PROVISIONAL REMEDIES

We are now on provisional remedies from Rule 57 - 61. So there are 5 provisional remedies.
Just remember the word AIRRS.
But if you are asked, don't say attachment as a provisional remedy but rather it is preliminary
attachment. Don't say injunction as a provisional remedy but rather preliminary injunction. As
to receivership, yes it is both an action and a provisional remedy. Technically, it is not the
receivership which is the provisional remedy but rather appointment of a receiver because in
receivership it is also a kind of action. And then you have replevin or delivery of possession
of personal property. And then fnally you have support pendente lite. Support is not a
provisional remedy but it is support pendente lite which is a provisional remedy.
Now, let me give you a bird's eye view of these provisional remedies.
First, because they are provisional, they cannot stand alone. Being provisional remedies,
they are dependent, contingent, or adhere to a principal action. So that you cannot fnd an action
for preliminary attachment. It must always be adhered to the principal action.
Q: Because of that, what are the principal actions to which these provisional remedies attach?
A:
1.)As to preliminary attachment, the principal action is recovery of real or personal
property. If you try to look at Section 1 Rule 57, you will fnd out that all the actions there are
