for a court to refuse an amendment exercised as a matter of right and this error may be corrected by mandamus (Ong Peng v. Custodio, G.R. No. L-14911, 1961). Q: When is leave of court required in amendment? A 4. Ifthe amendment is substantial; and 2. Kresponsive pleading had already been served (Rule 10, Secs. 2-3). @: When can the court refuse to allow amendments by leave of court? ‘A: Amendment by Leave of Court may NOT be Allowed When: 1. Cause of action, defense or theory of the case is changed; 2. Amendment is intended to confer jurisdiction to the court; 3, Amendment to cure a premature or non- existing cause of action; and 4, Amendment for purposes of delay. After a responsive pleading has been served, a complaint cannot be amended to confer jurisdiction on the court in which it is filed, if the cause of action originally set forth was not within the court's jurisdiction (Campos Rueda Comporation v. Bautista, G.R. No. L-18453, 1962). Q: What is a formal amendment? A: A defect in the designation of the parties and other clearly CLERICAL or TYPOGRAPHICAL errors may be summarily corrected by the court at ANY stage of the action, at its initiative or on motion, provided so prejudice is caused thereby to the adverse party (Rule 10, Sec. 4). Q: When is amendment needed to conform to or authorize presentation of evidence applicable? ‘A: When Issues Not Raised by the Pleadings Are Tried with the Express or Implied Consent of the Parties 1. They shall be treated in all respects as if they had been raised in the pleadings. 2, Such amendment of the pleadings as may be necessary to cause them to conform to the ‘evidence may be made upon motion of any party at any time, even after judgment. 3. BUT failure to amend does NOT affect the result of the trial of these issues. If Evidence is Objected to at the Trial on the Ground That it is Not Within the Issues Made by the Pleadings 1. The court may allow the pleadings to be amended. 2. It shall do so with liberality ifthe presentation of the merits of the action and the ends of substantial justice will be sub served thereby. 3. The court may grant a continuance to enable the amendment to be made (Rule 10, Sec. 5) This also covers situations where a complaint insufficiently states the cause of action. Such insufficiency may be cured by evidence presented during the trial without objection. However, this is applicable only if a cause of action in fact exists at the time the complaint is filed, but the complaint is defective for failure to allege the essential facts (Swagman Hotels and Travel Inc., v. CA, G.R. No. 161135, 2008) PAGE 32 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘What is the effect of an amended pleading? ‘An amended pleading supersedes the pleading that it amends. Under the Rules, pleadings superseded or amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utiized against the pleader as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. If not offered in evidence, the admission contained therein will not be considered (Ching v. CA, G.R. No. 110844, 2000), Admissions made in the original pleadings are considered as EXTRAJUDICIAL admissions. However, admissions in superseded pleadings may be received in evidence against the pleader as long as they are formally offered in evidence (Rule 10, Sec. 8). Q: What is the procedure? A: When any pleading is amended, a new copy of the entire pleading, incorporating the amendments, which shall be indicated by the appropriate marks, shall be fled (Rule 10, Sec. 7). Q: Nature and purpose of summons in relation to actions in personam, in rem, and quasi in ‘A: In actions in personam, the judgment is for or against a person directly. Jurisdiction over the parties is required in actions in personam because they seek to impose personal responsibility or liability upon a person. [On the other hand,] Courts need not acquire jurisdiction over parties on this basis in in rem and quasi in rem actions. Actions in rem or quasi in rem are not directed against the person based on his or her personal liability. (De Pedro v. Romasan Development Corp., G.R. No. 194751, 2014) Q: What is substituted service? A: Substituted service can only be made if personal service CANNOT be made within a Feasonable time for justifiable causes. (Rule 13, Sec. 8) Q: What are the service to be justi A; For Substituted Service of Summons to be valid, the following MUST be demonstrated: (IE~ SAD-CP) 1. That personal service of summons within a reasonable time was impossible; 2. That efforts were exerted to locate the party; and 3. That the summons was served upon a person of sufficient age and discretion residing at the party's residence or upon a competent ‘person in charge of the party's office or regular place of business. (Macasaet vs. Francisco, GR No. 156759, 2013) It Is Tkewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer's return (Sagana v. Francisco, G.R. No.161952, 2009). Q: How is personal service done? A: How Served (HT) 1. By handing a copy thereof to the defendant in person 2. If he/she refuses to receive and sign for it, summons will be tendered by server to defendant. (Section 6, Rule 13) @: What are the requirements for extra- territorial service? A: Involves a NON-RESIDENT defendant who CANNOT be found in the Philippines and the action against him is IN REM or QUASI IN REM. Exception: When service may be effected OUT of the Philippines (as provided in extra-territorial service) for ANY ACTION involving residents who are TEMPORARILY out of the Philippines. (Rule 14, Sec. 16). Q: Instances When Extraterritorial Service May be availed of A: (PLEA) 1. Actions that affect the personal status of the plaintiff; 2. Actions which relate to, or the subject matter of which is property within the Philippines, in which defendant claims a actual or contingent; 3. Actions in which the relief demanded consists, wholly or in part in excluding the defendant PAGE 33 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW from an interest in the property located in the Philippines; and 4. When defendant's property has been attached In the Philippines. (Perkin Elmore vs. Dakila Trading, G.R. No. 172242, 2007) Q: Petitioners had actually received the summonses served through their substitutes, as borne out by their filing of several pleadings in the RTC, including their answer with compulsory counterclaim ad cautelam and a pre-trial brief ad cautelam. They also availed of, the modes of discovery. Can they insist on personal service? ‘A: No, their insistence was demonstrably superfluous. Such acts evinced their voluntary ‘appearance in the action (Macasaet vs. Co, G.R. No. 156759, 2013) Q: When is summons by publication available in an action in personam? A: (DU-WU-RT) 1. Identity of the defendant is unknown 2. His whereabouts are unknown and cannot be ascertained by diligent inquiry; 3. He is a resident of the Philippines but is temporarily out of the country If he does not reside and is not found in the Philippines but the suit can be properly maintained against him in the Philippines, it being in rem or quasi in rem, Service of summons shall be effected by publication in a newspaper of general circulation and in such places and for such time as the court may order, (Santos vs. PNOC, G.R. No. 170943, 2008) In ANY suit against a resident of the Philippines temporarily absent from the country, the defendant may be served by SUBSTITUTED service because he stil leaves a definite place of residence where helshe is bound to return, (Rule 14, Sec.16) In addition, EXTRA-TERRITORIAL service [by personal service effected out ofthe Philippines OR by publication in a newspaper of general circulation in such places and for such time as the court may order] MAY be resorted to WITH LEAVE OF COURT. (Riano, Civil Procedure: A Restatement for the Bar, 2d ed., 2009, p. 400) Summons by publication against_a_NON- RESIDENT in an action IN PERSONAM is NOT a proper mode of service, Q: The Sandiganbayan issued summons on an amended complaint. The summons as to X was returned unserved. The Republic then filed an exparte motion for leave to serve summons by publication. Alias summons were issued twice but both were returned unserved. The Republic then filed a motion to declare defendant X in default for failure to answer despite summons by publication, which was eventually granted. X then filed a motion to lift order of default. Throughout the proceeding, X also filed a motion to expunge exhibits, and a motion for leave to take deposition. Is the validity of the service of summons deemed mooted? ‘A:Yes. In this case, X fled several motions, which sought various affimative reliefs. By doing such, X was deemed to be submitting himself to the jurisdiction of the Sandiganbayan. Service of summons isnot the only way to acquire jurisdiction over the person of the defendant. Another is through voluntary appearance (Disini_v. Sandiganbayan, GR. No. 178730, May 7, 2010). Q: What are the requisites of proof of service? ‘A: The following are the requisites and contents of ‘a valid proof of service (W-MPD-SN-S) 1, Made in writing by the server 2. Shall sel forth the manner, place, and date of 3. Shall specify any papers which have been served with the process and the name of the person who received the same; and 4, Shall be sworn to when made by a person other than a sheriff or his deputy (Rule 14, Sec. 18). T MOTIONS Q: What is a motion? ‘A: An application for relief other than by a pleading. The rules that apply to pleadings shall also apply o written motions so far as concems caption, designation, signature, and other matters of form. (Rule 15, Soc. 10) PAGE 34 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q; What is a motion ex parte? ‘A: One that does not require a party to be heard ‘and which the court may act upon without prejudice the rights of the other party. This kind of motion is not covered by the hearing requirement under Section 2, Rule 15 of the Rules of Court. (Bautista vs. Judge Causapin, A.M. No. RTJ-07-2044, 2011) Examples 1. Setting for pre-trial (Rule 18, Sec. 1) 2. Motion for extension of time (Bautista vs. Judge: Causapin, A.M. No. RTJ 07-2044, 2011) Q; What is a litigated motion? ‘A: One which requires the parties to be heard before ruling on the motion can be made by the court (Riano, p. 368). Examples 41. Motion to Dismiss (Rule 16) 2. Motion for Judgment on Pleadings (Rule 34) 3, Summary Judgment (Rule 35) What is a special motion? ‘A motion addressed to the discretion of the court (Black's Law Dictionary) Q: What is omnibus motion? ‘A: The OMNIBUS MOTION RULE is a procedural principle which requires that every motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived (Rule 15, Sec. 8). Q: What is a motion for bill of particulars? A: Itis a motion which seeks to clarify matters in the complaint which are vague, ambiguous, or not averred with sufficient definiteness. It applies to ANY PLEADING which in the perception of the movant contains ambiguous allegations. (Rule 1, Sec. 12, Virata vs. ‘Sandiganbayan, G.R. No. 106527, 1993) Q: What are the grounds for a motion to dismiss? A; (JV-L?-BaCa-ExUC) 1. Absence of jurisdiction over 1a. Person of the defending party OR b. Subject matter ofthe claim enue is improperly laid Plaintif has no legal capacity to sue ‘Another action is pending between the same parties for the same cause (Litis Pendentia) 5. Cause of action is barred by a. A prior judgment (Res Judicata) OR b. The statute of limitations (Prescription) 6. No cause of action stated in pleading asserting the claim (Failure to state cause of action) 7. Payment, waiver, abandonment, or extinguishment of claim or demand set forth in the plaintiffs pleading 8. Unenforceable (under the provisions of the Statute of Frauds) claim under which the action is founded 9. Non-compliance with a condition precedent for fling the claim (Rule 16, Sec. 1) Itis subject to the OMNIBUS MOTION RULE. Any objection available at the time of filing of the pleading NOT raised will be DEEMED WAIVED. Q: X raised the ground of defective verification and certification of forum shopping only when they filed their second motion to dismiss, despite the fact this ground was existent and available to them at the time of the filing of their first motion to dismiss. Is this ground waived? A: Yes, absent any justifiable reason to explain this fatal omission, the ground of defective verification and certification of forum shopping was, deemed waived and could no longer be ‘questioned by the petitioners in their second motion to dismiss (De Guzman vs. Ochoa, GR. No. 169292, Apri 13, 2011) Q: What are the 3 courses of action of the court, for the resolution of the motion? A: (DDA) 1. Dismiss the action or claim 2. Deny the motion 3. Order the amendment of the pleading. Court shall NOT defer the resolution of the motion for the reason that the ground relied upon is not indubitable. The resolution shall state clearly and distinctly the reasons therefor in every case. (Rule 16, Sec. 3) PAGE 35 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the remedies of the plaintiff when the complaint is dismissed? A: (RAP) 41, Reefile complaint if ground for dismissal does NOT bar refling 2. Appeal from order of dismissal if ground for dismissal is one which BARS refiing of complaint such as: (RPES) a. Res judicata b, Prescription c. Extinguishment of obligation 4. Violation of the Statue of Frauds (Rule 16 Sec. 5) 3. Retition for Certiorari if court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice. (Strongworld Construction vs. Porello, G.R. No. 148026, 2006) Q; When do you file a motion to dismiss? State the general rule and the exceptions. A; General Rule: A motion to dismiss i filed within the time for fing the answer but BEFORE filing said answer. Ia motion to dismiss is fled AFTER the answer has been filed, itis to be considered filed OUT OF TIME and the defending party is estopped from filing the motion to dismiss. Exceptions: (LLPS) ‘A Motion to Dismiss MAY be Filed AFTER the Fling of an Answer or at any time during the proceedings: 1. Ifthe ground raised is lack of jurisdiction over the subject matter; 2. If it is alleged that there is another action pending between the same parties for the ‘same cause or litis pendentia; 3. Ifthe ground filed is that the action is barred by prior judgment; or 4.1If the action is barred by the statute of limitations (Riano, Civil Procedure Volume 1, 477, 2014), Q: What are the instances when a complaint ‘can no longer be re-fled after the court grants ‘a motion to dismiss? ‘A: (SURE) 1. Cause of action barred by statute of limitations 2. Claim is unenforceable under the Statute of Frauds 3. Cause of action barred by prior judgment or res judicata; 4, Claim or demand has been paid, waived, abandoned, or extinguished (Rule 16, Sec. 5). : Is the defense of lack of jurisdiction over the person of a party one of the defenses which are not deemed waived under Section 1 of Rule 97 ‘A: No, Such defense must be invoked when an answer or a motion to dismiss is filed in order to prevent a waiver of the defense (Boston Equity Resources, Inc. v. CA, G.R. No. 173946, 2013). @: Is the ground of non-compliance with condition precedent deemed waived if not raised in motion to dismiss or answer? A: Yes. The rule is that defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. Since the heirs of X did not raise the defense of non-compliance with Art 151 of the Family Code as a ground to dismiss the complaint to annul the Deed of Donation, such was deemed waived (Heirs of Favis v. Gonzales, 2014), Is a preliminary hearing on affirmative defense raised in the answer necessary when affirmative defense is failure to state a cause of action? : No. When the motion is based on the ground of Insufficiency of the cause of action which must be determined on the basis only of the facts alleged in the complaint and no other (Aquino vs. Quiazon, GR. No, 201248, 2018) @: When can prescription be a ground for motion to dismiss? : An allegation of prescription can effectively be used in a motion to dismiss only when the ‘complaint on its face shows that indeed the action has already prescribed. Ifthe issue of prescription Js one involving evidentiary matters requiring a full blown trial on the merits, it cannot be determined ina motion to dismiss (Sanchez v. Sanchez, G.R. No, 187661, 2013) : The RTC rendered a Decision in favor of X. Thereafter, a writ of execution was issued by the trial court. Thereafter, the Branch Sheriff conducted a public bidding and auction sale ‘over the property covered by TCT during which X was the highest bidder. Consequently, a PAGE 36 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW certificate of sale was executed in her favor on ‘even date and was annotated at the back of the TCT. Thereafter, the taxes due on the sale of the subject property were paid. X filed a motion for the Issuance of an order directing the sheriff to execute the final certificate of sale in her favor. Y opposed on the twin grounds that the subject motion was not accompanied by a notice of hearing and that the trial court's Decision can no longer be executed as it is barred by prescription. The trial court granted the motion. Y moved for reconsideration which was denied. Y thereafter ‘sought review via certiorari before the CA. The CA denied the petition saying that the motion is nondlitigious so the three-day notice rule does not apply. Was the CA correct? A: Yes. The CA correctly ruled that the subject ‘motion is a nor-itgious motion. While, as a general rule, all writen motions should be set for hearing under Section 4, Rule 15 of the Rules of Court, excepted from this rule are noritigious motions or motions which may be acted upon by the court without prejudicing the rights of the adverse party. As already discussed, respondent is entitled to the issuance of the final certificate of sale as a matter of right and petitioner is powerless to oppose the same. Hence, the subject motion falls under the class of non-ltigious motions. (Jose delos Reyes v. Josephine Ramnani, G.R. No. 169135, June 18, 2010) ‘J. DISMISSAL OF ACTIONS Q: When will the case be dismissed motu propio or on motion due to the fault of the plaintiff? (Rute 17, Sec. 3) ‘A: When, iffor no justifiable cause, plaintiff FAILS to: 1. Appear on the date of presentation of his evidence in chief, 2. Prosecute his action for an unreasonable length of time; 3. Comply with the Rules of Court; 4. Comply with any order of the Court; or 5. Appear at pre-trial : What is the effect of dismissal upon motion of the plaintiff on existing counterclaims? A: The dismissal of the complaint does not necessarily carry with it the dismissal of the counterclaim, compulsory or otherwise. The dismissal of the complaint is without prejudice to the right of the defendants to prosecute the counterclaim. (Pinga v. Santiago, GR. No. 170354, 2006). PRE-TRIAL, Q: What are the purposes of pre-trial? A: To allow the court to consider: 1. The possibilty of an amicable settlement or of a submission to alternative modes of dispute resolution; . The simplification of the issues; . The necessity or desirability of amendments to the pleadings; 4. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; The limitation of the number of witnesses; 6. The advisabilty of a preliminary reference of issues to a commissioner; 7. The propriety of rendering judgment on the pleadings, or summary judgment, or dismissing the action should a valid ground exist; 8. The advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action (Rule 18, Sec. 2) Q: What are the effects of non-appearance in Pre-trial? A: Ifthe plaintif fails to appear, this shall be cause for dismissal of the action which is with prejudice unless otherwise ordered by the court. Ifthe defendant fails to appear, it shall be cause to allow the plaintiff to present his evidence ex parte and the court to render the judgment on the basis thereof. (Rule 18, Sec. 5) L. INTERVENTION. Q: What are the requisites for intervention? A 1. Motion for intervention filed BEFORE rendition fof judgment. (Rule 19, Sec. 2) 2. Movant must show in hisher motion that he/she has legal interest in the matter in litigation, in the success of either of the parties in the action, or against both parties; or PAGE 37 OF 152ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW b. is situated as to be adversely affected by a distribution or other disposition of property in the custody ofthe court. (Rule 19, Sec. 1) 3. Intervention must not unduly delay or prejudice the adjudication of rights ofthe original parties. 4, Intervenors rights may not be fully protected in a separate proceeding. (Mactan Cebu vs. Heirs of Mioze, G.R. No, 186045, 2011) WM, SUBPOENA. Q:; What is subpoena ad testificandum? A: Process directed to a person requiring him to attend and to testify atthe hearing or for the taking of his deposition (Rule 21. Sec. 1). Q: When can subpoena duces tecum and ad testificandum be quashed? ‘A: Subpoena duces tecum may be quashed upon motion promptly made at or before the time specified therein: 1. Ifitis unreasonable and oppressive 2. The relevancy of the books, documents, or things does not appear 3. Ifthe person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof 4. That the witnesses’ fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Rule 21, Sec. 4) Q: When may subpoena ad testificandum be quashed? A 1. It is shown that the witness is not bound thereby 2. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Rule 21, Sec. 4) N. COMPUTATION OF TIME Q: What is the correct rule on the computation of time according to A.M. 00-2-14-SC? ‘A; When the due date falls on a Saturday, Sunday, cf legal holiday, in which case, the filing of the said pleading on the next working days is deemed on time. Any extension of time to file the required pleading should be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday, or legal holiday (Reinier Pacific Intemational vs. Guevarra, GR. No. 187020, 2013) ‘0, MODES OF DISCOVERY Q: What is a deposition? A: Taking of the testimony of any person, whether helshe be a party or not, but at the instance of a party to the action. This testimony is taken out of court and it may either be an oral examination or a written interrogatory (Rule 23, Sec. 1). : When is leave of court necessary in taking depositions pending appeal? has Scboon fled 2. Depositionizr offi personiti inige prison (Rule 24, Sec. 1). confined’ : What are the uses of deposition (under Sec. Rule 23)? (CIAW-D-100-ASI?-S-E) 1. For the purpose of contradicting or impeaching the testimony of the deponent as witness by any party; 2, Ifthe deponent is a party or anyone who was at the time of the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which isa party, hisiher deposition can be used by an adverse party for any purpose. 3, Ifthe deponent is a witness, whether or not a party to the case, his/her deposition may be Used by any party for any purpose if the court finds that: a. The witness is dead; or b. The witness resides at a distance more than fone hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines (UNLESS it appears that his/her absence was procured by the party offering the deposition); or ©. The witness is unable to attend or testify because of age, sickness, ir prisonment; or 4. The party offering the deposition has been tunable to procure the attendance of the witness by subpoena; or PAGE 38 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW fe. Upon application and notice, that such exceptional circumstances exist as to ‘make it desirable, in the interest of justice to allow the deposition to be used (Rule 23, Sec. 4). Q: What is production or inspection of documents or things? ‘A: Upon motion of any party showing good cause therefor, the court in which an action is pending may: 1. Order any party to produce and permit the inspection and copying or photographing, by or ‘on behalf of the moving party, of any designated documents, papers, books, ‘accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any ‘matter involved in the action and which are in his possession, custody or control, or 2. Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon, ‘The order shall specify the time, place and manner ‘of making the inspection and taking copies. and photographs, and may prescribe such terms and ‘conditions as are just (Rule 27, Sec. 1). Q: What are the limitations on production or inspection of documents or things? A: (NPR) May be any matter not privileged and which is relevant to the subject of the pending action, including: (CD-BD-IL) 1, Glaim or defense of any other party: 2. Existence, description, nature, custody, condition and location of any books, documents, or other tangible things; and 3. Identity and location of persons having knowledge of relevant facts. In civil cases, a person may not use the right against sel-incrimination as an objection to make a deposition. Only when an incriminating question is asked can a person invoke the right. (Rosete v. Lim, G.R. No, 136051, 2006). Q: What are written interrogatories to adverse parties? AA; Its purpose is to elicit material and relevant facts from any adverse party, which may amount to admission, Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal Since the calling party is deemed bound by the adverse party's testimony, and in view of failure to avail of written interrogatories, compeling the adverse parly to take the witness stand may result in the caling party damaging its own case (Sps. Afulugencia v. Metrobank, G.R. No. 185145, 2014). @: When can a physical and mental examination of a person be ordered? ‘A: When the mental or physical condition of a party isin controversy, the court, UPON MOTION. FOR GOOD CAUSE SHOWN, may order the party to submit toa physical or mental examination by a physician. The party examined MAY request the party causing the examination to be made to deliver to him a copy of a detailed report of the examining physician (Rule 28, Sec. 1-3) Q: What are the consequences of refusal to answer any question upon oral examination? A 1. The proponent may apply for a court order to compel an answer: a. Ifthe motion is GRANTED — the court shall require the refusing party to answer. If the refusal to answer was without SUBSTANTIAL JUSTIFICATION, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attomey's fees. b. If the motion is DENIED — and the court finds that it was fled WITHOUT SUBSTANTIAL JUSTIFICATION, the court PAGE 39 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘may require the proponent or the counsel advising the fling of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attomey’s fees. 2, Ifdespite the court order, the party or deponent siill refuses to answer, the refusal may be considered contempt of that court or the court may make such order as are just under Section 3, Rule 29 of the Rules of Court (Rule 29, Sec. 1) Q: What are the consequences of refusal to produce document or thing for inspection, 1g oF to submit to physical or mental ‘A: The court may make such orders in regard to the refusal as are just, and among others, also Issue the following: 1. An order that the matters regarding which the {questions were asked shall be TAKEN TO BE. ESTABLISHED for the purposes of the action jn accordance with the claim of the party obtaining the order. 2. An order a. Prohibiting the disobedient party to support oF oppose claims or defenses, or . Prohibiting such disobedient party from Introducing In evidence designated documents or things or items of testimony. 3. An order Striking out pleadings or parts thereof, or b. Staying further proceedings until the order is obeyed, . Dismissing the action or proceeding or any part thereof, or d. Rendering a judgment by default against the disobedient party, 4, In addition to any of the above orders, an order directing the arrest of any party or agent of a party for disobeying any of such orders (Rule 29, Sec. 3). Q: What are the consequences of refusal to request for admission by adverse party? A: If a patty after being served with a request lunder Rule 26 to admit the genuineness of any document or the truth of any matter of fact serves a swom denial thereof and if the party requesting the admissions thereafter proves the genuineness, ‘of such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him/her the reasonable expenses incurred in making such proof, including attomey’s fees. Unless the court finds that there were good reasons for the denial or that admissions soug! ‘were of no substantial importance, such order shall be issued (Rule 29, Sec. 4). : X is the registered owner of a lot located in Roxas City. In 1991, Foundation Y took possession and occupancy of said lot by virtue ‘of a memorandum of agreement entered into by and between it and the City of Roxas. The possession and occupancy of said land is in the character of being lessee thereof. In February and March 2003, X served notices upon the Foundation Y to vacate the premises of said land. Foundation Y did not heed such notices because it still has the legal right to continue its possession and occupancy of said and. in 2003, X filed a Complaint for Unlawful Detainer against the Foundation Y before the MTCC of Roxas City. In the complaint, X judicially admitted that Foundation Y took control and possession of subject property without their consent and authority and that respondent's use of the land was without any contractual or legal basis. What is the effect if this admission/allegation? Was there an unlawful detainer in this case? ‘A: No. A judicial admission is one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules of practice necessary to be observed and complied with, The facts alleged in the complaint are deemed admissions of the plaintiff and binding Upon him. In this case, X judicially admitted that Foundation Y took control and possession of subject property without their consent and authority and that respondent's use of the land was without any contractual or legal basis. Nature of the action is determined by the judicial admissions inthe Complaint. In this case, the allegations in the Complaint establish a cause of action for forcible entry, and not for unlawful detainer. X’s Complaint ‘maintained that the Foundation Y took possession and control of the subject property without any contractual or legal basis. Assuming that these allegations are true, it hence follows that PAGE 40 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Foundation Y's possession was illegal from the very beginning. Therefore, the foundation of X's complaint is one for forcible entry. Thus, and as correctly found by the CA, there can be no tolerance as X alleged Foundation Y possession was illegal at the inception. Since the deprivation Of physical possession was attended by strategy and force, the proper remedy was to file a Complaint for Forcible Entry and not the instant suit for unlawful detainer. (Spouses Manuel and Fiorentina Del Rosario v. Genyy Roxas Foundation, Inc., G.R. No. 170575, June 08, 2011) Q: What is the effect of parties agreeing to ‘submit the case for judgment based on the facts agreed upon? ‘A: A trial need not be conducted because ‘evidence would no longer be presented. But ifthe parties agree only to some facts in issue, tral will be held as to the disputed facts (Rule 30, Sec. 6). What is the justification for consolidation? A: Its to prevent a judge from deciding identical issues presented in the case assigned to him in a manner that will prejudice another judge from deciding a similar case before him, The rigid policy is to [consolidate] all cases and proceedings resting on the same set of facts, or involving identical claims or interests or parties mandatory. [This] should be made regardless of whether or not the parties or any of them requests it. A mandatory policy eliminates conflicting results concerning similar or ike issues between the same parties or interests even as it enhances the administration of justice (Re: Letter Complaint Of Merita B. Faviana, AM, No. CA-13-51-J, 2013). (Q. DEMURRER TO EVIDENCE Q: Compare demurrer to evidence in a civil case and ina criminal case. AL Cro Ceo Leave of court is not| Filed with or without required before filing leave of court (Rule 119, Sec. 23) Hf demurrer is granted, | Not appealable (will the order of dismissal | violate the right, is appealable (Rule 33 | against double Sec. 1) jeopardy) If demurrer is denied, | Accused may adduce the defendant may | his evidence only ifthe proceed to present | demurrer is filed with evidence (Rule 33} leave of court (Rule Sec. 1) 119, Sec. 23) Court cannot motu] Court may — motu proprio make | proprio do so demurrer Q: What are the effects of granting the demurrer to evidence? A 1. The case shall be dismissed (Rule 33, Sec. 1; Republic v. Tuvera, 516 SCRA 113, 2007) 2. The appellate court, reversing the order granting the demurrer, should render judgment fon the basis of the evidence submitted by plaintiff. tis not correct to remand the case to the trial court (Villanueva Transit v. Javellana, 33 SCRA 755, 1930). 3, The appellate court, reversing the order of denial by the lower court, should render judgement on the basis of the evidence submitted by the plaintiff. A remand is not only frowned upon by the Rules, but is also logically unnecessary on the basis of the facts on record (Radiowealth Finance Corporation v. Del Rosario, 335 SCRA 288, 2000) 4. Ifreversed on appeal, the defendant loses his, Tight to present evidence (Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc., 465 SCRA 117, 2005). Q: X, Vice Mayor of T City, was charged with violation of Sec. 89 of PD 1445 before the Sandiganbayan for having obtained cash advances which he received by reason of his office. After the prosecution filed its formal offer of evidence and rested their case, X filed his demurrer to evidence. The Sandiganbayan granted the demurrer to evidence because the testimony of the lone witness of the prosecution that X had already liquidated the PAGE 41 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW cash advances proved that the element of “Damage” was lacking in the case. Did the Sandiganbayan act with grave abuse of discretion amounting to lack or excess of Jurisdiction in giving due course to and eventually granting the demurrer to evidence? A: No, the Sandiganbayan did not act with GADALE\. In the case at bar, the Sandiganbayan granted the demurrer to evidence on the ground that the prosecution failed to prove that the government suffered any damage from private respondent's non-liquidation of the subject cash advance because it was later shown that private. respondent liquidated the same albeit belatedly. Contrary to the findings of the Sandiganbayan, actual damage to the government arising from the non-iquidation of the cash advance is not an ‘essential element of the offense. The gravamen of the offense is the mere failure to timely queidate the cash advance since the law seeks to compel the accountable officer to promptly render an account of the funds which he has received by reason of his office. (People v. Sandiganbayan and Manuel Barcenas, GR. 174504, March 21, 2011), Q: When does a defendant lose present evidence? A: If the defendant's motion is granted, and the ‘order is subsequently reversed on appeal, the movant loses his right to present evidence (Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc., 465 SCRA 117, 2008). Fight to Q: What is the ground for granting a demurrer to evidence? ‘A: Upon the facts and the law, the plaintiff has shown no right to relief (Rule 33, Sec. 1) JUDGMENTS AND FINAL ORDERS Q: What are the contents of a judgment? a 1. Opinion of the court (findings of fact and ‘conclusions of law) ~ Ratio Decidendi, 2. Disposition of the case (dispositive portion) - Fallo: 3. Signature of the judge. When there is a conflict between the dispositive portion and the body of the decision, the FALLO control (Florentino v. Rivera, G.R. No. 167968, 2006), ‘A decision that does not clearly and distinctly state the facts and the law on which itis based leaves the partes in the dark and is especially prejudicial to the losing party who is unable to point the assigned error in seeking a review by a higher tribunal (Shimizu Philippines Contractors, Inc. v. Magsalin, G.R. No, 170026, 2012). Q: What is a memorandum decision? ‘A: The judgment or final resolution of the appellate court may adopt by reference the findings of facts land conclusions of law contained in the decision of the trial court (Solid Homes v. Lasema, G.R. No. 166051, 2008) Q: What are the elements of res judicata? A: (FMC) 1. Former judgment or order must be final 2. The judgment or order must be on the merits 3. It must have been rendered by a court having jurisdiction over the subject matter and the parties, 4, There must be, between the first and second ‘action, identity of parties, of subject matter, and causes of action (Sps. Mendiola v. CA, G.R No. 159746, 2012) When is there a bar by prior judgment? \:: When there is identity of (PSC) Parties ‘Subject matter Causes of action (Spouses Ocampo v. Heirs of Dionisio, G.R. No. 191101, 2014) ees Q: When is there identity of parties? ‘A: There is identity of parties not only when the parties in the case are the same, but also between those in privity with them, such as between their successors-in-interest (Quintos v. Nicolas, G.R. ‘No. 210282, 2014) Q: What is the test to determine identity of causes of action? ‘A: Whether the same evidence will sustain the actions, or whether there is an identity in the facts, essential to the maintenance of the actions (Sps. ‘Mendiola v. CA, G.R No. 159746, 2012). Q: When is there conclusiveness of judgment? PAGE 42 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: Where there is identity of parties in the first and second cases but no identity of causes of action. Res judicata only applies if there is identity of ‘causes of action. Thus, ifthe first cause of action involves the entitlement to the de facto possession Of the property based on breach of contract it will not bar a subsequent ejectment complaint raising a different cause of action such as recovery of de facto possession grounded on tolerance (De Lean v. Dela Liana, G.R. No. 212277, 2014). Q: When is a counterclaim for partition not barred by prior judgment? ‘A: When there is no actual adjudication of ‘ownership of shares yet. Art. 494 of the Civil Code is an exception to Sec. 3, Rule 17 in that even if the order of dismissal for failure to prosecute is silent on whether or not itis with prejudice, it will be deemed to be without prejudice. The rights granted to co-owners under Art. 494 should prevail. But there can stil be res judicata once the respective shares of the co-owners have been determined with finality or if the court determines that partition is improper (such as when co- ‘ownership does not or no longer exists) (Quintos Vv, Nicolas, G.R. No. 210252, 2014) Q: When is judgment on the pleadings allowed? ‘A: Where an answer FAILS TO TENDER AN ISSUE, or otherwise ADMITS THE MATERIAL ALLEGATIONS of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (Rule 34, Sec. 1) Q: X filed a judicial separation of property against his wife, Y. X suggested a separation of conjugal property but Y refused and denied that the property in question is her paraphernal property. X filed a request for admission of the genuineness of the certified true copies of the complaint. Y failed to file her answer or response for this request. X filed a motion for judgement on the pleadings. Is a Motion for judgment on the pleadings the proper remedy? ‘A: No. Judgment on the pleadings is proper where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading. Summary judgment, on the other hand, will be granted if the pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is NO GENUINE ISSUE as to any material fact and that the moving party is entitled to a judgment as a matter of law. Here, there exists an ostensible issue in the pleadings. Y merely failed to tender an issue when she was not able to answer. (Adolfo v. Adolfo, G.R. No. 201427, March 18, 2015). Q: What is summary judgment? When is it proper? What are the bases of summary judgment? ‘A; The two types of summary judgment are: Summary judgment for claimant. — A party seeking to recover upon a claim, counterclaim, or cross-claim orto obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Rule 35, Sec. 1). ‘Summary judgment for defending party. — A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavit, depositions or’ admissions for a summary judgment in hs favor as to all or any part thereof (Rule 35, Sec. 2) : What is the rule when the case is not fully adjudicated on motion? A: If on motion under this Rule, judgment is not rendered upon the whole case or forall the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that ‘appear without substantial controversy, including the extent to which the amount of damages or other relief isnot in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, PAGE 43 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW and the trial shall be conducted on the controverted facts accordingly (Rule 36, Sec. 4). @: What is the rule on affidavits and attachments? ‘A: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is ‘competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Rule 35, Sec. 5). NOTE: Affidavits in bad faith, — Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the fling of the affidavits caused him to incur including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty of contempt (Rule 35, Sec. 6). Q: What is the difference between judgment on the pleadings and summary judgments? AL are cur Crete Cres Where an answer fails | A party seeking to to tender an issue, or | recover upon a claim, otherwise admits the | counterclaim, or cross- material allegations of | claim or to obtain a the adverse party's | declaratory relief may, pleading, the court] at any time after the may; on motion of that | pleading in answer party, direct judgment | thereto. has been fon such pleading. | served, move with However, in actions for | supporting affidavits, declaration of nullity or | depositions or annulment of marriage | admissions fora or for legal separation, | summary judgment in the material facts | his favor upon all or alleged inthe | any part thereof (Rule complaint shall always | 35, Sec. 1). be proved (Rule 34, Sec. 1) OR ‘A party against whom 2 daim, counterclaim, or cross-claim is asserted ora dectaratory relief is sought may, at any time, move with supporting afidavits, depositions or admissions fora ‘summary judgment in his favor as to all or any part thereof (Rule 35, Sec. 2) Q: What is rendition of judgment? The filing of the signed decision with the clerk of court (Riano, 2014, p. 583) NOTE: It is not the writing or signing of the judgment which constitutes rendition of the judgment. (Castro v. Malazo, 99 SCRA 164, 1980). ‘A case is deemed SUBMITTED FOR RESOLUTION upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court (Riano, p. 609; Philippine Constitution, Art Vill, Sec. 15). Even if the judgment has already been put in writing and signed, it is STILL subject to ‘amendment if it has not yet been filed with the Clerk of Court (Riano, p. 529, Ago v. Court of Appeals, 6 SCRA 530, 535) ‘A judgment is considered RENDERED upon the FILING of the signed decision with the Clerk of Court. (Ago v. Court of Appeals, 6 SCRA 530, 535). This includes an amended decision because ‘an amended decision is a distinct and separate judgment and must follow the established procedural rule. What is promulgation? rhe process by which a decision is published, officially announced, made known to the public or PAGE 44 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW delivered to the clerk of court for filing, coupled with notice to the parties or their counsel (Baldado v. Mejica, A.C. No. 9120, 2013). Can the SC decide a case on the merits even main case was already closed and terminated for being moot and academic? A: Yes. Ina case, not to reverse the decision of the CA would prejudice X because it would allow Y to claim possession despite the fact that the contract, on which it based its right has long since ‘expired (Pasig Printing vs Rockland Construction, GR. No. 193592, 2014). Q: What are exceptions to immutability of judgment? A: The doctrine of immutability of judgment has rot been absolute. Some of the exceptions are the following: (VUNC) 1. Void judgments 2. Whenever circumstances transpire after the finality of the decision that render its execution unjust and inequitable 3, Nunc pro tune entries that cause no prejudice to any party 4, Correction of clerical errors (University of the Philippines vs Dizon, G.R. No. 171182, 2012). ‘A supervening event is an exception to the execution as a matter of right of a final and immutable judgment rule, only if it directly affects the matter already litigated and settled, or substantially changes the rights or relations of the parties therein as to render the execution unjust, impossible or inequitable. The supervening event cannot rest on unproved or uncertain facts (Abrigo \. Flores, G.R. No. 160786, 2014), ‘The interested party may properly seek the stay of ‘execution or the quashal of the writ of execution, ‘or he may move the court to modify or alter the judgment in order to harmonize it with justice and the supervening event (Abrigo vs Flores, G.R. No. 160786, 2013). 'S. POST-JUDGMENT REMEDIES. 41, Motion for new trial or reconsideration Q: What are the grounds for a motion for reconsideration? ‘A: (DED) Damages awarded are excessive; 2. Evidence is insufficient to justify the decision or final order, and 3. Decision or final order is contrary to law (Rule 37, Sec. 1), Q: What are the grounds for a motion for new trial? (FAME & NDE) : A motion for new trial may be filed upon any of the following grounds: 1. Fraud, accident, mistake or excusable negligence 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 tral, and which if presented would probably alter the result (Rule 37, Sec. 1) NOTE: A new trial can be granted only 1. On motion of the accused; or 2. On motion of the court but with the consent of the accused (Rule 121, Sec. 1). Q: What are the requisites of newly discovered evidence? A 1. New evidence discovered after trial 2. It could not have been previously discovered and produced at the trial even with reasonable dliigence 3. Itis new and material evidence 4, If introduced and admitted, it would probably change judgment (Ybiemas vs. Tanco- Gabaldon, G.R.178925, 2011). NOTE: Newly discovered evidence need not be newly created evidence. It may and does commonly refer to evidence already in existence prior or during trial, but which could not have been secured and presented during the trial despite reasonable diligence on the part of the Iitigant (Tumang v CA, G.R. Nos. 8234647, 1989) Q: May an appeal be taken from the denial of a motion for reconsideration? ‘A: Yes, if the subject of the MR is a judgment or final order. PAGE 45 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘An order denying the motion for reconsideration of a decision is the final resolution of the issues a trial coutt earlier passed upon and decided. Thus, the notice of appeal fled against the order of denial is deemed to refer to the decision subject of the MR (Sps. Mendiola v. CA, G.R No. 159746, 2012). ‘The denial of a motion for reconsideration of an Corder granting the defendant's motion to dismiss is not an interlocutory order but a final order because it puts an end to the particular matter involved. Accordingly, the claiming party has a fresh period of 15 days from the notice of the denial within which to appeal the denial (Alma Jose v. Javellana, G.R. No. 158239, 2012). ea an ety ~ of a final order Denial of a motion een etd ec cer Not appealable via | Appealable via ordinary appeal; | ordinary appeal (Sps. certiorari is proper | Mendiola v. CA, G.R remedy No. 159746, 2012) Example: MR of an order denying bill of particulars Example: MR of an order of dismissal of a complaint ((Sps. Mendiola v. CA, G.R No. 159746, 2012) Q: What is the Fresh Period Rule: Neypes Rule? ‘A: A party shall have a FRESH PERIOD of 15 days to fle a notice of appeal to the RTC from receipt of the order denying a motion for new trial (or motion for reconsideration. This rule shall apply to Rules 40, 41, 42, 43 and 45 (Neypes v. CA, GR. No. 14124, 2005) and in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure (Yu vs. Tatad, G.R. No. 170979, 2011). Note: The period is 30 days if record on appeal is required. 2. Appeal Q: What is an appeal? : While an appeal in a criminal case throws the case wide open for review, in civil cases itis limited to the errors and grounds raised in the appeal (People v. Bagamano, G.R. No. 222658, 2016) Q: What are the basic guidelines regarding appeal? ‘A: The right to appeal is not a natural or inherent, right; itis not a part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with law (Polinsan v. People, G.R. No. 161827, 2008). : What matters are appealable? A: An appeal may be taken only from judgments, or final orders that completely dispose of the case (Bergomia v. CA,G.R. No. 189151, 2012). What matters are not appealable? A: (RID-CES-WP) 1. An order denying a petition for Relief or any similar motion seeking relief from judgment 2. An Interiocutory order, 3. An order disallowing or Dismissing an appeal; 4. An order denying a motion to set aside Judgment by Consent, confession or ‘compromise on the ground of fraud, mistake or duress, or any other ground vitating consent 5. An order of Execution; 6. 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 ending, unless the court allows an appeal therefrom: and 7. An order dismissing an action Without Prejudice (Rule 41, Sec. 1) Q: What are the available remedies in case there is no appeal? ‘A: The aggrieved party may file an appropriate special civil action as provided in Rule 65 (Rule 41, Sec. 1) : What is the nature of judgments or orders. that are subject to the performance of a condition precedent? A: They are not final until the condition is, performed. Before the condition 1s performed or the contingency has happened, the judgment is not effective and is not capable of execution. Such judgment contains no disposition at all and is a ‘mere anticipated statement of what the court shall PAGE 46 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW do in the future when a particular event should happen Q: What is the final judgment rule? ‘A: In those instances where the judgment or final order is not appealable because its interlocutory, the aggrieved party may file the appropriate special civil action under Rule 65, Q: What is the effect of noncompliance with the finality of judgment rule? A: The appellate court will be held to lack jurisdiction and the recourse is the dismissal of the appeal Q: What are the exceptions to the final judgment rule? & General Rule: Immediate review on appeal of judgments or orders which do not decide all Portions of a case Is disallowed by virtue of the final judgment rule. Exceptions: 1. Statutory exception - Example: Appeal from a partial judgment or order render 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. of allowed by the trial court 2. Discretionary exception - Supreme Court's plenary diseretion to accept or refuse invocations ofits appellate jurisdiction 3, Collateral order exception - The decision or order determines a matter collateral to the rights Underlying the action and which is too important to be denied review. This depends upon finding that the decision or order being appealed truly involves collateral matters and is a final determination of those issues, Example: When a party or counsel is charged for indirect contempt which is related to a principal action pending in court. Sec. 4, Rule 71 requires that the petition for contempt, which shall allege such connection with the pending action, should be docketed, heard and decided separately from the pending action. Ifthere is no consolidation, and the respondent is convicted, an appeal to the proper court may be taken immediately as in criminal cases. The immediate appeal Is allowed because the contempt incident was collateral to the main case and the conviction is a final determination of the issue of contempt. However, no immediate appeal is proper if the order of ccontemptis purely civil only to coerce compliance, ‘not punish). 4, Where immediate harm might occur to the appellant if review is postponed because the trial court's decision is such that it requires some immediate act by the parties that will be irremediable should later review suggest that it ‘was improperly ordered. What is the participation of the Solicitor ral during appeal? ‘The Solicitor General is the sole representative of the People of the Philippines in appeals before the CA and the Supreme Court, Failure to have a copy of a petition served on the People of the Philippines, through the OSG, is a sufficient ground for the dismissal of the petition as provided in Section 3, Rule 42 of the Rules of Court (People v. Duca, G.R. No. 171175, 2009). Q: What are the modes of appeal? Ordinary Appeal from MTC to RTC (Rule 40) Ordinary Appeal from RTC to CA (Rule 41) Petition for Review (Rule 42) Petition for Review on Certiorari (Rule 45) Appeal from QuasiJudicial Agencies to CA (Rule 43) wnennp Q: What is the period of appeal via notice of, appeal under Rules 40, 41, 42, 43 and 457 x PAGE 47 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 45 days or 30 days (| record on appeal is required) from notice of final judgment or final order Extendible for another 15 | days for the most ‘compelling reasons 416 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly fled in accordance with the governing law of the court or agency a quo Full payment of appeal fees within the period to appeal Non-extendible, but MRIMNT will trigger fresh period from receipt of order of denial CTEEEMRM GR: 15 days or 30 days (| MM record on appeal is WANE required) from notice of Only one (1) motion for final judgment or final order ly one (1) motion fo reconsideration shall be EXC: 48 hours for habeas allowed corpus cases | Extend for another 15 | days for the most compelling reasons with full payment of docket fees Full payment of appeal fees within the period to appeal Non-extendible, but : What isthe funetion of notice of appeal? MRIMNT wil tigger fresh | A: An appeal by notice of appeal is a mode that Period from receipt of order envisions the elevation of the original records to of denial the appellate court as to thereby OBSTRUCT the | trial court in its further proceedings regarding the | other parts of the case (Lebin v. Mirasol, G.R. No. 15 days from notice of 164255, 2011) decision Q: What is the rationale for allowing multiple appeals? Extendible for 15 days| A: The rationale behind allowing more than one upon proper motion and} appeal inthe same case is to enable the rest of the payment of the full amount | __case to proceed in the event that @ separate and of docket and other lawful | distinct issue is resolved by the court and held to fees and deposit for costs |__be final (Rovira v. Heirs of Deleste, G.R. No. before the expiration of the 160825, 2010). reglementary period : What issues are to be raised on appeal? difference arises as to the truth or the falsehood PAGE 48 OF 182ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW of alleged facts; or when the query necessarily invites calibration of the whole evidence considering mainly the credibly of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole and the probabilies ofthe situation (Sesbreno vs. CA, GR. No. 84096, 1995); (Cirtek Employees Labor Union vs. Girtok Electronics, inc, GR. No. 190515, 2011) 2. Questions of LAW — exists when the doubt or difference arises as to what the law is on certain state of facts (Sesbreno vs. CA, GR. No. 84096, 1995); (Cirtek Employees Labor Union vs. Cirtek Electronics, Inc., G.R. No. 190515, 2011). It also pertains to the legal consequences or effects ofthe law on a given set of facts, 3, MIXED Questions of Fact and Law Q: What issues are allowed to be raised for the first time on appeal? A: 41. Those affecting jurisdiction over subject matter. 2. Evidently plain and clerical errors within contemplation of law. 3. In order to serve ends of justice, 4, Matters raised in trial court having some bearing on issue which parties filed to raise or which lower court ignored. 5. Matters closely related to error assigned. (Sps. Mario and Julia Campos v. Republic, G.R. No. 184371, 2014). Q: What is the Harmless Error Rule in appellate decisions? A: The Court at every stage of proceedings must disregard any error or defect which does not affect, substantial rights of parties (Rule 51, Sec. 6). Q: What is the remedy from denial of motion to dismiss? A: General Rule: Appeal from decision. Exception: If ground for dismissal is lack of jurisdiction over the subject matter, the remedy should be certiorari from the order denying the motion to dismiss. (Boston Equity Resources, Inc vs. Court of Appeals, G.R. No. 173946, 2013) Q: Is the trial court’s order denying petitioner Republic's motion for reconsideration of the decision granting respondent Ortigas the authority to sell its property to the government appealable? A: Yes, since the order denying the motion for reconsideration is not an interlocutory order because it completely disposed of a particular matter. However, the Court of Appeals correctly dismissed Petitioner's appeal to the CA because the Republic used the wrong mode of appeal (Republic v. Ortigas, G.R. No. 171496, 2014). Q: Differentiate between the first and second paragraphs of Sec. 8, Rule 40, A: If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be remanded for further proceedings. (1* paragraph) If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and addtional evidence inthe interest of justice (Rule 40, Sec. 8). (2 paragraph) 48 2H Ne UCU] PAGE 49 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Prt Contemplates ‘an appeal from | Appeal from an an order of | order of dismissal of | dismissal of the MTC|the MTC but issued the case was without trial | tried on the of the case on | merits the merits Rule 41 (asiifit was originally filed in the RTC) ny Rule 42 Sot) FOR Lack of jurisdiction PISS Q: The counsel for petitioner filed the Notice of Appeal via a private courier, a mode of filing not provided in the Rules. When is the pleading considered filed? ‘A: Although not prohibited by the Rules, the date of delivery of pleadings to a private letter- forwarding agency is not to be considered as the date of fing thereof in court. Instead, the date of actual receipt by the court is deemed the date of filing of that pleading. Records show that the Notice of Appeal was mailed on the 15th day and was received by the court on the 16th day or one day beyond the reglementary period (Heirs of Miranda vs. Miranda, July 3, 2013) : What is not appealable under Sec. 1, Rule at? ‘A: What Sec 1, Rule 41 prohibits an appeal from an interlocutory order. An interlocutory order, Unlike a final judgment, does “not completely dispose of the case [because iteaves to the court} something else to be decided upon.” Appeals from interlocutory orders are generally prohibited to prevent delay in the administration of justice and to prevent “undue burden upon the courts.” Orders denying motions for reconsideration (MR) are not always interlocutory orders. When the MR Is on a final order, as when it is an MR of an order of dismissal of the complaint, it is considered an appeal from a final decision or order and thus appealabl: ‘The trial court's order denying petitioner's MR of the decision granting respondent the authority to sell its property to the government was not an interlocutory order because it completely disposes of a particular matter. An appeal from it ‘would not cause delay in the administration of justice (Republic v. Ortigas, G.R. No. 171496, 2014) Q: X filed a petition to claim attorney's fees for services rendered for Y. The RTC ruled granted the award to X, thus, Y filed a Notice of Appeal. ‘The RTC granted that Notice of Appeal, but on Motion for Reconsideration by X, alleging that the such Notice of Appeal failed to comply with the requirements of Rule 13 of the Rules of Court; failure to state material dates; contained deliberate suppression and omissions; and did not contain full names of the petitioners. The CA reversed the decision on the ground that the RTC by granting the Notice of Appeal had been perfected, and that the RTC had already been divested of jurisdiction. Whether or not there was reversible error by the CA ‘A: No. Since the case has not been made out for ‘multiple appeals — Rule 41, Sec. 2 of the Rules of Court — a record on appeal is unnecessary to perfect the appeal. The only requirement to perfect, the appeal in the present case is the filing of 2 notice of appeal in due time. Y complied with such, land the RTC had already decided with finality up to the appeal stage and is already in the execution stage. Hence, there is no reason why the original records of the case must remain with the trial court. As for the jurisdiction of the CA over the petition for certiorari the discretion on intially determining the sufficiency of a petition lies with the court before which petition was fled. As to compliance with Rule 13, Sec. 11, the Court has the discretion to relax the rules since they are mere tools designed to facilitate the attainment of justice. For the statement of material dates, such may be excused since the dates are evident from the records. For the oppression of documents. or pleadings, the Rules only state that such documents, pleadings or records should be relevant or pertinent to the assailed resolution, judgment or orders, where the sufficiency of such ig left with the CA. As to the caption, although it may not have individually specified the names, the PAGE 50 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW verification contained all the names and signatures. (Rovira v. Heirs of Jose C. Deleste, GR. No, 160825, March 26, 2010) When does Rule 42 apply? : Rule 42 applies when the case involves an appeal from an order of the RTC in its appellate jurisdiction (Rule 41, Sec. 2 & Lebin v. Mirasol, GR. No, 164255, 2011). Q; X filed an ojectment complaint against the ‘Municipality of Y. MTC decided in X's favor and ‘ordered the Municipality to vacate the property. The latter filed a notice of appeal but the MTC did not give due course thereto. Thus, the Municipality filed a petition for certiorari with the RTC. The RTC granted the Municipality's petition. X filed a Rule 42 petition with the CA. Is A correct? ‘A: No. Since the Municipality filed a petition tor certiorari instead of an appeal from the MTC's ‘order, X's remedy should be an appeal under Rule 41, not under Rule 42 (Heirs of Arturo Garcia v. Municipality of Iba, G.R. No. 162217, 2018). Q: The sole issue raised by petitioner Republic of the Philippines to the CA is whether respondent Ortigas’ property should be conveyed to it only by donation. This question involves the interpretation and application of ‘Sec. 50 of PD 1529. What is the proper mode of, appeal? ‘A: The issue raised before the CA was purely a question of law. The proper mode of appeal is through a petition for review under Rule 45. Hence, the Court of Appeals did not err in dismissing the appeal on this ground (Republic v. Ortigas, G.R. No. 171496, 2014), Q: Which court has jurisdiction to review final judgments or orders of the COA? ‘A: A judgment, resolution or final order of the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari Under Rule 64, Q: Which court has jurisdiction to review final judgments or orders of the COMELEC en banc? A: A judgment, resolution or final order of the ‘Commission on Elections may be brought by the ‘aggrieved party to the Supreme Court on certiorari under Rule 64, Q: Which court has jurisdiction to review final judgments or orders of the CSC? ‘A: Ajudgment, resolution or final order of the Civil Service Commission may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 64. Q: Which court has jurisdiction to review final judgments or orders of the Ombdusman? ‘A: The Court of Appeals, under Rule 43, has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative cases only. It cannot therefore review orders, directives or decisions of the Office of the Ombudsman in criminal and nonadministrative cases. For criminal cases, the ruling of the ‘Ombudsman should be elevated to the Supreme Court by way of Rule 65. (Indoyon vs. CA, G.R. No. 193706, 2013); (Tirol vs. Sandiganbayan, G. R. No. 135913, 1999); (Fabian vs. Desierto, G.R. No. 129742, 1998) 3, Petition for relief from judgment Q: What is a Petition for Relief from judgment? ‘A: A petition for relief from judgment is a remedy available ONLY to those PARTIES in the case which is only allowed in exceptional cases when there is NO OTHER AVAILABLE ADEQUATE REMEDY and for the following grounds ~ fraud, accident, mistake or excusable negligence. It is filed with the same court which rendered the judgment. Tuason v. CA, G.R. No. 116607, 1996). Q: What are the grounds for availing the remedy? ‘A: A petition for Relief may be filed based on the following grounds: 1, When a judgment or final order is entered into, ‘or any other proceeding is thereafter taken against the petitioner in any court through fraud, accident, mistake or inexcusable negligence; or 2. When the petitioner has been prevented from taking an appeal by fraud, accident, mistake or inexcusable negligence (City of Dagupan v. ‘Maramba, G.R. No. 17441, 2014). PAGE 51 OF 152ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW Q: What is the time to file a petition for relief of judgment? A: The pelition shall be flled within sixty (60) days after the petitioner leams of the judgment, final ‘order or proceeding, and NOT more than six (6) months after such judgment or final order was ‘entered, or such proceeding was taken (Rule 38, Sec. 3) 4, Annulments of judgment Q: What is a petition for annulment of judgment? A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered. Consequently, an action for annulment of judgment may be availed of even ifthe judgment to be annulled had already been fully executed or implemented (Bulawan v. Aquende, G.R. No. 182819, 2011; Diona v. Balangue, GR. No. 173559, 2013). Q: What kind of fraud is contemplated as a ground for annulment of judgment? ‘A: Extrinsic fraud (Sy Bang v. Sy, 604 Phi. 606, 625, 2009). @: Can gross negligence be equated to extrinsic fraud? ‘A: No. By its very nature, extrinsic fraud relates toa cause that is collateral in character. It relates to any fraudulent act of the prevailing party in litigation which is committed outside the trial of the case, where the defeated party has been prevented from presenting fully his side of the cause, by fraud or deception of his opponent. Even in the presence of fraud, annulment will not lie unless the fraud is committed by the adverse party, not by one’s own lawyer. In the latter case, the remedy of the client is to proceed against his own lawyer and not revitigate the case where judgment had been rendered (Pinasukan Seafood House v. FEBTC, G.R. No. 159926, 2014), Q: Can a judgment based on a compromise agreement be nullified because of extrinsic fraud? ‘A: No. A compromise agreement is a contract ‘whereby the parties make reciprocal concessions. to avoid litigation or to put an end to one already ‘commenced. Once it is approved by the RTC, it ceases to be a mere contract of the parties and is transformed into a final judgment. Ifthe ground of the respondent to assall the judgment based on the compromise agreement was extrinsic fraud, his action should be brought under Rule 47. Ifthe ground relied upon is extrinsic fraud, the action ‘must be filed within 4 years from the discovery of the extrinsic fraud; of the ground is lack of jurisdiction, the action must be brought before itis barred by laches or estoppel. This remedy could only be availed if the ordinary remedies of new trial, appeal, or petition for relief or other appropriate remedies are not available. In the present case, respondent could have availed of Rule 38, relict from judgment (Tung Hui Chung ‘and Tong Hong Chung v. Shih Chi Huang, G.R. ‘No. 170679, 2016) Grounds: 1. Extrinsic fraud 2. Lack of Jurisdiction 3. Lack of Due Process (under jurisprudence) T. EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS Q: How should a judgment be executed? Judgment should be executed on motion within five (5) years from entry; or by filing an independent action for revival of judgment after five years but before ten (10) years from entry. The Revived judgment may be enforced by motion five (5) years from date of its entry; or by action, after the lapse of five (5) years, before it is barred by the statute of limitations (Rule 38, Sec. 6) @: What must the judgment creditor accomplish within the 5-year prescriptive period in execution by motion? 1. The filing of the motion for the issuance of the uit of execution 2. The court's actual issuance of the writ Execution by independent action is mandatory if the five-year prescriptive period has already elapsed. However, it must be filed before it is barred by the statute of limitations, which is 10 years from the finality of judgment (Olongapo City v. Subic Water and Sewerage Co., Inc., G.R. No, 171626, 2014), PAGE 52 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @: When does execution of judgment by motion prescribe? General rule: In 5 years; If issued, valid until satisfied fully. Exception: When delay caused by actions of judgment debtor andior is incurred for his benefit ‘or advantage (Olongapo City v. Subic Water and ‘Sewerage, G.R. No. 171626, 2014). Q: Is execution a matter of right? ‘A: Execution is a matter of right on motion either upon judgment or order that disposes of the action (oF proceeding, upon expiration of the period to appeal therefrom and no appeal has been duly perfected, or when an appeal has been duly perfected and resolved with finality. (Rule 39, Sec. 0), Qi Is there discretionary execution? A: Yes in two instances. Execution of a judgment oF a final order pending appeal and execution of several, separate or partial judgments (Rule 39, Sec. 2). Q: What are the properties exempt from execution? A: 1. The judgment obligor’s family home as provided by law, or the homestead in which he resides, and the land necessarily used in ‘connection therewith; 2. Ordinary tools and implements personally used by him in his trade, employment, or livelihood; 3. Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation; 4, His necessary clothing and articles for ordinary personal use, excluding jewelry, 5. Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding 100,000 pesos. 6, Provisions for individual or family use sufficient for four months; 7. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000 pesos: 8. One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a fisherman and by the lawful use of which he ears his livelihood; 9. So much of the salaries, wages, or earnings of the judgment obligor for his personal services with 4° months preceding the levy as are necessary for the support of his family; 10.Lettered gravestones; 11.Monies, “benefits, privileges, or annuities ‘accruing or in any manner growing out of any lite insurance; 12.The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and 13.Properties specially exempted by law (Rule 39, Sec. 13) Q: What are the requirements to stay the ‘execution of judgment in plaintiff's favor in an ‘ejectment suit under Sec. 19, Rule 70? ‘A: The defendant must: (PSR) 1. Perfect an appeal 2. File a supersedeas bond 3. Periodically deposit the rentals becoming due during the pendency of the appeal Failure to comply with all would make the judgment immediately executory (Acbang v. Luczon, Jr, G.R. No. 164246, 2014). Q: What are the characteristics of execution pending appeal in ejectment cases? (Rule 70, sec. 21) ‘A: The judgment of the RTC against the defendant is immediately executory ‘The RTC’s duty to issue a writ of execution is not discretionary but ministerial and may be ‘compelled by mandamus. Rationale: To avoid injustice toa lawful possessor Nevertheless, the appellate court may stay the writ of execution should the circumstances so require. ‘Such judgment of the RTC is not stayed by appeal therefrom, unless otherwise ordered by the RTC. or, in the appellate court's discretion, suspended or modified Execution of the RTC's judgment under Sec. 21, Rule 70 is not governed by Sec. 2, Rule 39 but by Sec. 4, Rule 39 on judgments not stayed by appeal. Thus the general rule that the judgment of PAGE 53 OF 152ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW the RTC is stayed by appeal to the CA is not applicable (ATO v. CA, G.R. No. 173616, 2014). ey preety eee erent’ May be availed of in| May be availed of at the RTC only before | any stage of the the CA gives due | appeal to the CA (ATO course to the appeal |v. CA, GR. No. (ATO v. CA, G.R. No. | 173616, 2014), 173616, 2014) @: What are the requisites of execution A General Rule: Only final judgment may be executed. Exception: Execution of a judgment pending appeal (Diese! Construction Company v. Jollibee Foods, G.R. No. 136805, 2000) Requisites: (MGS) 1, Motion by the prevailing party with notice to the adverse party. 2. Good reason for execution pending appeal 3, Good reason must be stated in the special order (Navaresa’ v.COMELEC, GR No 157957, 2003). Q: What are considered good reasons? ‘A: Compelling circumstances warranting immediate execution for fear that favorable judgment may yield to an empty victory (GSIS v. Prudential, G.R. No. 165585, 2013). Q: Can GSIS funds and assets be subject to execution? es, because the exemption under Sec. 39 of RA 8261 does not deny private entities the right to enforce their contractual claims against GSIS. ‘GSIS may be held liable for the contracts it has entered into in_the course of its business investments, especially since the right of redress arose from a purely contractual relationship of a private character (GSIS v. Prudential Guarantoe & Assurance, Inc, G.R. No, 165585, 2016). 1: Does the execution of the judgment mean that the issues on appeal have become moot and academic? : No, The execution of the RTC judgment cannot be considered as a supervening event that would automatically moot the issues in the appealed case. Otherwise, there would be no use appealing ‘judgment, once a writ of execution is issued and salisfied. That situation would be absurd. ‘The Rules of Court provides for reversal or annulment of an executed judgment, where there ‘would be restitution or reparation. Thus, there is, Still possibilty of the appellate court's reversal of the appealed decision - even if already executed — and, consequently, of 2 restitution or a reparation (Carpio v. CA, G.R. No, 183102, 2013). Q: Against whom can a writ of execution be issued against? writ of execution can only be issued against a party and not to strangers to a case or those who did not have his day in court (Olongapo City v. Subic Water and Sewerage Co., Inc, G.R. No. 171626, 2014) is an appeal from the decision in an action for revival of judgment allowed? Yes. The party aggrieved may appeal the decision but only insofar as the merits ofthe action for revival is concerned. The original judgment, which is already final and executory, may no longer be reversed, altered, or modified (Heirs of Miranda v. Miranda, G.R. No. 179638, 2013) : What is the remedy of the third party claimant to prevent the inclusion of his property in the execution sale? a 1. Third party claim ~ atfidavit under Sec. 16, R39, 2. Separate action under Sec. 16, Rule 39 to vindicate his claim of ownership andior possession. In that action, he may secure an injunction to restrain the sale of the property (Arabay, Inc. v. Salvador, G.R. No L-31077, 1978) 3. Moti n for summary hearing AA third person whose property was seized may invoke the supervisory power of the court which authorized such execution. Upon due application PAGE 54 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful ‘owner or possessor. However, the court can only determine whether the sheriff has indeed taken hold of property not belonging to the judgment debtor. It does not and cannot pass upon the ‘question of title to the property, with any character of finality (Villasi v. Garcia, G.R. No. 190106, 2014), ‘The timing of the filing of the third party claim is important because it determines the remedies that a third party is allowed to file. He may vindicate his claim to the property in a separate action, because intervention is no longer allowed as judgment has already been rendered. He may also vindicate his claim by intervention because he has a legal interest in the matter in tigation (Fort Bonifacio Development Corp. v. Yllas Lending Comp., G.R. No. 158997, 2008). PAGE 55 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW V. PROVISIONAL REMEDIES ‘A. PRELIMINARY ATTACHMENT Q: What is preliminary attachment? A: Attachment is @ provisional remedy by which the property of an adverse party is taken into legal custody, either atthe commencement ofan action fr at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintif or any proper party (Olid v, Pastoral, G.R. No. 81120, 1990) ‘The attachment of the property of the defendant converts an ordinary action in personam into an action quasi in rem. In such case, jurisdiction over the person of the defendant is not required as long fas the court acquires jurisdiction over the res (Biaco v. Countryside Rural Bank, G.R. No. 161417, 2007). Q: What are the grounds for issuance of preliminary attachment? ‘A: The following are the grounds: (DEC-CR) 41. 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, elit, or quasi-delict against a party who is about to depart from the Philippines with the intent to defraud his creditors; 2. In an action for money or property embezzled oF fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an altomey, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, oF 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 oF disposed of to prevent its being found or taken by the applicant or an authorized person; 4. Inan 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, cr in the performance thereof 5. Inan action against a party who has removed or disposed of his property, oris about to do so, with intent to defraud his ¢reditors; and 6. In an action against @ party who does not {reside in the Philippines, or on whom summons may be served by publication (Rule 57, Sec. 1) NOTE: In grounds 1-5, fraud (in fraud of creditors, fraudulent detention or removal, embezzlement, etc.) is an essential requirement. NOTE: The fact that the applicants willing to post the attachment bond is not by itself a ground for the issuance of the writ of attachment. What are the requisites for the issuance of an order of wrt of preliminary attachment? 1. Affidavit To ensure that the applicant states the truth by requiring him to allege the presence of all the legal requirements under oath. The affidavit isthe foundation of the writ and if none be filed or one be filed wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are ‘ull and void (Callo-Claridad v. Esteban, G.R. No. 191567, 2013) The affidavit is the foundation of the writ and if none be filed or one be filed wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void (Jardine-Manila France v. CA, G.R. No. 55272, 1989). Contents of the affidavit a. Asufficient cause of action exists b. The case is one of those mentioned in Sec. 1, Rule 87 cc. There is no sufficient security for the claim ‘sought to be enforced by the action d. The amount due to the applicant is as much as the sum for which the order is granted above all egal counterclaims (Rule 57, Sec. 3). Itis not enough to state that a sulfcient cause of action exists. The applicant must state the facts, showing cause of action, To convince the court that the case is one of those ‘mentioned in Section 1 of the Rule, the applicant must state facts, i.e. place, time, date, to ilustrate the grounds for attachment relied upon. PAGE 56 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW bare allegation that an encumbrance of property is in fraud of creditors does not suffice. Factual bases for such conclusion must be clearly averred (Adlawan v Torres, G.R. No. 65957-58, 1994). ‘The amount due to the applicant must be as much as the sum for which the order is granted above all legal counterclaims, because if the adverse party has a counterclaim against the applicant, this may off-set the claim (See Rule 57, Sec 3). 2. Attachment Bond — Executed in favor of the adverse party in an amount fixed by the court, the bond is conditioned to pay all the costs, which vill be adjudged the adverse party and all damages he may sustain ifthe court should later rule that the applicant is not entitled to the attachment (See Rule 57, Sec. 4). ‘The surety is liable for all damages and not only for damages sustained during the appeal as this is its commitment (Phil. Charter Ins. v CA, GR. No. 88379, 1989). ‘The writ will not be issued if a real estate mortgage exists to secure the obligation, (Salgado v. Court of Appeals, G.R. No. 55381, 1994) Q What is required prior to execution or implementation of a writ of attachment? rt 1. Prior or contemporaneous service on defendant of summons, writ of attachment, copy of the complaint, application for writ of Pl, attachment bond, and order granting the writ ‘Absence of summons renders the court unable to act on or implement the writ of attachment (Sievert case) and any such implementation will be void, Note: While writ of attachment can be ISSUED ex parte, it cannot be IMPLEMENTED without service of summons, ete. B, PRELIMINARY INJUNCTION, Q: What is preliminary injunction? A: Ibis an order granted at any stage of an action ‘r proceeding before the judgment or final order, requiring a party or a court, agency or person to: Refrain from a particular act or acts (prohibitory injunction); or 2. Perform a particular act or acts (mandatory injunction) (Rule 58, Sec. 1). Q: What is its purpose? ‘A; Injunction is resorted to only when there is @ pressing necessity to avoid _ injurious consequences which cannot be remedied under any standard compensation. The sole objective of ‘a writ of preliminary injunction is to preserve the status quo until the merits ofthe case can be heard. fully (Unilever v CA, G.R. No. 119280, 2006). Right of applicant to the injunction must be clear and unmistakable, Q: What is a Temporary Restraining Order? ‘A: Itis a temporary or provisional order to maintain the subject of controversy in status quo until the hearing of an application for a temporary injunction. Unlike the injunction, itis intended as a restraint upon the defendant until the propriety of granting an injunction pendente lite can be determined, and it goes no further than to preserve the status quo Until such determination. Accordingly, the grant, denial, or lifting thereof does not in any way pre- ‘empt the court's power to decide the issue in the ‘main action which is the injunction suit (Regalado 2008 ed). ‘The court to which the application for preliminary injunction was made may issue a TRO, effective for 20 days from notice to the party or person sought to be enjoined, ifit shall appear from 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, Meanwhile, the executive judge of a mutiple-sala court or the presiding judge of a single-sala court may issue ox parte a TRO effective for seventy- two (72) hours from issuance if ‘a, The matter is of extreme urgency; and b. The applicant will suffer grave injustice or irreparable injury (Rule 58, Sec. 5) PAGE 57 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: What are the procedural requirements for the issuance of a writ of preliminary injunction or temporary restraining order? A: (VERB NH) 41, There must be a verified application; 2. The application must show facts entiting the applicant to the relief demanded: 3. A.bond must be filed, unless exempted in the court where the action is pending; and 4, Prior notice and hearing for the party/persons sought to be enjoined (Rule 58, Sec. 4), except in cases of 72 hour TRO, which can be issued ex parte. Q: What are the substantive requisites for the issuance of a writ of Pl or TRO? A 4. Clear and unmistakable legal right 2. Actual or imminent and material violation of ‘such right; 3. Grave and irreparable injury ifthe acts are not restrained, What Is grave and irreparable injury? : Capable of pecuniary estimation; andlor even if capable of pecuniary estimation, where redress at law for damages cannot adequately compensate the plaintiff because the damage is so frequent, continuous or recurring. Q: Is the writ of injunction proper to restrain foreclosure of mortgage in a case where respondents principally feared the loss of the mortgaged properties, and faced the possibility of a criminal prosecution for the post-dated checks they issued? A: No. Such fears did not constitute the requisite irreparable injury, because ultimately the amount to which the mortgagee-bank shall be entitled will be determined by the RTC’s disposition of the case (Bank of the Philippine Islands vs. Hontanosas, G.R. No, 15761325, 2014). Q: Can courts issue writs of prohil injunetion in order to enjoin or restrain any criminal prosecution? ‘A: As a general rule, no. But there are extreme cases in which exceptions to the general rule have been recognized, including: 1. When the injunction is necessary to afford adequate protection to the constitutional rights of the accused; 2. When it is necessary for the orderly administration of justice or to avoid oppression ‘or multiplicity of actions; 3. When there is a prejudicial question that is sub juice; 4. When the acts of the officer are without or in excess of authority 5. When the prosecution is under an invalid law, ordinance, or regulation; 6. When double jeopardy is clearly apparent; 7. When the court has no jurisdiction over the offense; 8. When it is a case of persecution rather than prosecution; 9. When the charges are manifestly false and ‘motivated by the lust for vengeance; and 10.When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Bank of the Philippine Islands vs Hontanosas, G.R. No. 18761325, 2014). : In stressing that the RTC is bereft of jurisdiction to entertain the injunction case, the Republic avers that it is the POEA which has original and exclusive jurisdiction to hear and decide all pre-employment cases which are administrative in character involving or arising out of violations of recruitment regulations, or violations of conditions for the issuance of license to recruit workers. Is this correct? ‘A: No, The RTC can take cognizance of the injunction complaint, which "is a suit which has for its purpose the enjoinment of the defendant, perpetually or for a particular time, from the ‘commission or continuance of a specific act, or his ‘compulsion to continue performance of a particular fact” Actions for injunction and damages lie within the exclusive and original jurisdiction of the RTC pursuant to Section 19 of Batas Pambansa Big. 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by RA 7681. (Republic v. Principalia Management, G.R. No. 198426, September 2, 2015}, PAGE 58 OF 152,ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW RECEIVERS! Q: What is receivership? ‘A: Receivership is aimed at the preservation of, and at making more secure, existing rights. It cannot be used as an instrument for the destruction of those rights (Arranza v. B.F. Homes, Inc., 33 SCRA 799, 2000). Property subject of receivership must be under litigation (See Rule 59, Sec. 1 & Raila v. Alcasid, GR. No. L-17176, 1962). ‘The purpose of Receivership is to protect and reserve the rights of the parties during the pendency of the main action, during the pendency ‘of an appeal, or as an aid in the execution of a judgment when the writ of execution has been retumed unsatisfied (Rule 59, Sec. 1) Q: What are the rules on the appointment of a receiver? ‘A: Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: 1. When it appears from the verified application and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject ofthe action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured Unless a receiver be appointed to administer and preserve it 2. When it appears 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 to the satisfaction of the judgment or otherwise cary the judgment into effect; oF 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 the property in litigation, Sec. 1(d), Rule 59 of the Rules of Court is couched in general terms and broad in scope, encompassing instances not covered by the other grounds enumerated under the said section. Courts must remain mindful of the basic principle that receivership may be granted only when the circumstances so ‘demand, either because the property sought to be placed in the hands of a receiver isin danger of being lost or because they run the risk of being impaired, and that being a drastic and harsh remedy, receivership must be granted only when there is a clear showing of necessity foritin order to save the plaintiff from grave and immediate loss or damage (Tantano v. Caboverde, G.R. No. 203585, 2013) During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said ccourt (Rule 89, Sec. 1). D.REPLEVIN : What is replevin? ‘A: Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, Le. to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintf to retain the thing during the pendency of the action and hold it in pendente lite (Tillson v. Court of Appeals, 197 SCRA 587, 1991). The action is primarily possessory in nature and determines nothing more than the right of possession. Replevin is so usually described as a mixed action, being partly in rem and partly in personam, is primarily recovery of specific property is concemed, and in personam as regards to damages involved. Replevin is so PAGE 59 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW usually described as a mixed action, being partly in rem and partly in personam or of his having a special interest therein (BA Finance Corporation v. Court of Appeals, 258 SCRA 102, 1996). Q: X filed a case of Recovery of Possession with Prayer for Replevin against Y, X then appointed Z as his agent to sell the subject vehicle, surrendering to Z all documents of title. Z sold the vehicle to another person. Will the case prosper? AA: Itwill not. Rule 60 allows a plaintif in an action for the recovery of possession of personal property, to apply for a writ of replevin ifit can be shown that he is the owner of the property claimed or is entitled to the possession thereof. In this, case, when X authorized Z to sell the vehicle and Z subsequently sold the vehicle, X ceased to be the owner of the vehicle and also lost his right of possession over it. Hence, X may no longer seek ‘a retum of the same through replevin. For a writ of replevin to prosper, plaintiff must show that he is entitled to possession over the thing. (Wiliam Siy v, Alvin Tomlin, G.R. No, 205998, April 24, 2017). Note however that ownership is not necessary; as long as plaintiff can show entitlement to possess. PAGE 60 OF 182ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Vi. SPECIAL CIVIL ACTIONS: ‘AL INTERPLEADER Q: What is an interpleader? A: An interpleader is a remedy whereby a person who has property whether personal or real, in his possession, or an obligation to render wholly or partially, without claiming any right in both, or laims an interest which in whole or in part is not disputed by the conflicting claimants, comes to ccourt and asks that the persons who claim the said property or 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 one or the other thing (Ocampo v. Tirona, G.R. No. 147812, 2008) (Ono must distinguish between a double liability or recovery and double vexation because the remedy is afforded not to protect a person against a double liability or recavery but to protect him against a double vexation in respect of one liability. (Belo ‘Medical Group, Inc. v. Santos, G.R. No. 185894, ‘August 30, 2017) What are the requisites for interpleader? There must be two or more claimants with adverse or conflicting interests to a property in the custody or possession of the plaintiff; 2. The plaintif in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants; 3. The subject matter of the adverse claims must be one and the same; and 4. The parties to be interpleaded must make effective claims (Rule 62, Sec.1). ECLARATORY RELIEF. What is an action for Declaratory Relief? ‘A: An action brought by any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, for any other governmental regulation in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for ‘a declaration of his rights or duties thereunder before breach or violation is committed. What are its requisites? (ALR) . There must be a justiciable controversy; ‘The controversy must be between persons whose interests are adverse; 3. The party seeking declaratory relief must have a legal interest in the controversy; and 4, The issue involved must be ripe for judicial determination (CJH Development vs. BIR, G.R. No. 172457, 2008). Q: Is declaratory relief a proper remedy for decisions of quasi-judicial agencies? : No. In the same manner that court decisions cannot be the proper subjects of a petition for decaratory relief, decisions of quasi-judicial agencies cannot be subjects of a petiton tor declaratory reli forthe simple reason that ita fons of law or of fact it may avail of th Thus, a decision of the BSP Monetary Board, issued pursuant to its quastjudicial powers, cannot be a proper subject for declaratory relief. (Monetary Board v. Philppine Veteran Board, GR. No. 189571, 2015) Q: Children A, B and C are descendants of X by his first wife while D is a descendant by X's second wife. An OCT registered in the name of the second wife covered a land in Leyte. X appeared as the owner of the land in its tax declaration and that a free patent was issued in the name of the second wife's heirs. A certain 3" person claims exclusive ownership of the land alleging that such land has been sold to him by the second wife's heir, D after the former died. A, B, and C, on the ground that D had no right to sell a portion of the land filed an action to quiet the title. Should the quieting of title apply in this case? A: No. The issues in @ case for quieting of te are fairy simple; A etal need to prove only two things, namely: (1) the plaintiff or complainant has a legal or an equitable tile to or interest in the real property subject of the action; and (2) that the deed, claim, encumbrance or proceeding claimed tobe casting a cloud on his title must be shown to be in fact invalid or inoperative despite its prima PAGE 61 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW facie appearance of validity or legal efficacy. It is evident from the title that the land belongs to no other than the heirs of the second wife. The land could not have belonged to X, because he is not ‘even named in OCT. With greater reason may it be said that the land could not belong to A et.al, who are X's children by his first wife. Unless the first wife and second wife were related by blood ‘such fact is not borne out by the record they could not be heirs to each other. (Chung vs. Mondragon G.R. No. 179754, November 21, 2012) Q: X filed an action for quieting of title before the RTC. The assessed value of the land is merely 1,230.00. Does the RTC ha jurisdiction over the case? ‘A: YES. On the question of jurisdiction, itis clear under the Rules that an action for quieting of title may be instituted in the RTCs, regardless of the assessed value of the real property in dispute, Under Rule 63 of the Rules of Court, an action to Quiet tile to real property or remove clouds therefrom may be brought in the appropriate RTC. (Sps. Clemencio C. Sabitsana v. Juanito F. Muertegui Del Castillo, J, GR. No. 181359, ‘August 05, 2013) ITION, AND CERTIORARI, PRO! MANDAMUS 1. Certiorari Q: What is a Writ of certiorari? ‘A: A writ directed against any tribunal, board, or officer exercising judicial or quasi-judicial functions, to annul or nul a proceeding because the entity or person either acted withoutin excess Of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, by @ person who has no appeal, nor any plain, speedy, land adequate remedy in the ordinary course of law (Rule 65, Sec. 1) Q: What is the nature of Certiorari? ‘A: A petition for certiorari is a special civil action/original action and not a mode of appeal. The sole office of a certiorarl Is the correction of errors of jurisdiction, including the commission of grave abuse of discretion amounting to lack of jurisdiction and does not include correction of public respondent's evaluation of the evidence and factual findings based thereon (Riano, 2016). Q: What is the purpose of Certiorari? A: That the judgment, order, or resolution subject. of the petition for certiorari be annulled or modified (Rule 65, Sec. 1). What are the requisites of a valid Certiorari? Tribunal, board, or officer exercises judicial or quasi-judicial functions; b. Tribunal, board, or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and c. There is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law (Rute 65, Sec. 1) : What are the grounds? : That the public respondent acted either with Lack of jurisdiction Excess of jurisdiction Grave abuse of discretion amounting to lack or ‘excess of jurisdiction (Rule 65, Sec. 1) eNepp @ Why Is a motion for reconsideration required before certiorari can be filed? ‘A: General Rule: Its purpose is to grant an ‘opportunity for the court to correct any actual or perceived error attributed to it. Exceptions: (When MR not required) 1, Where the order is a patent nullity, as where the court a quo has no jurisdiction 2. Questions raised have been raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court 3. Urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or the petitioner or the subject matter of the action is perishable ‘Amation for reconsideration would be useless Petitioner was deprived of due process and there is extreme urgency for relief 6. In actiminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable 7. The proceedings in the lower court are a nullity for lack of due process PAGE 62 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 8. The proceedings was ex parte or in which the petitioner had no opportunity to abject 9. Issue raised is purely of law or where public interest is involved 10. Judicial intervention is urgent ‘1.ts application may cause great and ireparable damage 12.Failure of a high government official from whom relief is sought to act on the matter 19.The issue of non-exhaustion of administrative remedies has been rendered moot 14.Special circumstances warrant immediate and ‘more direct action (Republic v. Bayao, G.R. No. 179492, 2013). Considering that the matter brought to the CA — whether the act complained against justified the filing of the formal charge for grave misconduct ‘and. the imposition of preventive suspension ending investigation — was a purely legal question, the defendant had no need to ‘exhaust the available administrative remedy of filing the motion for reconsideration (Garcia v. ‘Molina, G.R. No. 165223, January 11, 2016). Q: Is a motion for reconsideration still required before a petition for certiorari may be instituted even if it is prohibited by the agency? A: Yes. While a government agency may prohibit altogether the filing of a motion for reconsideration with respect to its decisions, the fact remains that certiorari requires the filing of a motion for reconsideration, which isthe tangible representation of the opportunity given to the office to correct itself. Thus, regardless of the proscription against the fling of the motion for reconsideration, it may be filed on the assumption that rectification of the decision or order must be obtained, and before a petition for certiorari may be instituted (Philtranco Service Enterprises v. Philtranco Service Union, GR. No. 180962, 2014), 2: Is certiorari the proper remedy for assailing an order GRANTING a motion to dismiss? ‘A: No. The proper remedy is to file an appeal. fled an action for quieting of tile. Y filed a motion. to dismiss. The RTC granted the said motion. X filed a motion for reconsideration, but the RTC. denied the same. X assailed the dismissal via petition for certiorari. The Court held that the order {granting Y's motion to dismiss was a final and not an interlocutory order, against which the proper remedy was an appeal. Certiorarl is not a substitute for appeal (Heirs of Sps. Teofilo M. Reterta v. Sps. Lorenzo Mores, G.R. No. 159941, 2011). Q: Is certiorari the proper remedy for assailing an order DENYING a motion to dismiss? A: Yes. The denial of a motion to dismiss is not appealable since it is merely an interlocutory order. However, while a petition for certiorari may be filed, it must satisfy the requirements that the assailed denial is issued without jurisdiction, or with excess of jurisdiction, orin grave abuse of discretion amounting to lack of excess of jurisdiction (Banez v. Concepcion, GR. No. 159508, 2012). (Also, the proper remedy, technically is prohibition) ‘The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65, provided that the interlocutory order is rendered without or in excess. of jurisdiction or with grave abuse of discretion (Aranas v. Mercado, G.R. No. 156407, 2014). Q: Does the CTA have jurisdiction over a certiorari assailing an interlocutory order issued by the RTC in a local tax case? A: Yes. The authority of the CTA js included in the powers granted by the Constitution as well as inherent in the exercise of its appellate jurisdiction. Ntwould be more logical to conclude that the grant of appellate jurisdiction to the CTA over tax cases: filed in and decided by the RTC carries with it the power to issue a writ of certiorari when necessary in aid of such appellate jurisdiction (City of Manila v. Cuerdo, G.R. No, 175723, 2014). ‘The CA's original jurisdiction over a petition for certiorari assailing the DOJ resolution in a preliminary investigation involving tax and tariff offenses was transferred to the CTA (Bureau of Customs v. Hon. Devanadera, G.R. No. 193253, 2018). Q: Does the fresh period rule apply to a petition for certiorari under Rule 647 ‘A: No. The fresh period rule does not apply to a petition for certiorari under Rule 64 as itis not akin PAGE 63 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW to a petition for review brought under Rule 42; hence, the period to file a Rule 64 petition should not be reckoned from the recelpt of the order denying the motion for reconsideration or the ‘motion for new trial. Pursuant to Sec. 3, Rule 64, it hhad only 5 days from receipt of the denial of its motion for reconsideration to file the petition Therefore, since X received the decision denying its motion on July 14, 2014, it had only until July 19 to file the petition (Fortune Life Insurance Company, Inc. v. COA Proper, G.R. No. 213525, 2018). 2. Prohibition Q: What is a Writ of Prohibition? ‘A: A writ directed against any tribunal, board, or officer exercising judicial or quastjudicial or ministerial functions, to desist from further proceeding in the action or matter specified because the entity or person either acted withoutin excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, by a person who has no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law (Rule 65, Sec. 2). @: What are the requisites of a Valid Prohibition? A a. There must be a controversy, b. Respondent is exercising juc judicial, or ministerial functions, 1, quasi . Respondent acted without or in excess of jurisdiction, or acted with grave abuse of discretion; and d. There must be no appeal or other plain, speedy, and adequate remedy (Rule 65, Sec. 2). : What is the purpose of Prohibition? ‘A: A petition for prohibition is intended to prohibit or prevent FUTURE acts done without authority or jurisdiction, and is not proper for acts already accomplished, Exceptions: In specific cases wherein the SC allowed a writ of prohibition even when the act is already fait accompli 1. Where it would prevent the creation of a new province by those in the corridors of power who could avoid judicial intervention and review by merely speedily and steathly completing the commission of such ilegalty (Tan v. Comelec GR. No, 73156, 1986). 2. Where it would provide a complete relief by not only preventing what remains to be done but by undoing what has been done, such as terminating a preliminary investigation instead of fling @ motion to quash (Aurillo v. Rabi, G.R ‘No. 120014, 2002) 3. Where the acts sought to be enjoined were performed after the injunction suit is brought (Versoza v. Martinez, G.R. No. 119511, 1998) 3. Mandamus Q: What is a Writ of Mandamus? : A writ directed against any tribunal, corporation, board, or officer who unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment ofa right or office to which such is entitled forit to do the act required to be done to protect the rights of the petioner and to pay damages. because the entity or person either acted withoutin excess of jurisdiction, or with ‘grave abuse of discretion amounting to lack or ‘excess of jurisdiction, by a person who has no ‘appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law (Rule 65, See. 3) What are the grounds for Mandamus? he officer had an imperative duty to perform the act required and the officer unlawfully neglects the performance of the duty enjoined by law (Rule 65, Sec. 3 & Eng v. Lee, G.R. No. 176831, 2010). : What are the exceptions to the rule on exhaustion of administrative remedies? . Where the order questioned is a patent nullity; 2. Where the questions raised in the certiorari proceeding have already been duly raised and passed upon by the lower court or are the same as those raised and passed upon in the lower court; 3. Where there is an urgent necessity for the resolution of the question; 4, Where an MR would be useless or is prohibited; 5. Where petitioner is deprived of due process; PAGE 64 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 6. Where, in a criminal case, relief from an order of arrestis urgent and the granting of such relief by the trial court is improbable; 7. Where the issue raised is one purely of law or where public interest is involved; 8, Where the proceedings in the lower court are a nullity for lack of due process; 9. Where the proceeding was ex parte or in which the petitioner had no opportunity to object; and. 10.Where the subject matter of the action is perishable (Nuque v. Aquino, G.R. No. 193058, 2018). @: When is Mandamus available to a discretionary duty? A: Act sought to be performed involves the exercise of discretion, respondent may only be directed by mandamus to act but not to actin one way or another. Available to compel action, when refused, even in malters involving judgment and discretion, but not to direct the exercise of judgment in a particular matter. When there is gross abuse of discretion, manifest injustice, or palpable excess of authority. (Riano, 2016 citing Dejuras v. Villa, G.R. No. 173428, 2010; MA Jimenez Enterprises v. Ombudsman, GR. No, 155307, 2011). D. QUO WARRANTO What is quo warranto? Nature of a quo warranto proceeding: Itis a direct, not a collateral attack, on the matter assailed. 2. Itis a proceeding against a public officer, not in his official capacity, because no oficial power of right or duty is sought, but because the officers of authority. but not to direct the exe. 3. Itis a proceeding of a public nature filed by a prosecuting attomey ex officio such as by the Solicitor General or fiscal. (But itis personal in nature as to the person claiming office.) (Topacio v. Ong, G.R. No. 179895, 2008). Q: A: 1 Q: To whom may the action for quo warranto be filed? A: The action is brought against: 1. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; 2. A public officer who does or suffers an act which, by the provision of law, constitutes a {ground for the forfeiture of his office; or 3. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act (Rule 66, Sec. 1). : Is quo warranto a valid remedy to remove an impeachable officer? A: Yes. While the Constitution mentions the list of impeachable officers, the wording of provision implied that impeachment is not the only remedy for removing said officers. (Republic v. Sereno, G.R. No. 237428, 2018) E. EXPROPRIATION Q: What is expropriation? A: Itis a process by which the power of eminent domain is carried out; taking as of private owned property, by government under eminent domain (Barangay Sindalan v. CA, G.R. No. 150640, 2007). Q: What are the two stages in an action for Expropriation? A Stage 1: Determination ofthe plainti’sauthoriy to exercise the power of eminent domain and the propriety ofits exercise in the context of the facts involved in the suit Stage 2: Determination by the court of the just ‘compensation for the property sought to be taken (Suguitan v. City of Mandaluyong, 123 SCRA 73, 2000). Q: What is the scope of expropriation? ‘A: Expropriation is not limited to the acquisition of real property with a corresponding transfer of ttle or possession. The right-of-way easement resulting in a restriction or limitation on property rights over the land traversed by transmission lines also falls within the ambit of the term “expropriation” (National Power Corporation vs. Vda. De Capin, G.R. No. 175176, 2008). F. FORECLOSURE OF REAL ESTATE MORTGAGE PAGE 65 OF 152ATENEO CENTRAL BAR OPERATIONS 2018. REMEDIAL LAW What ls foreclosure of real estate [—T wihovor Tear] mortgage? (General Banking | [A: Forecosure isa procedure by which the holder | Law, Se.47) | ‘of a mortgage — an interest in land providing Morigagee can move | Mortgagee has to fle | security for the performance of a duty or the | for deficiency | a separate action to | payment of a debt — sells the property upon the judgment in the same | recover any | failure ofthe deblor to pay the morgage debt and, | deficiency | thereby, terminates his orherrighsin the propery | Buyer at pubic | Buyer at public (West's Encyclopedia of American Law, 2d ed) auction becomes | auction becomes absolute owner only | absolute owner only Q: What are its requisites? after confirmation of | ater finality of an A: The following are the requisites: the sale action for 4. A finding of the amount due the plain consolidation of, including interest, cost, and other charges ‘ownership approved by the court; Worigagee need not | Mortgage fs given @ 2, Order to defendant to pay said amountwithina | be given’ a special | special” power of period of not less than ninety (90) days nor | powsrofattomey | attomey in the more than 120 days from entry of judgment mortgage contract {equity of redemption}; and foredose the 2. Ifthe defendant defuits, the court should order mortgaged propertyin the sale at public auction of the mortgaged case of default property (Sec. 2, Rule 68). istinguish between equity of redemption : Distinguish between judicial and extra- and right of redemption, Judicial foreclosure. x y Ena roe aU TS Sere feral esate elke Ore Equity of the | Prerogative or right to (Act No. 3135) defendant mortgagor | reacquire mortgaged 'No complaint is filed. to extinguish the | property after No cour intervention mortgage and retain | registration of the There is a right of ownership of the | foreclosure sale redemption property by paying the ‘Mortgagor has a right | secured debt within ‘Complaint is fled with the cours | There is only an equity of redemption, No right of redemption except when | of redemption for one | the 90-120 day period mortgagee isa year from registration |_| get by the court after banking institution; | of the sale (except| | the judgment | equity of redemption | where the mortgagee becomes final (Rule is 90 to 120 days, and | is a bank and the 68, Sec. 2 J any time before confirmation of foreclosure sale mortgagor isa Juridical entity, the right to redeem may be exercised unti, but not after, the registration of the certificate of salefforeclosure with the Register of Deeds, which inno case shall be more than three (3) months after the foreclosure, PAGE 66 OF 152 fhat is partition? ‘A: Pattition is the separation, division and assignment of property held in common among co- ‘owners in proportion to their respective interests in the said property (Marasigan v. Heirs of Marasigan, G.R. No. 156078, 2008). Exception: Where the mortgagee is a bank, the right of redemption may be exercised within 1 year after the sale of the property (General Banking Law of 2000, Q: Who has jurisdiction over an action for partition?ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW : The Municipal Trial Court has jurisdiction to take cognizance of real actions or those affecting title to real property, or for the recovery of possession, of for he partition or condemnation of, or foreclosure of a mortgage on real property Where the assessed value of the property or interest therein does not exceed Php 20,000, or if in Metro Manila, where the assessed value does not exceed Php 50,000. If the value exceeds the foregoing amounts, the Regional Trial Court shall have jurisdiction (Barrido v. Nonanto, G.R. No. 176492, 2014). Q: What are the instances when a co-owner ‘may not demand partition? ‘A: (ADITPU) 1. Existence of an agreement among co-owners to retain the property undivided for not exceeding ten (10) years; 2. When co-owners are prohibited by the donor ‘or testator for a period not exceeding twenty (20) years; 3. When partition is prohibited by law: (Civil Code, Art. 494) and 4, When the property is NOT subject to a physical division and to do so would render it unserviceable for the use which itis unintended (Civil Code, Art. 495). Q: Who may file? ‘A: The action shall be brought by the person who has a right to compel the partion of real estate (Rule 69, Sec. 1) or of an estate composed of Personal property, or both real and personal property (Rule 69, Sec. 13), i.e. a co-owner. H,EJECTMENT Q: What is forcible entry? A: The possession of the defendant is illegal from the very beginning having deprived the actual possessor of his possession by: (FISTS) 1, Force, 2. Intimidation, 3. Strategy, or 4. Threat, 5. Stealth (Rule 70, Sec. 1) Q: What are the requisites for Forcible Entry? (PD) A: 4. Plaintiff had prior physical possession of the property; and 2. Defendant deprived him of such possession by FISTS (Abad v. Farrales, G.R. No. 178635, 2011). Q: What is unlawful detainer? ‘A: The possession of the defendant is legal in the beginning which, however, subsequently becomes illegal because of the: (ED) 1 expiration or termination of the right to have possession, by virtue of any contract, express cr implied, 2. and after a demand to vacate was not heeded by the defendant (Rule 70, Section 1 of the Rules of Cour). What are its requisites for unlawful er? (CNR1) =pep Possession of property by the defendant was bby contract with or by tolerance of the plaintiff; 2. Such possession became illegal upon notice by plaintiff to defendant of the termination of the latter's right of possession; 3. The defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof, 4. Within one (1) year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment (Romulo v. Samahang Magkapitbahay ng Bayanihan Compound Homeowners Association, Inc., GR. No. 180687, 2010), Q: In an appeal from the judgment of the MTC in an unlawful detainer case, is there a trial de novo in the RTC? ‘A: No. Under Sec. 18, Rule 70, the RTC shall decide the appeal on the basis of the entire record of the proceedings had in the MTC and such memoranda as may be submitted by the parties. ‘Thus, RTC erred in ordering the relocation and verification survey “in aid of its appellate jurisdiction” and by hearing the testimony of the surveyor, for its doing so was tantamount to its holding of a trial de novo (Manalang v. Bacani, GR. No, 156995, 2015) Q: Is a boundary dispute a proper subject of Rule 707 PAGE 67 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW A: No. A boundary dispute cannot be settled summarily under Rule 70, the proceedings under ‘which are limited to unlawful detainer and forcible entry (Manalang v. Bacani, G.R. No. 156995, 2018) Q: What is the nature of possession required ejectment cases? ‘A: Possession in efectment cases means nothing more than actual physical possession, not legal possession. A party who can prove prior physical possession can recover such possession even against the owner himself. f he has in his favor prior possession in time, he has the security that entitles him to remain on the property until a person with a better right lawfully ejects him (Calingasan v. Rivera, G.R. No. 171855, 2013). @: Is an action for recovery of physical possession of real property extinguished by the death of a party? A: No. It is a real action and is thus not ‘extinguished by the death of a party. Such death will not render moot the forcible entry case (Calingasan v. Rivera, G.R. No. 171558, 2013). Q: What is contempt? ‘A: Contempt is disobedience and utter disregard to the court by acting in opposition to its authority, justice and dignity. It also includes conduct, which tends to bring the authority of the court and the administration of law into disrepute or in a manner which impedes the due administration of justice (Siy v. National Labor Relations, Commission, G.R. No. 158971, 2008). Q: What is the remedy if a person is cited in contempt of Court? ‘A: Contempt in facie curiae Remedy is certiorari prohibition (NOT appeal) and filing of such petition for certiorari or prohibition shall suspend the execution of the judgment, provided a bond is filed (Rule 71, Sec. 2) This bond is conditioned upon his performance of the judgment should the petition be decided against him (Baculi v. Belen, A.M, RTJ-09-2179, 2012) Constructive contempt Remedy: Appeal (Rule 71, Sec. 11) What is the nature of indirect contempt? ‘A: Contempt is not a criminal offense. However, it partakes of the nature of a criminal action. Rules that govern criminal prosecution strictly apply to a prosecution for contempt. Infact, Sec. 11, Rule 71 Provides that the appeal in indirect contempt proceedings may be taken as in criminal cases. The Supreme Court has held that an alleged contemnor should accorded the same rights as that of an accused. Thus, the dismissal of the indirect contempt charge against _respondent mounts to an acquit ich second prosecution (Digital Telecommunications Philippines, Inc. v. Cantos, G.R. No. 180200, 2013), What are the acts that may constitute Indirect Contempt? A 1, Misbehavior an officer of a court in the performance of his official duties or in his official transactions; 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of ‘competent jurisdiction, enters or attempts or induces another to enter into or upon such real propetty, for the purpose of executing acts of ‘ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; 3, Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorey or an officer of a court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him; and 8, Failure by counsel to inform the court of the death of his client, since it constitutes an PAGE 68 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW improper conduct tending to impede the administration of justice (Rule 71, Sec. 3). Q: What are the procedural requisites before the accused may be punished for In Contempt? ‘A: (COH) 1. Charge in writing to be filed or a show cause order issued by the court; 2. Opportunity for person charged to appear and explain his conduct; and 3. To be heard by himself or counsel (Inonog v. Ibay, A.M, No. RTJ-09-2175, 2009). PAGE 69 OF 152ATENEO CENTRAL BAR OPERATIONS 2078 Q: What is a Special Proceeding? ‘A: A remedy by which a party seeks to establish a status, a right or a particular fact (Rule 1, Sec. Ste): Q: What are the Subject Matter of Special Proceedings? & Settlement of estate of deceased persons Escheat, Guardianship and custody of children; Trustees; ‘Adoption; Rescission and revocation of adoption; Hospitalization of insane persons; Habeas corpus; Change of name; 10. Voluntary dissolution of corporations; 111. Judicial approval of voluntary recognition of ‘minor natural children; 12. Constitution of family home: 13. Declaration of absence and death; 14. Cancellation of correction of entries in the civil registry (Rule 72, Sec. 1) ‘A. SETTLEMENT OF ESTATE OF DECEASED PERSONS @: Which court has settlement of the estate? ‘A: Jurisdiction depends on the GROSS VALUE of the estate. jurisdiction over If within Metro Manila, the Regional Trial Court ‘would assume jurisdiction if the estate exceeds 400,000. If not, the Municipal Trial Court has jurisdiction. Outside Metro Manila, the Regional Trial Court ‘would assume jurisdiction if the estate exceeds 300,000. If not, the Municipal Trial Court has jurisdiction. (R.A. 7691) Q: Where is the Venue of the Proceeding to Settle the Estate? A: Prippine | Decedent's place of residence REMEDIAL LAW NotPhiippine | in any place where any of the Resident _| decedent's properties are located (Rale 73, Sec. 1). Q: What is the extent of the jurisdiction of the probate court? A: General Rule: Questions as to TITLE to property cannot be passed upon by the probate court in the testate or intestate proceeding but should be ventilated in a separate action Exception: To determine whether sald property should be included in the inventory or list of properties to be administered by the administrator, the court may make a provisional determination. Such determination is provisional and NOT conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties (Pio Baretto Really Development, Inc. v. CA, G.R. No. 132362, 2001). in probate proceedings, the court 1. Orders the probate of the will of the decedent (Rule 77, Sec. 3) 2. Grants letters of administration of the party best entitled thereto or to any qualified applicant (Rule 79, Sec. 5) 3. Supervise and controls all acts of administration; hears and approves claims against the estate of the deceased (Rule 86, Sec 11) 4, Orders payment of lawful debts (Rule 88, Sec. nn 5. Authorizes sale, mortgage or any encumbrance of real estate (Rule 89) 6 Directs the delivery of the estate to those entitled thereto (Rule 90, Sec. 1) 7. Issues warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law (Rule 73, See. 3); an 8. If person defies a probate order, it may issue a warrant for the apprehension and imprisonment of such person until he perfoms such order or judgment, or is released. (Rule 73, Sec. 3) : What is the procedure in the settlement of an estate? PAGE 70 OF 152ATENEO CENTRAL REMEDIAL LAW BAR OPERATIONS 2018 : General Rule: Estate settlement should be judicially administered through an ‘administrator/executor. Exceptions: 1. Extrarudicial settlement by agreement between or among heirs. (Rule 74, Sec. 1) 2. Summary settlement of estates of small value. (Rule 74, Sec. 2) Q: When is an extrajudicial settlement by agreement between the heirs allowed? |. Decedent died intestate (left no will); . There are no outstanding debts at the time of seltlement; 3. Heirs are all of legal age or minors represented by judicial guardians or legal representative: 4, Either ofthe following should be duly filed with the Register of Deed: ‘ If the decedent left only one heir: the heir executes an affidavit of self-adjudication, b. Ifthe decedent left more than one heir, the settlement must be made in a public Instrument 5. Publication of the extrajudicial settlement/atfidavit of self-adjudication in a newspaper of general circulation in the province once a week for three consecutive weeks; and 6. Filing of bond equivalent to the value of personal property posted with the register of deeds. Q: When is a summary settlement of estates of ‘small value allowed? a 1, Petition filed by any interested person 2. Gross value of the estate, whether or not the decedent died testale OR intestate, must not exceed ten thousand pesos (P10,000), 3. Application must contain allegation of gross value of estate. 4, Upon hearing, the date of which: a. Shall be set by court not less than one (1) ‘month nor more than three (3) months from date of last publication of notice. b. Notice of hearing published once a week for three (3) consecutive weeks in a newspaper of general circulation, 5. Notice shall be served upon such interested persons as the court may direct. 6. Bond in an amount fixed by the court (not value of personal property) conditioned upon payment of just claims under Section 4, Rule 74 of the Rules of Court (Rule 74, Sec. 2) After such requisites are met, the court MAY proceed SUMMARILY, WITHOUT the appointment of an executor or administrator. Q: What are the rules on reconveyance for claims against the estate (Rule 74, Sec. 4)? AA: Ifitshall appear at any time within two (2) years after the settlement and distribution of an estate in ‘accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. If within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir cr other person has been unduly deprived of his, lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made. Q: When is Rule 74, Sec. 4 applicable? A: Rule 74, Sec. 4 is applicable only 1. to persons who have participated or taken part cor had notice of the extrajudicial partition, and, in addition, 2. when the provisions of Section 1 of Rule 74 have been strictly complied with, .¢., that all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are PAGE 71 OF 152ATENEO CENTRAL, BAR OPERATIONS 2018 REMEDIAL LAW represented by themselves or through ‘guardians. (Sampilo v. CA, 103 Phil 71) ACTIONS for RECONVEYANCE ~ specific to Property ofthe estate |. For participants in the EJS - 2 years from publication (per Sampilo case) 2. For non-participants!no notice of the EJS: a. Aggtieved heir is in possession of the land/real property ~ the case is quieting of title, which is imprescriptibe. b. Partyiheir at fault or transferees who are not transferees in good faith is stil in Possession — reconveyance/ recovery of possession can be filed 10 years from notice (repudiation of the trustissuance of title) cc. If Property is in hands of an Innocent purchaser for value and in good faith - No action for reconveyance possible. Recourse of heit/party is to seek damages from co-heirs. (See PEZA v. Femandez, GR. No. 138971, June 6, 2001, 358 SCRA 489) @: What are the remedies of the heir who was ddoprived ofthe share in the estate because he or she had not participated or had no notice of the settlement ofthe estate? A: If an aggrieved heirs in possession of the land or real propery, the remedy is a case of quieting of ile, which is imprescriptible Ifthe heir is at fault or transferees who are notin ‘900d faith are sil n possession, the remedy is a reconveyance or a recovery of possession which can be filed within 10 years from notice (repudiation of the trust or issuance of title). if the property is in the hands of an innocent purchaser fr value and is in good faith, no action of reconveyance is possible. The recourse ofthe heir is to seek damages from co-heirs (PEZA v. Femandez, GR. No. 198971. June 6, 2001, 358 SCRA 489}, Q: What are the remedies available to the aggrieved party after extra-judicial settlement of the estat 1. Claim Against the Bond or Real Estate or Both (Rule 74, Sec. 4) 2. Pelition for Relief (Rule 38) 3. Reopening by _ Intervention Reglementary Period 4. New Action to Annul Settlement Within Reglementary Period of Two Years; within 5. Rescission in Case of Pretertion of Compulsory Heir in Partition Tainted with Bad Faith (Civil Code, Art. 1104): and 6. Action for Reconveyance (Civil Code, Art 1144) 7. Action to Annul Extajudicial Settlement (Neriv. 7) : What is the nature of a probate proceeding? probate decree finally and definitively settles all questions conceming capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise (Fernandez v. Dimagiba, G.R. No, L-23638, 1967). : Who May Petition for Probate of Will? Executor; Devisee/legatee named in the will; ‘Testator himself during his lifetime; ‘Any creditor: as a preparatory step for fing of his claim therein, 5. Any person interested in the estate; (Rule 76, See. 1), 1 2. 3 4 What are the grounds for Disallowance of will? 1. Ifthe formalities required by law (execution and attestation) have not been complied with 2. If the testator was insane, or otherwise ‘mentally incapable of making a will at the time ofits execution 3. If It was executed through force or under duress, or the influence of fear or threats 4. If it was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person 5. If the signature of the testator was procured by fraud or trick 6. Ifthe testator acted by mistake or did notintend that the instrument he signed should be his will at the time of affixing his signature thereto (Rule 76, Sec. 9; Civil Code, Art. 839) : What are the Requisites Before a Will Proved Abroad Will Be Allowed in the Philippines A 1, The testator had his domicile in a foreign country PAGE 72 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 2. The will has been admitted to probate in such country — due execution of the will in accordance with foreign laws 3. The fact that the foreign tribunal is a probate court with jurisdiction over the proceedings 4, The law on probate procedure of the said foreign country and proof of compliance therewith 5. The legal requirements in said foreign country for the valid execution of the will (Vda. de Perez v. Tolete, G.R. No. 76714, 1994). Q: When and to whom letters of administration granted? A Executor — The person named in the will to administer the decedent's estate and carry out the provisions thereof. Letters Testamentary — The authority issued to ‘an executor named in the will WHEN a will has been proved and allowed and the person named therein is competent, accepts the trust and gives a bond. Administrator — The person appointed by the court to administer the estate. Where the decedent died intestate, or where the will was void and not, allowed to probate, or where no executor was. named in the will, or the executor named therein is incompetent to serve as such. Letters of Administration — The authority issued by the court to a competent person when: 1. The decedent died intestate; or 2. Although there is a will, the will does not appoint any executor; or 3, Executor named in the willis incompetent, refuses the trust or fails to give a bond. Q: Who may oppose issuance? A: Any interested person in the will can oppose. ‘Such opposition should state the grounds why the letters testamentary should not issue in writing and he may attach a petition for letters of administration with the will annexed (Rule 79, Sec. 1). Q: What is the Requirement to File Claims Against the Estate? A: AFTER granting letters testamentary or of administration, the COURT shall issue a NOTICE requiring all persons having money claims against the decedent to fle them in the office of the clerk of court (Rule 86, Sec. 1) .Q; What is a “money claim” under Rule 86? ‘A: Money claims are such debts or demands against the decedent as might have been enforced against him in his lifetime by personal actions for the recovery of money, and upon which only a ‘money judgment could have been rendered Q: What are the Claims That May Be Filed ‘Against The Estate? A 1. Money Claims; 2. Claims for Funeral Expenses; 3. Claims for Last Sickness of the Decedent; 4, Judgment for Money Against The Defendant (Rule 86, Sec. 5) : When should a claim be fled? A: General rule: Within the time fixed in the notice which shall not be more than twelve (12) months nor less than six (6) months after the date of the FIRST publication. (Sec. 2, Rule 86; also known as the Statute of Non-Claims) Otherwise, the claims are barred forever. Exception: BELATED CLAIMS — Claims not fled within the original period fixed by the court. Q: How do you file a claim? A: Two Methods: 1. Delivering the claim with the necessary vouchers to the clerk of court and by serving a ‘copy to the executor/administrator 2. Serve a copy on the executor or administrator. (Rule 86, Sec. 9) Q: How is payment of the estate effectuated? A: General rule: The payment of the debts of the estate must be taken (by order of preference): 1. From the portion or property designated in the will (Rule 88, Sec. 2) 2, From the personal property, and 3. From the real property. If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who have been in possession of portions of the estate PAGE 73 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW BEFORE debts and expenses have been settled and paid (Rule 88, Sec. 6) Exception: Instances When Realty Can Be Charged First: 1. When the personal property is not sulficient (Rule 88, Section 3) 2, Where the sale of such personalty would be 1. Moral character; 2. Physical, mental, and psychological condition; 3. Financial status; 4. Relationship of trust with the minor; 5. Availabilly to exercise the powers and dulies ‘of a guardian for the full period of the ‘guardianship; 6. Lack of conflict of interest with the minor; and 7. Ability to manage the property of the minor : Who May Be Appointed Guardian? ‘A: In default of parents or a court-appointed guardian, the court may appoint a guardian of a minor, observing, as far as practicable, the {ollowing order of preference: 1. Surviving Grandparent, and in case several grandparents survive, the court shall select any of them taking into account all relevant considerations; 2. The oldest Brother or sister of the minor over 21 years of age, unless unfit or disqualified; 3. The Actual custodian of the minor over 21 years of age unless unfit or disqualified; and 4, ‘Any Other person, who, in the sound discretion of the court would serve the best interests of the minor (Sec. 6), @: Who May Be Considered as an Incompetent? A 1. Persons suffering interdiction; Hospitalized lepers; Prodigals; Deaf and dumb who are unable to read and write; 3. Those who are of unsound mind even though they may have lucid intervals; 6. Persons not being of unsound mind but by reason of age, disease, weak mind or other ‘causes CANNOT without outside aid, take care of themselves and manage their property (Rule 92, Sec. 2) the penalty of civil @: How do parents exercise guardianship over their children? A: Ifthe value of the property orthe annual income ofthe child is PhP 50,000 or loss: Tho fathor and ‘mother jointly exercise logal guardianship, If the value exceeds PhP 50,000: The parent concemed files a veifed petition forthe approval ofthe bond, the amount of which the cour may determine. BUT: the value ofthe bond must not be ess than 10% of the value ofthe property af annial income ofthe child, (Family Code, Art. 25). Q: How is Guardianship terminated? A 4. Competency of the ward has been judicially determined; (Rule 97, Sec. 1) Death of quardian or of ward; Guardianship is no longer necessary. (Rule 97, Sec. 3) Q: What are the Grounds for Removal or Resignation of Guardian? Guardian becomes insane; Incapable of discharging trust; Unsuitable to discharge functions; \Wastage or mismanagement of the property of the ward 5. Failure to render account or make a return within thirty (30) days after it was due. (Rule 97, Sec. 2) Seep Q: What is the proper mode of appealing a judgment or final order in special PAGE 75 OF 152,ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW A: Its by notice of appeal and record on appeal, pursuant to Seo, 2(a), Rule 41. Failure to submit a record on appeal means that the appeal is not perfected. Thus, the judgment or final order will become final and executory. Record on appeal conly in settlement of estate. (Chiongpian v. Benitez-Litio, G.R. No. 162692, August 26, 2015). D. HABEAS CORPUS Q: What is the purpose of the Writ of Habeas Corpus? A Ils vital purposes are to obtain immediate relief ‘rom illegal confinement, toiberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody (Velasco v. Court of Appeals, G.R. No. 118644, 1998). ‘The object of the writ of habeas corpus is to inquire into the legality of the detention, and, if the detention is found to be illegal, to require the release of the detainee (Mangila v. Judge Pangilinan, G.R. No. 160739, 2013). : What is the scope of the Writ of Habeas Corpus? A 1. All cases of illegal confinementdetention by which any party is deprived of his liberty; 2. If the rightful custody of a person is withheld from the one entitled to it 3. If, as a consequence of a judicial proceeding: ‘a. There is deprivation of a constitutional right resulting in the person's restraint; . The court has no jurisdiction to impose the sentence; or c. An excessive penalty was imposed, because the sentence is void as to the ‘excess (Parulan v. Director of Prisons, G.R. No. L-28519, 1968) 4, Invasion or Rebellion, when public safety requires it (Art. Vl, Sec. 18, 1987 Constitution). Who may grant a Writ of Habeas Corpus? ‘Supreme Court or any member thereof — enforceable anywhere in the Philippines and made returnable before any court 2. Court of Appeals or any member thereof - enforceable anywhere in the Philippines and made returnable before any court 3, Regional Trial Court or a judge thereof ~ enforceable only within his judicial district, retumable only to itself (Rule 102, Sec. 2). The Supreme Court, the Court of Appeals and Regional Trial Courts have CONCURRENT jurisdiction to issue Writs of Habeas Corpus. In the absence of ALL Regional Trial Court judges in a province or city, Municipal Trial Court judges MAY hear and decide petitions for a Writ of Habeas Corpus in that province or city. Family Courts have EXCLUSIVE ORIGINAL JURISDICTION to issue Writ of Habeas Corpus Involving the custody of minors (R.A. 8369). The Sandiganbayan may grant the wrt only ifit is in aid of its appellate jurisdiction (Festin, Special Proceedings: A Foresight to the Bar Exam, 2” Ed. 2011). Q: Differentiate the peremptory writ of habeas corpus from preliminary citation. : The Peremptory Writ under Sec. 6 is a command to produce the body of petitioner or detainee before the court at the time and place specified, and to justify the detention or restraint. ‘While the preliminary citation is an order requiring respondent to appear and show cause why the peremptory writ should not issue. (Lee Vick Hon v. Collector of Customs, 41 Phil §48), What is writ of Habeas corpus in Rules on Custody of Minors? : Unlike under the regular writ of habeas corpus, in custody of minors, the court wil adjudge who is entitled to custody upon return of the writ. (Sec. 20, A.M, No. 03-04-04-SC) In cases involving minors, the purpose of a petition for habeas corpus is not limited to the production of the child before the court. The main purpose of the petition for habeas corpus is to determine who has the rightful custody over the child. ( Bagtas vs. Hon. Santos, et al, GR. No. 166682, 27 November 2009) Q: What are requisites for the petitions for habeas corpus for the custody of a minor? 1. The petitioner has a right of custody over the minor; 2. The respondent is withholding the rightful PAGE 76 OF 152ATENEO CENTRAL REMEDIAL LAW custody over the minor; and 3. The best interest ofthe minor demands that he or she be in the custody of the petitioner. (Bagtas v. Hon. Santos, et al, GR. No. 166682, 27 November 2009) Where is the writ enforceable? If granted by the Supreme Court or the Court of Appeals, it shall be enforceable anywhere in the Philippines; or 2. If granted by the Regional Trial Cour, it is enforceable only within his judicial district (Rule 102, Sec. 2). When is a Writ of Habeas Corpus not lowed? ‘The Writ Is Not Allowed When: Person is in custody of an officer a. Under process issued by a court or judge; or b. By virtue of a judgment; or cc. By Virtue of an order of the court; AND that the court or judge HAD JURISDICTION to issue the process, render the judgment or make the order. 2. Jurisdiction appears after writ is allowed 3. Person is charged with or convicted of an offense in the Philippines 4, Person is suffering imprisonment under lawful judgment (Rule 102, Sec. 4). Q: What is the remedy in case of denial of potition for Writ of Habeas Corpus? ‘A: Recourse to the Supreme Court via a petition for certiorari from the decision of the CA dismissing his petition for writ of habeas corpus is inappropriate. The petitioner should file an ordinary appeal from the judgment of any court in habeas corpus cases within 48 hours from notice of the judgment appealed from (Caballes v. CA, GR. No. 163108, 2008). PAGE 77 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Vill. CRIMINAL PROCEDURE ‘A. GENERAL MATTERS: Q: For Sandiganbayan to have jurisdiction over officers as enumerated under RA 10660, when should they be officers? At the time of commencement of action or at time of commission of the crime? ‘A: Atthe time of the commission ofthe crime, from the wording of RA 10660, "where one or more of the accused are officials... at the time of the ‘commission of the offense.” (RA 10660, Sec. 4(a)) Q: Which officers in the executive department are under the jurisdiction of the ‘Sandiganbayan? A: Only Regional Directors with Salary Grade 27 and higher fall within the exclusive jurisdiction of the Sandiganbayan. Yet, those that are classified as Salary Grade 26 and below may sill fall within, the jurisdiction of the Sandiganbayan, provided that they hold the positions enumerated by law. ‘The specific inclusion constitutes an exception to the general qualification. (Duncanov. Sandiganbayan, G.R. No. 191894, 2015) : Which court has jurisdiction over private individuals charged as co-principals, accomplices or accessories with public officers or employees? ‘A In case private individuals are charged as co- principals, accomplices or accessories wth public officers or employees, including those employed in government-owned or controlled corporations, they shall be tied jointly with said public officers, and employees in the proper courts which shall exercise exclusive jurisdiction over them. (Disinv Sandiganbayan, G.R. Nos. 169823-24, 2013) @: May a trial court deny a motion for redetermination of probable cause on the ground of lack of jurisdiction over the person of the accused? ‘A: The trial court clearly erred in denying petitioner's motion for redetermination of probable cause due to lack of jurisdiction over the person of the accused, when the motion was fled prior to his arrest. Custody of the law is not required for the adjudication of reliefs other than an application for bail. (David v. Agbay, G.R. No. 199113, 2015) Q: What is the current composition of the divisions of the Sandiganbayan? RA. 10660 otherwise known as Act Strengthening Further for Functional and Structural Organization of the Sandiganbayan, increased the number of divisions from five to seven divisions which are stil composed of 3 members per division. (R.A. No. 10660) B. PROSECUTION OF OFFENSES: : How are criminal actions instituted? A: For Offenses Where a Preliminary Investigation is required: Instituted by filing the complaint with the proper officer for preliminary investigation. (Sec 1, Rule 110, Revised Rules of Criminal Procedure) Preliminary investigation is required for offenses where the penalty prescribed by law is AT LEAST 4 years, 2 months and 1 day (prision correccional max) of imprisonment without regard to the fine. For all other offenses: Instituted DIRECTLY with the Municipal Trial Court and Municipal Circuit Trial Court or the complaint is fled 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. In contrast, for criminal offenses outside Metro Manila, the complaintinformation must be filed with the provincial prosecutor or Municipal Trial Courts. (Rule 110, Sec. 1, Revised Rules of Criminal Procedure) @: Who may conduct a investigation? The following may conduct preliminary investigations: . Provincial or City Prosecutors and their assistants; . Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; Cc. National and Regional State Prosecutors; and d. Other officers as may be authorized by law. (Rule 112, Secs. 1-2) Q: Who may file a criminal complaint? & PAGE 78 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW The offended party, 2. Any peace officer, or 3. Other public officer charged with the enforcement of the law violated. (Rule 110, Sec. 3) Q: Who may prosecute criminal actions? A: All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the prosecutor. Private Prosecutor May Prosecute the Case in Case of: 1. Heavy work schedule of the public prosecutor; or 2. In the event of lack of public prosecutors. Provided: 1. Authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution; and 2. Subject to the approval of the Court Once so authorized, private prosecutor shall Continue to prosecute the case up to the end of trial unless the authority is revoked or withdrawn. (Sec 5, Rule 110, Revised Rules of Criminal Procedure amended by A.M. No. 02-2-07-SC) In upholding People v. Garfin, the court firmly instructs that the filing of an Information by an officer without the requisite authority to file the same constitutes a jurisdictional infirmity which cannot be cured by silence, waiver, acquiescence, or even by express consent. Hence, such ground may be raised at any stage of the proceedings (Quisay v. People G.R. No. 216920, 2016 (PERLAS-BERNABE) Q: What is the effect if the information is filed by someone not authorized by law? A: (PERLAS-BERNABE) The court does not acquire jurisdiction. The accused's failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof. (People v. Garfin, G.R. No. 153176, 2004. Quisay v. People G.R. No. 216920, 2016). Q: What crimes cannot be prosecuted de officio? A: Private offenses (concubinage, adultery, seduction, abduction, acts of lasciviousness); ‘Who may prosecute private offenses? Adultery and Concubinage — 1a. Only by the offended spouse who should have the status, capacity, and legal representation at the time of filing of the complaint regardless of age . Both guilty parties must be included in the ‘complaint. cc. The offended party did not consent to the offense nor pardoned the offenders. 2. Seduction, Abduction and Acts of Lasciviousness ~ Prosecited exclusively and successively by the following persons in this order: a. By the offended woman; b. By the parents, grandparents or legal! judicial quardians in that successive order, if the offended party is a minor or of age but suffers from physical or mental disability, c. By the State pursuant to the doctrine of parens patriae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known — parents, grandparents or guardians. 3. Defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness ~ Only by the party or parties, defamed (Revised Penal Code, Art. 360) IT the offended party is of legal age and does not suffer from physical or mental disability, she alone can fle the complaint to the exclusion ofall. (Rule 110, Sec. 5) Q: Who can give pardon? 1. Adultery and Concubinage - Only the offended spouse not otherwise incapacitated, can validly extend the pardon or consent contemplated therein 2. Seduction, abduction and acts of lasciviousness a. The offended minor, if with sufficient discretion can validly pardon the accused by herself if she has no parents or where the PAGE 79 OF 182ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW accused is her own father and her mother is dead; b. The parents, grandparents or guardian of the offended minor, in that order, cannot extend a valid pardon in said crimes without the conformity ofthe offended party, even if the latter is a minor, . If the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon. ‘The pardon refers to pardon BEFORE fling of the criminal complaint in court. Pardon effected after the fling ofthe complaint in court does not prohibit the continuance of the prosecution ofthe offense EXCEPT in case of marriage between the offender and the offended party. (Rule 110, Sec. §) Q: What is the general rule on the effect of pardon? ‘A: Pardon under Art. 344 of the RPC does not ‘extinguish criminal liability but merely constitutes a bar to criminal prosecution, (Estrada, Criminal 3. Law: Book | of the Revised Penal Code) : What is the effect of pardon in the form of 4 marriage? ‘A: Pursuant to Article 344 of the Revised Penal Code dealing with seduction, abduction, acts of lasciviousness and rape, the subsequent marriage of the offender with the offended party shall extinguish the criminal action or remit the Penalty already imposed upon him, the co- principals, accomplices and accessories. Exception/s: 1. Where the marriage was invalid or contracted in bad faith in order to escape criminal liability (People v. Santiago, G.R. No. L-27972, 1927); 2. In private libel’ or the libelous imputation of the commission of the crimes of concubinage, adultery, seduction, abduction, rape, or acts of lasciviousness, and in stander by deed (People v. Orzame, 39 0.G. 1168); and In muttiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concemed (People v. Bernardo, 38 0.6. 3749) Q: What constitutes a sufficient complaint or information? ‘A: Acomplaint or information is sufficientifit states the: (NDANAP) 1. Name of the accused; 2. Designation of the offense by a statute 3. Acts or omission complained of as constituting the offense; 4, Name of the offended party; 5. Approximate date of the commission of the offense; and 6. Place where the offense was committed. : What constitutes as a sufficient designation of an offense? : The Information or Complaint must state or designate the following whenever possible: 41. The designation of the offense given by the statute. (If there is no designation of the offense, reference shall be made to the section Or subsection of the statute punishing 2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words. ‘The specific qualifying and aggravating circumstances must be stated in ordinary and concise language. (Rule 110, Sec. 8) For qualifying and aggravating circumstances to be appreciated, it must be alleged in the complaint ‘or information. (People v. Lapore, G.R. No. 191197, 2015) along with B were charged with the crime of rape committed against "AAA" in an Information.which reads “That on or about 3:00 o'clock dawn of March within the jurisdiction of this Honorable Court, IA), wi int desires, and by means of force and intimidation, after conspiring and ‘mutually helping one another, did then and there wilfully, unlawfully and feloniously have camal knowledge [of] "AAA" against the latter's will, CONTRARY TO LA\ During trial, the prosecution was able to prove that A was armed with a knife when he committed the crime. Thereafter, the RTC convicted A of the crime of rape while B was acquitted for insufficiency of evidence. In PAGE 80 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW finding the A guilty, the RTC held that he had sexual intercourse with the victim through the use of force and imposed upon him the penalty of Reclusion Perpetua. Was the RTC correct? A: Yes. Under Article 335 of the Revised Penal ‘Code which is the law then in force at the time of the commission of the crime, when the rape is committed with the use of a deadly weapon, the crime takes a qualified form and the imposable penalty is raclusion perpetua to death. In the instant case, we note that the use of the knife, which is a deadly weapon, was not specifically alleged in the Information. However, it was duly proven during the proceedings below that A armed himself with a knife which faciftated the ‘commission of the crime. In People v. Begino, we held that "the circumstances that qualify a crime should be alleged and proved beyond reasonable doubt as the crime itself ‘These attendant circumstances alter the nature of the crime of rape and increase the penalty. As such, they are in the nature of qualifying circumstances. If the same are not pleaded but proved, they shall be considered only as ‘aggravating circumstances since the latter admit, of proof even if not pleaded.” Consequently, the Use of a deadly weapon may be considered as an ‘aggravating circumstance in this case. (People v. Pedro Banig, G.R. No. 177137, Aug. 23, 2012) Q: Can an accused be convicted of an offense not clearly charged in the complaint or information? A: As a rule, an accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. (Patula v. People, G.R. No, 164457, 2012) EXCEPTION: Crimes necessarily included or includes the offenses charged in the complaint. : Must the elements of the crime be alleged in the information? A: Yes. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information isto inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts thal constitute the offense. (People v. Valdez, G.R. No. 175602, 2013) Q: The information charged Tionloc of rape by sexual assault against AAA. Prosecution claimed that Tionloc and AAA had a drinking session and when the latter was intoxicated enough, the former proceeded with having carnal knowledge with her. Tionloc denied having carnal knowledge and alleged that the minor he was drinking with was the one who had sex with AAA. RTC convicted Tionloc of rape based on the allegations of the information to which the CA affirmed. Can the accused be tried on the crime of Rape through sexual intercourse under paragraph 1 of Art. 266-A of the RPC based on the allegations of the information instead of rape by sexual assault under paragraph 2 of Art. 266-A of the RPC based on the designation of the crime in the information. A: YES, When there is a discrepancy between the designation of the crime in the information and the recital of facts in the information, the latter would prevail and determine the nature of the crime committed. "The character of the crime is not determined by the caption or preamble of the Information nor from the specification of the provision of law alleged to have been violated, but by the recital of the ultimate facts and circumstances in the complaint or information.” Nevertheless, accused Tionloc was acquitted for failure of the prosecution to prove the use of force, threat, or intimidation on AAA, which is one of the ‘elements of the crime of rape under Art. 266-A of the RPC. (People vs Tionloc, G.R. No. 212193, February 16, 2017). ‘Is the right to be informed of the nature and cause of accusation against the accused violated when the appellate court affirmed his conviction despite the fact that he was able to present evidence on his whereabouts at the date when the alleged crime was committed? PAGE 81 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: No. As embodied in Section 14 (1), Article Il of the 1987 Constitution, no person shall be held to answer for a criminal offense without due process of law. Further, paragraph 2 of the same section, It provides that in all criminal prosecutions, the accused has a right to be informed of the nature and cause of the accusation against him. It is further provided under Sections 8 and 9 of Rule 110 of the Revised Rules of Court that a ‘complaint or information to be filed in court must contain a designation given to the offense by the statute, besides the statement of the acts or ‘omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it ‘and the acts or omissions complained of as constituting the offense. (People v. Taundo, G.R. No. 207816, 2016) Q: Company A has allegedly been refiling branded LPG cylinders in its refiling plant absent any authority per certifications from gas companies owning the branded LPG cylinders, thus violating BP 33. As such, PiSupt.X filed applications for search warrant against the officers of ACCS, and later found Gon. Manager Y primarily responsible for such activity, A. criminal prosecution against Company A’s Board of directors was moved for. Will it prosper? ‘A: No. A member of the board of directors of a corporation is not necessarily an ‘officer charged with the management of the business affairs thereof! Even if the corporate powers of a corporation are reposed in the board of directors Sec. 23 of the Corporation Code, the board of directors is not directly engaged or charged with the running ofthe recurring business affairs of the corporation. Depending on the powers granted to them by the Articles of Incorporation, the members of the board generally donot concern themselves with the day-to-day affairs of the corporation, except those corporate officers who are charged with running the business ofthe corporation and are concomitantly members of the board, like the President who is also Tequited to be also a member of the board of directors. \ce BP 33 expressly provides that only the ‘President, General Manager, Managing Partner, or such other officer charged with the management of the business affairs of the corporation, or the employee responsible for the violation shall be criminally liable,” everything else must necessarily and by implication be excluded from its operation and effect (Federated LPG Dealers Association v. Del Rosario, G.R. No. 202639, November 9, 2016). What shall be averred in an information charging an offense for violating the Anti- Hazing Law? ‘Section 6, Rule 110 of the Rules of Court, expressly states that the information must include, inter alia, both “the designation of the offense given by the statute" and "the acts or omissions ‘complained of as constituting the offense.” Failure to aver this crucial ingredient — that the purported acts were employed as a prerequisite for admission or enty into the organization — would prevent the successful prosecution ofthe criminal responsibilty of the accused, ether as principal or as accomplice, for the crime of hazing. Plain reference to a technical term — in this case, hazing = is insufficient and incomplete, as it is but a characterization of the acts allegedly committed and thus a mere conclusion of law. However, failure to allege that the purported acts Were not covered by the exemption relating to the duly recommended and approved “testing and training procedure and practices” for prospective regular members of the AFP and the PNP is not fatal. This exemption is an affirmative defense in, not an essential element of, the crime of accomplice to hazing. It is an assertion that must be properly claimed by the accused, not by the prosecution. (People v. Bayabos, G.R. No. 174222, 2015) Q: Differentiate Amendment from Substitution ‘A: Both may be made before or after. the defendant pleaded. Eas Eres Involves. substantial change from original charge May involve either formal or substantial changes. PAGE 82 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Substitution of, information must be ‘Amendment before the plea has been entered can be effected without | with leave of court as leave of court the original information has to be dismissed. When an amendment] Another preliminary is only as toform, there| investigation is js no need for another| entailed and the preliminary accused has to plead investigation and the} anew to the new retaking of the plea of| information. the accused, ‘An amended information refers to} presupposes that the the same offense} new information charged in the original | involves a_ different information or to an| offense which does offense which | not include or is not necessarily includes or| necessarily included Requires or is necessarily included] in the original in the original charge, | charge, hence the hence substantial] accused cannot amendments to the} claim double information after the plea has been taken cannot be made over the objection of the accused, for if the original would be withdrawn, the accused could invoke double jeopardy. (Riano, Criminal Procedure [The Bar Lecture Series) jeopardy. Q: What are the rules on venue? A: Penal laws are territorial. The criminal action shall be instituted in the court of the municipality or territory where the offense or any of its essential elements occurred. Exceptions: Coy ry eaiihinea JURISDICTION ‘Offense committed outside PH but under the circumstances in (Revised Penal Code, Art.2) Court where criminal action is frst fled ‘Supreme Court orders change of venue, pursuant to | Court of new venue Pu. CONST. art, Vil, §.5(4) Court of any ‘municipality or territory where such train, Offense is committed | aircraft or other vehicle in a train, aircraft, or | passed during such its other public or private | trip, including the place vehicle while in the | of its departure and course of is trip arrival Includes departure and arrival ports, ‘Court of the first port of entry or of any ‘municipality or teritory Offense is committed on board a vessel in | Where the vessel the couse of | assed ug such voyage Departure and arrival ports NOT included Generally, RTC where the alleged libelous article was printed and first published If offended party is a public officer: where the offended party held Offense is written | office at the time at the defamation commission of the offense If offended party is a private individual, where the officer actually resided at the | time of the commission of the crime Piracy — has no territorial limits as it is a crime against all mankind, Perjury Perjury is committed through the making of a false affidavit under Article 183 of the RPC is committed at the time the affiant subscribes and swears to his, PAGE 83 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW or her affidavit since it is at that time that all the ‘elements of the crime of perjury are executed. When the crime is committed through false testimony under oath in a proceeding that is neither criminal nor civil, venue is at the place where the testimony under oath is given. If in lieu of or as supplement to the actual testimony made in a proceeding that is neither criminal nor civil, a written sworn statement is submitted, venue may either be atthe place where the sworn statement is submitted or where the cath was taken as the taking of the oath and the submission are both material ingredients of the crime committed (Union Bank v. People, G.R. No. 192565, 2015) egal Recruitment under R.A. No. 8042 - Criminal action arising from illegal recruitment shall be filed in the RTC: 1. Where the offense was committed; or 2. Where the offended party actually resides (Sto. Tomas v. Salac, G.R. No. 152642, 2012) Trafficking in Persons ~ the action shall be fled where: 1. Where the offense was committed 2. Where any of its elements occurred 3. Where the trafficked persons actually resides at the time of the commission of the offense The court where the criminal action is first fled shall acquire jurisdiction to the exclusion of other courts. (R.A. 9208, Sec. 9) In exceptional circumstances, to ensure a fair trial and impartial inquiry, the Supreme Court shall have the power to order a change of venue or place of trial to avoid the miscarriage of justice (1987 Constitution, Section (4), Art. Vill) ‘Trafficking cases shall prescribe in ten (10) years: Provided, however, That trafficking cases committed by a syndicate or in a large scale as defined under Section 6 shall prescribe in twenty (20) years. (R.A. 9208, Sec, 12) Trafficking may be committed with or without Vietin’s consent or knowledge (R.A. 9208, Sec. 3a) Cases involving trafficking in persons should not be dismissed based on the affidavit of desistance executed by the victims or their parents or legal guardians. (R.A. 10364, Sec. 8(¢)) B.P. 22 cases - One can file either in the place of issuance of the check or where the check was deposited and bounced. (Isip v. People, G.R. No. 170298, 2007) The Court held that the venue was properly laid where the accused delivered the checks and/or transactions occurred. Estafa cases — elements may be committed in different places. Q: May venue be waived in criminal cases? No. It is an essential element of jurisdiction, (Navaja v De Castro, G.R. No. 182926, 2015) Q: What determines the venue in a criminal action? The jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. . What must thus be followed is the venue alleged in the information (Evangelista v. People, G.R. No. 163267, 2010). ‘An information alleging X was in Possession, custody, and control _of unlicensed firearms at NAIA prompted hi arrest therein. X traveled an Angola-Dubai Manila route. During investigation, he admitted that he brought the subject firearms from Angola, but the same were confiscated by the Dubai authorities, who turned over the ‘same to.a PAL personnel in Dubai. X contends that the RTC of Pasay has no jurisdiction over the case since his alleged possession transpired while he was at the Dubai Airport. Hence, such possession has ceased when he left for the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Art. 2 of the Revised Penal Code, he had not committed a crime within the Philippines. Is X correct? : NO. X fails to establish by sufficient and competent evidence that the present charge happened in Dubai. The jurisdiction of a court over the criminal case is determined by the allegations PAGE 84 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW in the complaint or information. Since there is no pending criminal case when X left Dubai, it stands to reason that there was no crime committed in there, What must thus be followed is the venue alleged in the information (Evangelista v. People, GR. No. 163267, May 5, 2010). ROSECUTION OF CIVIL ACTIONS: @ When may independently? ‘A: General Rule: Independent civil actions under Atcles 22 (violation of civil and politcal rights), 33 (defamation, fraud, physical injuries), 34 (refusal of police officer to render aid) and 2176 (quasi-lict) of the Civil Code: 1. May be brought by the offended party; 2: Proceed independently of eriminal action; and 3. Require only a preponderance of evidence (Rule 111, Sec. 3) civil action proceed Exception: A plaintiff cannot recover damages twice for the same act or omission of the defendant. (Civil Code, Art. 2177) Q: What is the rule on the implied institution of, civil action with criminal action? A: General Rule: The institution or fling of the criminal action includes therein the institution of civil action for recavery of civil ability arising from the offense charged. (Rule 111, Sec. 1) Exception/s: When the offended party: 1, Walves the civil action; 2. Reserves his right to institute the civil action separately; or 3. Institutes the civil action prior to the criminal action. (Rule 111, Sec. 1) Q: What civil action is deemed instituted with the criminal action? ‘A: The civil action for the recovery of civil liability that is deemed instituted with the criminal action refers only to that arising from the offense charged. (Solidum v. People, G.R. No. 192123, 2014) Q: Does the acquittal of the accused bars the filing of a civil case against the accused? A: (PERLAS-BERNABE) The acquittal of petitioner does not bar the offended party from pursuing a subsequent civil case based on the delict, UNLESS, the judgment of acquittal ‘expressly declares that the act or omission from which the civil liability may arise did not exist. (Coscuella v. Sandiganbayan. G.R. No, 191411, 2013) @: Is there an independent civil action for lations of BP 227 ‘A: There is no independent civil action to recover the value of a bouncing check issued in contravention of BP 22. This is clear from Rule 111 of the Rules of Court, effective December 1, 2000, which provides among others that the criminal action for violation of Balas Pambansa Big, 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. (Heirs of Eduardo Simon v. Elvin Chan and CA, G.R. No. 157547, 2011) action corresponding a pending before the ‘Sandiganbayan be reserved? ‘A: No. The filing of the criminal action shall be deemed to necessarily carry with it the fling of the civil action, and no right to reserve the filing of such civil action separately from the criminal action shall be recognized. However, where the civil action had heretofore been filed separately but judgment has not been rendered, and a criminal case is fled before the Sandiganbayan or appropriate court, said civil action shall be transferred thereto. Otherwise, the civil action shall be abandoned. (PD. No. 1606, as amended by R.A. No. 10660, Sec. 4) Q: What is the effect of the death of the accused on civil and criminal liability? & a) Before Arraignment The criminal action shall be dismissed without Prejudice to the offended party's filing any civil ‘action against the estate of the deceased. b) After Arraignment and During the Pendency of the Criminal Action General Rule: Death extinguishes the civil liability arising from delict or the offense. Exception: Where civil liability is predicated on cother sources of obligations such as law, contract, PAGE 85 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW quasi-contract, and quasi-delict (Asilo v. People G.R. Nos. 159017-18, 2011) - Independent civil action Note: Both may be continued against the estate or legal representative of the accused after proper substitution, or against said estate, whatever the case may be. Heirs of the deceased shall be substituted for the deceased defendant without requiring the appointment of an executor or administrator. The court may also appoint a guardian ad litem for minor heirs. The criminal case is reduced to a civil action, (People v. Lipata ¥y Ortiza, G.R. No. 200302, 2016) Hf the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Section 16 Rule 3 of the Rules of Court ©) After Final Judgment ‘The action is enforced as a money claim against the estate. (Rule 66) Q: What is a prejudicial question? ‘A: One which arises in a case, the resolution of Which is a logical antecedent of the issue involved in the criminal case and the cognizance of which pertains to another tribunal. (Zapata v. Montesa, 4 SCRA 510[1962)) Q: What are the elements of a prejudicial question? A: Based on Jurisprudence 1. The civil case involves facts intimately related to those upon which the criminal prosecution ‘would be based 2. Inthe resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and 3. Jurisdiction to try said question must be lodged in another tribunal. (People v. Arambulo, G.R. No. 186597, 2015) B. Based on the Rules of Court 1. Ihe previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action. 2. The resolution of such issue determines whether or not the criminal action may proceed. Is there a prejudicial question ifthe civil and criminal action can proceed independently? ‘A: There is no prejudicial question ifthe civil and the criminal action can, according to law, proceed independently of each other. Under Rule 111, Section 3 of the Revised Rules on Criminal Procedure, in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the independent Civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or ‘omission charged in the criminal action. (Consing, J. vs. People, G.R. No. 161075, 2013) Q: Must a civil case precede the criminal case for the doctrine of prejudicial question to apply? x General Rule: There must be a previously instituted civil action and a subsequent criminal action for the doctrine of prejudicial question to apply. Exception: The Supreme Court has relaxed this rule and applied the doctrine to a previously instituted administrative case and a subsequent Civil case (Quiambao v. Osorio, G.R. No, L-48157, 1998) and also a previously _ instituted administrative case and a subsequent criminal case (San Miguel Properties, Inc. vs. Sec. Hemando Perez, G.R. No. 166836, 2013). The Supreme Court acknowledged in those cases that there was an INTIMATE CORRELATION OR INTIMATE RELATION between the two cases. Can a prejudicial question in an administrative case filed with the HLURB suspend the criminal action? ‘A: Yes, because the action for specific performance was an action civil in nature but could not be instituted elsewhere except in the HLURB whose jurisdiction over the action was exclusive and original. (San Miguel Properties, Inc. vs. Sec. Hemando Perez, G.R. No. 166836, 2013) Can criminal liability be extinguished by novation of the contract? PAGE 86 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW A: Criminal liabilty for estafa is not affected by a ‘compromise or novation of contract, since it is a public offense (Metrobank v. Reynaldo, G.R. No. GR. No, 164538, 2010) However, novation is relevant only to determine if, the parties have meanwhile altered the nature of the obligation prior to the commencement of the criminal prosecution in order to prevent the incipient criminal liability of the accused. (Degarios v. People, G.R. No. 162826, 2013) D. PRELIMINARY INVESTIGATION What is the nature of a preli investigation? ‘A: The preliminary investigation, which is the occasion for the submission of the parties respective affidavits, _counter-affidavits and evidence to buttress their separate allegations, is ‘merely inquisitorial, and is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare the information. It is not yet a trial on the ‘merits, for its only purpose is to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. What is required is only that the ‘evidence be sufficient to establish probable cause that the accused committed the crime charged, not that all reasonable doubt ofthe guilt of the accused be removed. (Enrile and Enrile v. Judge Manalastas, et al, G.R. No. 166414, 2014) ary Q: When is it required? ‘A: General Rule: BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine. Exception: If the accused was arrested by virtue of lawful arrest without warrant (Rule 112, Sec. 1) Q: What are the purposes of preliminary investigation? M 1. To determine whether a crime has been committed and whether there is probable cause to believe that the accused is gully thereof. 2. To preserve evidence and keep the witnesses within the control of the State. 3. To determine the amount of bai, if the offense is bailable. (Callo-Claridad vs. Esteban, G.R. No. 191567, 2013) Q: How is probable cause defined for purposes of filing a criminal information? A: Probable cause for purposes of fing a criminal information is defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. Probable cause, although it requires less than evidence justifying a conviction, demands more than bare suspicion. (Callo-Claridad vs. Esteban, G.R. No. 191567, 2013) Q: What are the instances in the Rules where probable cause needs to be established? ‘A: Instances When Probable Cause Needs To Be Estalahed Wi0 mas oF DETERVINE DETERMINATION A To deterine WN Tete sunt gd Io engendt 2 webounded bebe! at he respondents gully ret, Investigating | Sd shouldbe had for a 17.5008 18 paced tothe ing of Canplat or ivomaton for an omens were tne poaly proscribed bylaw > 4 2 mova day To detains WRT waren | of arect or a. conmiment| Jigo _Ruo| order shat be eset and ta | 112: Secs 88 | thoes anecessy of lai 8) respondent under immediate custody in order not to frustrate the ends of justice When making a warrantless arrest, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it To determine WIN a search ‘warrant shall be issued Peace Officer or Private Person (Rule 113, Sec. 5[b)) Judge (Rule 126, Sec. 4) PAGE 87 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW Q: Can the courts rule on the vali Secretary of Justice's determination of the existence of lack of probable cause? A: No. The settled policy is that the courts will not Interfere with the executive determination of probable cause for the purpose of fing an information, in the absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of, law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (Metropolitan Bank and Trust Co. V. Tobias, G.R. No. 177780, 2012) @: Can the Secretary of Justice conduct automatic review of the Provincial Prosecutor's affirmance of former resolutions issued by previous investigating prosecutors without conducting an actual reinvestigation of the case? A: Yes. The Secretary of Justice is empowered to review the actions of the Provincial Fiscal during the preliminary investigation or the reinvestigation by virtue of Section 4, Rule 112 of the Rules of ‘Court which recognizes the Secretary of Justice's power to review the actions of the investigating Prosecutor, even motu proprio. (Fortaleza v. Gonzales, G.R. No. 179287, 2016) Q: Can the Secretary of Justice issue an Order creating a new panel of investigators to conduct a reinvestigation of the case? A: Yes. Under Rule 112, Section 4 of the Rules of Cour, the Secretary of Justice may motu proprio reverse or modify resolutions of the provincial or city prosecutor or the chief state prosecutor even without a pending petition for review. The Seoretary of Justice exercises control and supervision over prosecutors and itis within her- authority to affirm, nullify, reverse, or modify the resolutions of her prosecutors. Section 4 of RA No. 10071 also gives the Secretary of Justice the authority to directly act on any "probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor.” Accordingly, the Secretary of Justice may step in and order a reinvestigation ‘even without a prior motion or petition from a party In order to prevent any probable miscarriage of justice. (De Lima v. Reyes, G.R. No. 209330, 2016) Is the respondent entitled to copies of co- respondent's affidavit, as well as the transcripts of the clarificatory hearings conducted by the Ombudsman with sai respondent? : No. In Estrada v. Ombudsman, the Court had already resolved in detail that under both Rule 112 of the 2000 Rules of Criminal Procedure and Section 4, Rule Il of the Rules of Procedure of the Office of the Ombudsman, a respondent to a preliminary investigation proceeding is only entitled to the evidence submitted by the complainants, and not to those submitted by a co- respondent. (Reyes v. OMB, G.R. Nos. 212593- 94, 2016) Do judges have the authority to immediately dismiss the case for lack of probable cause? ‘A: Yes. The Court declared in Santos-Dio v. CA (Santos-Dio) that while a judge's determination of probable cause is generally confined to the limited Purpose of issuing arrest warrants, he is nonetheless authorized under Section 5 (a), Rule 112 of the Revised Rules of Criminal Procedure to immediately dismiss the case if the evidence on record clearly falls to establish probable cause. A judge may dismiss the case for lack of probable cause only in clear-cut cases when the evidence ‘on record plainly fails to establish probable cause = that is when the records readily show uncontroverted, and thus, established facts which unmistakably negate the existence of the elements of the crime charged. (Young v. People, G.R. No. 213910, 2016) A. complaint-affidavit was filed by X accusing Y of libel. After the preliminary investigation, the investigating prosecutor Issued a resolution finding that there is probable cause to indict Y of libel. The resolution was approved and an information for libel was filed against Y. Y filed an appeal with the NCR Regional Prosecutor and then to the DOJ Secretary but was denied. Y filed a petition for certiorari saying there was abuse of discretion in finding a prima facie case of libel against her. CA denied the petition. Is PAGE 88 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW there sufficient probable cause to file the information? /es. Probable cause for the purpose of fing a criminal information needs only to rest on evidence showing that more likely than not, a crime has been committed and was committed by the suspect. Prosecutor alone determines sufficiency of evidence to establish probable cause justifying the fling of a criminal information since the determination of the existence of probable cause is the function of the prosecutor. Judicial review is allowed only when there is a clearly established grave abuse of discretion. (Corpuz v. Del Rosario, GR. 149261, December 15, 2010) When may a warrant of arrest be issued? ‘A: (BERNABE) The judge, upon the filing of the complaint or information with the court, finds probable cause, he/she shall issue a warrant of arrest of a commitment order (ifthe accused had already been arrested) and hold him/her for tral If the judge is satisfied that there is no necessity for placing the accused under custody, he/she ‘may issue summons instead of warrant of arrest. If the judge does not find probable cause, he may wither distniss the case oF give lhe prosecutor a Period of 10 days to file additional evidence. If the judge dismisses the case, he must state the basis of his dismissal However, if the evidence on record shows that, more likely than not, the crime charged has been ‘committed and that respondent is probably guilty of the same, the judge should not dismiss the case and thereon, order the parties to proceed to trial. (People vs. Young, GR No. 213910, 2016) : What procedures does the prosecutor neod to follow in deciding whether to issue warrants of arrest? A: In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally ‘examine the complainant and his witnesses. Following established doctrine and procedure, he shall 41.Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest {Personal determination}; or 2.If on the basis thereof he finds no probable ‘cause, he may disregard the fisca's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven v. Makasiar, G.R. Nos. L- 82585, L-82827, and L-83979, 1988) Q: Distinguish Probable cause of Fiscal from that of a Judge? A: (PERLAS-BERNABE) Determination of probable cause is either executive or judicial in ‘nature. The first pertains to the duty of the public prosecutor during preliminary investigation for the purpose of filing an information in court. At this juncture, the investigating prosecutor evaluates if the facts are sufficient to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof. On the other hand, judicial determination of probable cause refers to the prerogalive of the judge to ascertain if a warrant of arrest should be issued against the accused. At this stage, the judge makes a preliminary examination of the evidence submitted, and on the strength thereof, and independent from the findings of the public prosecutor, determines the necessity of placing the accused under immediate custody in order to {frustrate the ends of justice. (People v. Young, GR 213910, 2016) Q: Can a judge issue a warrant of arrest even though the preliminary investigation is not yet finished? A: Section 6(b) of Rule 112 also states that the investigating judge could issue a warrant of arrest during the preliminary investigation even without awaiting its conclusion should he find after an examination in writing and under oath of the complainant and the witnesses in the form of searching questions and answers that a probable cause existed, and that there was a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (Mangila v. Pangilinan, G.R. No. 160739, 2013) Q: When is warrant of arrest not necessary? A: 4. When the accused is already under detention 2. When the accused is lawfully arrested without awarrant PAGE 89 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW 3. When the offense is penalized by a fine only. (Rute 112, Secs. S{c}-{al) Q: What are the remedies of the accused if there was no preliminary investigation? & 1. Refuse to enter a plea upon arraignment and object to further proceedings on ground of absence of preliminary investigation, 2. Insist on a preliminary investigation. 3. Raise lack of preliminary investigation as error on appeal. 4, File a petition for prohibition and certiorar If the accused files a petition for prohibition and certiorari, he can also ask for the remedy for injunctive relief. Ifthe court where the petition was filed does not grant the injunctive relief within 10 days from the filing of the petition, the lower court shall proceed with the hearing of the case or arraignment. (Rule 65, Sec. 7) Q: Can Hearsay evidence establish probable cause? ‘A: (PERLAS-BERNABE) Since a preliminary investigation does not finally adjudicate the rights ‘and obligations of parties, "probable cause can be ‘established with hearsay evidence, as long as there is substantial basis for crediting the hearsay" (Reyes v. Ombudsman, G.R. Nos. 212593-94, 2016). Q: What is the effect of absence of preliminary investigation? A: The absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect, the jurisdiction of the court or constitute a ground for quashing the information. The tial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation. (illafior v. Viva, G.R. No. 134744, 2001) Q: X filed a criminal complaint against Y for violation of the Forestry Reform Code for illegally cutting timber. The Office of the City Prosecutor recommended the filing of information against Y and was approved by the Office of the Ombudsman. An information was led against Y. Y filed for a Motion for Reinvestigation stating that the complaint filed by X did not mention him as one of the perpetrators of the crime, this was denied by the Office of the Ombudsman. Trial ensued and the trial court found Y guilty of the crim charged. CA affirmed the lower court's decision. Y filed an appeal with the SC arguing that the refusal of the Ombudsman to conduct a reinvestigation was tantamount to a denial of the right to due process, and claimed that he was not afforded a preliminary investigation because he was not named in the complaint led by X. Was Y denied of due process when he was not afforded a preliminary investigation? NO. Absence of a proper preliminary investigation must be timely raised and must not have been waived. This isto allow the trial court to hold the case in abeyance and conduct its own investigation or require the prosecutor to hold a reinvestigation which, necessarily involves a re- ‘examination and re-evaluation of the evidence already submitted by the complainant and the accused, as well as the initial finding of probable cause which led tothe filing ofthe information after the requisite preliminary investigation. There was no basis on the assertion Y was not afforded preliminary investigation, Y participated in the scheduled preliminary investigation conducted prior to filing the criminal case and even denied involvement in the crime, and he also never raised the issue again after the Ombudsman denied his motion and entered a plea of not guilty and participated in the trial. By entering his plea, and actively participating in the trial, he is deemed to have waived his right to preliminary investigation. (Villarin v People, GR No. 175289, August 31, 2011) Q: What is an inquest? Inquest. isan informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly charged in court. (D0J Department Circular No. 61, 1993) ‘ARREST When is a warrantless arrest valid and lawful? PAGE 90 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ——— TTT \: Lawful Warrantless Arrest: . When IN HISIHER PRESENCE, the person to be arrested has committed, is actually committing or is attempting to commit an offense (IN FLAGRANTE —DELICTO ARRESTS). (Rule 113, Sec. 5{al) 2. When an offense has just been committed and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it (DOCTRINE OF HOT PURSUIT).(Rule 113, Sec. 5{b)) Note: (BERNABE) This docttine is different from in flagrante delicto in the sense that this does not require the arresting officer or person to personally witness the commission of the offense. What is important is the immediacy of the arrest reckoned from the commission of the crime. However, itis not enough that the arresting officer had reasonable ground to believe that the accused had just committed a crime; a crime must, in fact, have been committed first and that the arresting officer knows for a fact that it has been committed. (Comerciante v. People, G.R. No, 205926, 2015) Note: The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in warrantless arrest situation than in a case where a warrant is sought from a judicial officer. The probable cause determination of a warrantless arrest is based on information that the arresting officer possesses at the time of the arrest and not on the information acquired later. (People vs. Pestilos, GR No. 182601, 2014) 3. When the person to be arrested is a prisoner who has escaped from a penal establishment fr place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from cone confinement to another [Escaped Prisoner). (Rule 113, Sec. 5{c}) 4, When a person who has been lawfully arrested escapes or is rescued (Rule 113, Sec. 13) 5. By the bondsman for the purpose of surrendering the accused (Rule 113, Sec. 23) 6. Where the accused released on bail attempts to leave the country without permission of the ‘court (Rule 114, Sec. 23) What are the requisites to constitute a valid arrest in flagrante delicto? What are the effects. of such a valid warrantless arrest? ‘A: To constitute a valid in flagrante delicto arrest, two requisites must conour: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. (Martin Villamor v. Vietor Bonaobra, G.R. No. 200396, 2017) A valid warrantless arrest gives the officers the right to search the area for objects relating to the ‘rime and seize them only if they are in plain view. In the course of their lawful intrusion, if items plainly visible were discovered, the police officers would be justified in seizing them. A valid warrantless arrest means that the search and seizure that resulted from it are likewise lawful ‘The objects obtained from such lawful search and seizures are admissible in evidence. (Saraum v. People, G.R. No. 205472, 2016) Q: Are routine baggage inspections conducted by port authorities, done without a search warrant, unreasonable per se? Is it the same as customs search? ‘A: With port security personnel's functions having the color of state-related functions and deemed agents of government, the Bill of Rights applies in this case. Searches pursuant to port security measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to routine security procedures in airports. ‘The reason behind itis that there is a reasonable reduced expectation of privacy when coming into airports or ports of travel. Travelers are often notified through airport public address systems, signs and notices in their airfine tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against, warrantless searches and seizures do not apply to routine airport procedures. It is also important to note that routine baggage PAGE 91 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW inspections are different from a customs search. Although customs searches usually occur within ports or terminals, it is important that the search must be for the enforcement of customs laws. (Dela Cruz v. People, G.R. No. 209387, 2016) Q: Is consent considered invalid If it is premised on one’s belief that there are no prohibited items in his bag? ‘A: One's belief that no incriminating evidence would be found does not automatically negate valid consent to the search when incriminating items are found. His or her belief must be measured against the totality of the circumstances. (Dela Cruz v. People, G.R. No. 209387, 2016) Q: What are the requisites of a valid warrant of arrest? A: 1. The arrest warrant must be issued upon probable cause. 2. Probable cause must be determined personally bya judge. 3. There must be an examination under oath or affirmation of the complainant and the witnesses he may produce. 4. The warrant must particularly describe the person to be seized. (Tabujara Ill v. People, GR. No. 175162, 2008) Q: May the defense file a motion for judicial declaration of probable cause when a warrant of arrest or a commitment order has already been issued or when arraignment has already been sot? ‘A: No. The motion shall be denied by the courts. Section 6 of Rule 112 specifically provides that before a warrant of arrest or a commitment order may be issued by the judge, there must first be a judicial determination of probable cause by the judge himself. In one case, it was held that a ‘motion for judicial declaration of probable cause is moot and academic when a warrant of arrest is subsequently issued. (Hao v. People, G.R. No. 183345, 2014) Q: How is an arrest made? A 1. By actual restraint of the person to be arrested; or 2. By hisiher submission to the custody of the person making the arrest. (Rule 113, Secs. 1- 2) What is the effect of the failure to raise an objection to the irregularity of arrest before arraignment? ‘A: An accused is estopped from assailing any irregularity of his arrest if he fails to raise this issue (or to move for the quashal of the information against him on this ground before arraignment. Any objection involving a warrant of arrest or the procedure by which the court ‘acquired jurisdiction over the person of the accused must be made before he enters his plea} otherwise, the objection is. deemed waived.(Salvador V. Rebellion v. People, G.R. No. 178700, 2010) Q: X was caught through a buy-bust operation for selling shabu wherein she was convicted for the same. She insists that the warrantless arrest, search and seizure carried out by the police offers was illegal since they merely suspected her to have committed a crime. She further alleges that the evidence recovered from her had no evidentiary value for the failure of the buy-bust team to photograph the seized shabu in the presence of a media representative, the DOJ, and any elected public official. Was X's warrantless arrest valid? ‘A: YES. In cases involving the illegal sale of dangerous drugs, “credence should be given to the narration of the incident by the prosecution witnesses, especialy when they are police officers who are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary. Here, X was arrested after commiting a criminal offense that resulted from a successful buy-bust operation. Having been apprehended in flagrante delico, the police officers were not only authorized but were even duty-bound to arrest her even without a warrant. Besides, X's objection to the evidence's admissibility must have been manifested prior to entering her plea, otherwise, itis deemed waived. (People v. Gloria Nepomuceno y Pedraza, G.R. No. 194999, February 9, 2015) PAGE 92 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW F BAIL What is Bail It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (Rule 114, Sec. 1) Q: What are the forms of bail? ‘These are: 1. Corporate surety; 2. Property bond; 3. Cash deposit; and 4. Recognizance. (Rule 114, Sec. 1) Q: When is a person under custody of the law? ‘A: Apperson is “in the custody of law” when he has been arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before the court has acquired custody over him. Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal. (People v. Gako, G.R. No. 135045, December 15, 2000) When is bail a matter of right? Before or after conviction by the MTC; and Before conviction by RTC for all offenses punishable by a penalty lower than reclusion erpetua, death, or life imprisonment. (Rule 114, Sec. 4) !: When is bail a matter of discretion? >Re |. Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment 2. After conviction by the RTC of a non-capital offense. (Rule 114, Sec. 5) Q: What are the bail-negating circumstances? A: If the penalty imposed by the trial court is imprisonment exceeding 6 years, the accused shall be denied bail or his bail be cancelled upon a showing by the prosecution of the following: 1. Accused is a recidivist, quasi-recidivist or habitual delinquent or has committed the crime aggravated by the circumstance of reiteration; [Reciivis} 2. That he has previously escaped from legal confinement, evaded sentence or violated the Condition of his bail without valid justification; [Escaped] 3. That he committed the offense while under probation, parole or conditional pardon; [Probation] 4, That the circumstances of his case indicate the probability of fight if released on bai; [Fight- risk] or 5. That there is undue risk that he may commit ‘another crime during the pendency of the appeal (Crime-risk] (Rule 114, See. 5) Q: What is the rule on bail pending appeal when the conviction by the RTC is punishable by imprisonment exceeding 6 years but not more than 20 years? ‘A: Two scenarios under Rule 114, Sec. 5: 1. If the accused is convicted and sentenced by the RTC to imprisonment exceeding 6 years but not more than 20 years AND none of the above circumstances (recidivist, etc.) is present, the grant of bail is a matter of discretion. The court may or may not grant bail 2, Ifthe accused is convicted and sentenced by the RTC to imprisonment exceeding 6 years bbut not more than 20 years AND one or more Of the above circumstances (recidivist, etc.) Is present, bail should be denied. (Leviste v. CA, GR. No. 189122, 2010) ‘When is hearing for bail mandatory? ‘A; Although in theory, the only function of bal is to ensure the appearance of the accused at the time set for the arraignment and trial; and in practice, bail serves the further purpose of preventing the release of an accused who may be dangerous to society or whom the judge may not want to release, a hearing upon notice is mandatory before the grant of bail, whether bail is a matter of Tight or discretion. With more reason is this true in criminal prosecutions of a capital offense, or of an offense punishable by reclusion perpetua or life imprisonment. Even if the accused did not fle an application for bail and even if the public prosecutor had recommended bail, a hearing should still be held. ‘Such hearing is separate and distinct from the initial hearing to determine the existence of PAGE 93 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW probable cause. (Atty. Franklin G. Gacal v. Judge Jaime | Infante, A.M. No. RTJ-04-1845, 2011) Q: What are the duties of trial judge in a petition for ball in offenses punishable by reclusion perpetua, life imprisonment, or death? A 1, Inall cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation 2. Where ball is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Enrile v. Sandiganbayan, G.R_ No. 213847, 2015) :: What are the conditions for bail? =e 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, inrespective of whether the case was originally filed in of appealed to it; 2. The accused shall appear before the proper court whenever required by the court of these Rules; 3, 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 4, The bondsman shall surrender the accused to the court for execution of the final judgment, (Rule 114, Sec. 2) Q: Is arraignment requit of bail? {A: No, Ball does not require arraignment. As long a8 there is deprivation of liberty or voluntary surrender, one can apply for bail. (Serapio . Sandiganbayan, G.R. No, 148468, 2003) 1d before the granting ‘The trial court could ensure the presence of the accused at the arraignment precisely by granting ball and ordering his presence at any stage of the proceedings such as arraignment. (Rule 174, Sec. 2) Requiting arraignment would place the accused in 2 position where he has to choose between 1) filing a motion to quash and thus delay his release ‘on bail and; 2) foregoing the fling of a motion to {quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional fight not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to ball. (Lavides v. Court of Appeals, G.R. No. 129670, 2000) Q:Is the application for bail a bar to objec on illegal arrest, lack of or irregular preliminary investigation? ‘A: Bail is not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for admission to bail shall not bar the accused from: 4. Challenging the validity of his arrest; or 2. The legality of the warrant issued therefore; or 3. From assailing the regularity or questioning the absence of a preliminary investigation of the charge against him. PROVIDED: That the accused raises them before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case. (Rule 114, Sec. 26) What happens when an accused who is granted b: to appear before the court who requires his appearance? ‘When bail is granted, the accused must appear whenever the court requires his presence; otherwise, his bail shall be forfeited. This authorizes the court to cancel the bail bond. Any ‘motion for bail pending appeal will also be denied because of violation of the conditions of the previous bail. Once an accused escapes from prison or confinement, jumps bail or flees to 2 foreign country, he loses his standing in court. Unless he surrenders or submits to the jurisdiction of the court, he is deemed to have waived any right PAGE 94 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW to seek relief from the court. (People v. Piad, G.R. No. 213607, 2016) Q: Under R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006), is the child in confit with the law entitled to bail? ‘A: Yes. The child has a right to bail and recognizance or to be transferred to a youth detention home / rehabilitation center. The court cannet order the child's detention in a jail pending tial or hearing. (See. 35, R.A. No. 9344) Q: Will a clear showing of frat admission to bail? A: Yes. A clear showing of fragile health justifies ‘one's admission to bail. The court recognizes the ‘country’s responsiblity to the intemational ‘community which arises from the Universal Declaration of Human Rights. This national commitment to uphold the fundamental human Tights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extradtees upon a clear and convincing showing: (1) that the detainee will not be a fight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances. (Enrile v. Sandiganbayan, G.R. No. 243847, 2015) G. ARRAIGNMENT AND PLEA Q: What is an arraignment? A: Arraignment means the proceeding in a Criminal case, whose object is to fix the identity of the accused, to inform him of the charge and to give him an opportunity to plead, or to obtain from the accused his answer, in other words, his plea to the information. (People v. Pillado, G.R. No. L- 7254, 1954) le health justify : When should arraignment be held? ‘A; Accused should be arraigned within 30 days from the date the court acquires jurisdiction over his person, unless a shorter period is provided for by law. The time of the pendency of a motion to quash or a bill of particulars or other causes justifying suspension of arraignment shall be ‘excluded in computing the period. (Rule 116, Sec. 1g) Q: What are the instances where the law provides a shorter period of time? a 1. When an accused is under preventive detention, his case should be raffled within 3 days from filing and accused shall be arraigned within 10 days from receipt by the judge of the records of the case. [R.A. 8493 Speedy Trial Act] 2. Where the complainant is about to depart from the Philippines with no definite date of return the accused should be arraigned without delay. IRA. 4908] 3. Cases under R.A. 7610 (Child Abuse Act), the trial shall be commenced within 3 days from arraignment. Cases under the Dangerous Drugs Act. 5. Cases under SC AO 104-96, ie., heinous crimes, violations of the Intellectual Property Rights Law, these cases must be tried ‘continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case. What is plea bargaining? A: Plea Bargaining is the process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case subject to the court's approval. It usually involves the defendant's pleading guity toa lesser offense or to only one or some of the counts of a ‘multi-count indictment in return for a lighter sentence than that for the graver charge. (Daan v. Sandiganbayan, G.R. No. 163972-77, 2008) NOTE: Acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended party and the prosecutor. Itis further addressed to the sound discretion of the tral court. (Estipona v. Lobrigo, G.R. No. 226679, 2017) @: Section 23 of the Comprehensive Dangerous Drugs Act prohibits plea bargaining in drugs cases. Is this valid? ‘A: NO. This is unconstitutional for being contrary to the rule-making authority of the Supreme Court, given that plea bargaining is a rule of procedure which only the Supreme Court has the sole prerogative to allow or disallow. (Estipona v. Lobrigo, G.R. No. 226679, 2017) PAGE 95 OF 152ATENEO CENTRAL BAR OPERATIONS 2 8 REMEDIAL LAW Q: When may accused enter a plea of guilty to allesser offense? rs 1. Plea to Lesser Offense During Arraignment. During arraignment, the accused may enter a plea Of guilly to a lesser offense PROVIDED there is consent of the offended party AND of the prosecutor to the plea of guilty to a lesser offense thatis necessarily included in the offense charged, ‘The accused may also enter 2 plea of guilty to a lesser offense if the offended party was notified ‘and did not appear in the arraignment of the accused. (Rule 116, Sec. 2) 2, Plea to Lesser After Arraignment But Before Trial. After arraignment but before trial, the accused may stil be allowed to plead guilty to a lesser offense after withdrawing his previous plea ‘of not guilty. No amendment to the complaint or information is necessary. (Rule 116, Sec. 2) 3. Plea to Lesser Offense after Trial Has Begun. ‘After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party if the prosecution does not have sufficient evidence to establish the guilt of the accused for the crime charged. The judge cannot Con its own grant the change of plea. (People vs. Kayanan, G.R. No. L-39355, 1978) Q: What should the ruling on the motion to plead guilty to a lesser offense contain? ‘A: The ruling on the motion must disclose the strength and weaknesses of the prosecution's evidence. Absent any finding on the weight of the evidence on hand, the judge's acceptance of the defendant's change of plea is Improper and irregular. (Estipona v. Lobrigo, G.R. No. 226679, 2017) Q: What should the court do when the accused pleads guilty to a capital offense: A 1. Conduct a searching inquiry into the voluntariness and full comprehension of the ‘consequences of the plea. 2. Require prosecution to present evidence to prove the guilt and precise degree of culpability, of the accused. 3. Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. (Rule 116, Sec. 3) of Q: What are the grounds for suspen: arraignment? A 1. There exists a prejudicial question 2. Accused appears to be suffering from an unsound mental condition which renders him unable to understand the charge against him and to plead intelligently thereto. 3. There's a petition for review pending before the DOJ or Office of the President, however the period of suspension shall not exceed 60 days ‘counted from the filing of the petition for review. While the pendency of a petition for review is a ground for suspension of the arraignment, the Rules on Criminal Procedure limits the deferment ofthe arraignment toa period of 60 days reckoned from the fling of the petition with the reviewing office. Ifollows, therefore, that after the expiration of said period, the tral cour is bound to arraign the accused or to deny the motion to defer ‘arraignment. The trial cour has to set the date of arraignment even before the lapse of 60 days. (Aguinaldo vs. Ventus, G.R. No. 176033, 2015) H. MOTION TO QUASH What are the grounds for a motion to quash? Facts charged do not constitute an offense Court has no jurisdiction over offense charged 3. Court has no jurisdiction over the person of the accused 4. Officer who filed the information had no authority to do so 5. Does not conform substantially to the prescribed form 6. More than one offense is charged except when a single punishment for various offense is prescribed by law 7. Criminal action or liability has been extinguished by prescription 8 Contains averments wic, if true, would constitute a legal excuse or justification 9. Accused has been previously convicted or acquitted of offense charged, or case has been dismissed or otherwise terminated w/o PAGE 96 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW the express consent of the accused (double jeopardy). (Rule 117, Sec. 3) ‘An affidavit of desistance or pardon is nota ground for the dismissal of an action, once it has been instituted in court. (People v. Salazar, G.R. No. 181900, 2010) @ Is the personal examination of the complainant and his witnesses by the judge mandatory in finding probable cause for the issuance of a warrant of arrest? Would lack of this examination be a valid ground to quash the warrant? ‘A; No. What the Constitution underscores is the ‘exclusive and personal responsibilty ofthe issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not requit to personally examine the complainant and witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) ifon the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the ‘submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven v. Makasiar, G.R. No, 825885, November 14, 1988) Q: Distinguish Motion to Quash from Demurrer to Evidence. A: Creer Paar Buea Filed before the | Filed after the defendant enters his | prosecution has rested plea its case Does nat require prior | May be fled elthar wi leave of court or wio leave of court Based on mailers | Predicated upon’ found onthe | matters outside of the ‘complaint cor | complaint or information information such as the evidence or lack of it If granted, dismissal | If granted, is deemed of the case will not | an acquittal of the necessarily follow | accused [See Sections 5 and 6 of this Rule, where another complaint or information may be filed by order of the court] If denied by grave | If denied, shall not be | abuse of discretion, | reviewable by appeal then certiorari or | or certiorari before: prohibition lies Judgment but may be reviewable via Rule 65 (Choa v. Choa, G.R. No, 143376. November 26, 2002). Q: Is the filing of a Demurrer without express leave of court a waiver of the accused's right to present evidence? ‘A: "When the accused files such motion to dismiss without express leave of court, he WAIVES the Tight to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.” The RTC did not need to inquire into the voluntariness and intelligence of the waiver, for her opting to file her demurrer to evidence without first obtaining express leave of court effectively waived her right to present her evidence. (People v. Cristobal, G.R. No. 159450, 2011) : Whats the primary test in deciding whether a motion to quash must be sustained on the ground that the complaint or information charges no offense? ‘A: The fundamental test in determining whether a motion to quash may be sustained based on this, ground is whether the facts alleged, if HYPOTHETICALLY ADMITTED, will establish the essential elements of the offense as defined inthe law. Extrinsic matters or evidence aliunde are not considered. (Herminio Disini v. Sandiganbayan, GR. Nos. 169823-24, 2013) Q: What is the effect of sustaining a motion to quash? A: Es Ea PAGE 97 OF 152ATENEO CENTRAL BAR OPERATIONS 2078 REMEDIAL LAW ‘@Facis charged do not | » Court may order constitute an offense that another ‘© Officer who filed the | information be information had no} filed or an authority to do s0 amendment ‘It does not conform | _thereot be made substantially to the prescribed form + More than one offense is charged ‘Criminal action or | © Gourt must labiily has-been} stato, in its extinguished order granting ‘Avorments would | the motion, the release of the accused if he Is in custody or the cancellation of, his bond if he is oon bail Court cannot order a new complaint or constitute a legal excuse or justification Accused has been previously convicted or acquitted of the offense charged information ‘© Court has no jurisdiction | Court should over the offense | remand of forward the case to the © Court has no jurisdiction proper court, not over the person of the accused to quash” the complaint or | information (Rule 117, Secs. 5-6) Q: What happens when the court 1) orders a new complaint or information to be filed and 2) does not orderlorders but no new information is filed? A Lae a PIN Teese) TeV on Uren md fess) The accused, ifn custody, shall be discharged unless he is also in custody for another charge a eUr) recy The accused, ifin custody, shall not | be discharged | unless admitted | to bat Rule 177, Sec. 8) Q: What Is the remedy of the accused should the motion to quash be denied? ‘A: A patton for certioar is not the proper remedy absent any showing of arbitrariness. The remedy is for the movant to go to tial without prejudice to reiterating the defenses invoked in the motion to quash. In case of conviction, he may appeal and assign as error the denial ofthe motion to quash (Lalican v. Vergara, G.R. No. 108619, July 31, 1997) What are the requisi double jeopardy? A 1. First joopardy must have attached @. Accused must have been convicted or acquitted, or the case against him was dismissed or terminated without his express consent b. Made by a court of competent jurisdiction ©. Valid complaint or information d. Accused has been arraigned 2. First jeopardy must have been validly terminated 3. The second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt or frustration thereof. (Rule 117, Sec. 7) 8 required to invoke Q: What are the requisites of a provisional dismissal? Consent of the prosecutor Consent of the accused; Notice to the offended party; and Public prosecutor is served with a copy of the order of provisional dismissal. (Rule 117, Sec. 8) 4 2. 3, 4. 4: Are there exceptions to the general rule on provisional dismissals? A: Yes. The general rule provides that a criminal case that results to an acquittal with the consent or upon motion of the accused will not constitute double jeopardy. The exceptions would include the following: 1. Insulficiency of evidence 2. Denial of the right to a speedy trial (Philippine Savings Bank v. Bermoy, G.R. No. 151912, September 26, 2005) PAGE 98 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW @ When does the provisional dismissal become permanent? ‘A: The provisional dismissal shall become permanent if not revived within: Baa PENALTY ane If penalty is 6 years and below, or a fine of any ‘amount, or both 1 Penalty exceeds 6 years 1 year after issuance of order 2 years afer issuance of order ‘One year shall start from the receipt of the prosecutor of the order of provisional dismissal. If no reinstatement is made within the period, the accused can no longer be prosecuted. (Rule 117, Sec. 8) @: When can the State revive a case provisionally dismissed with consent of the accused? ‘A: When a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived by the State within the time prescribed by the rules. There is no violation of due process as long as the revival of a provisionally dismissed complaint was made within the time-bar provided under the law. (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, 2015) 1. PRE-TRIAL, : Where is pre-trial mandatory? Itis mandatory in |. Sandiganbayan Regional Trial Court Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, Municipal Circuit Trial Court (Rule 118, Sec. 1) eNore : What are the purposes of pre-trial? To simply the issues To shape up the testimonial and documentary evidence 3. To clear the desks for trial vere Pretrial is not a mere technicality in court proceedings for it serves a vital objective: the simplification, abbreviation, and expedition of trial, ifnot indeed its dispensation. (Tolentino v. Heirs of Laurel-Ascalon, G.R. No. 181368, 2012) ‘What are the matters considered during pre~ trial? \: The matters considered in a pre-trial are: Plea bargaining Stipulation of facts Marking for identification of evidence Waiver of objections to admissibility of evidence 5. Modification of the order of trial if the accused admits the charge but interposes a lawful defense 6. Such matters as will promote a fair and expeditious trial ofthe criminal and civil aspects of the case (Rule 118, Sec. 1) Aepep ‘All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties and/or their counsels. (-8{9), AM. No, 03-1-09-SC) Q: Who is in charge of questioning in pre-trial? ‘A: During the pre-trial, the judge shall be the one to ask questions on issues raised therein and all questions must be directed to him to avoid hostilities between parties. (/-B[7], A.M. No. 03-1- 09-80) Q: What are the instances when presence of the accused is required by law? A: Accused is required to be present during: 1. Atarraignment and plea, whether of innocence or of guilt 2. During tial, whenever identification purposes; 3. Whenever required by the court for purposes of identification; and at 4, Promulgation of sentence. Exception: In light offenses, when the accused may appear by counsel or representative. (People v. De Grano, G.R. No. 167710, 2009) necessary for Q: Are modes of Discovery available to Criminal Procedure? PAGE 99 OF 152ATENEO CENTRAL BAR OPERATIONS 2018 REMEDIAL LAW ‘A: The Modes of Discovery under Rules 23 to 29 do not apply to criminal procedure. The applicable provision is Sections 12 and 13 of Rule 119 Q: What is a demurrer to evidence? A: A molion to dismiss filed by the accused after the prosecution has rested its case; the grounds being insufficiency of the evidence of the prosecution.(Sec, 23, Rule 119, Revised Rules of Criminal Procedure) Q: What is the lence? fect of the denial of a demurrer ted els Pros oo fenised may sill Acoued waves the} adduce evidence in his | right to present | |

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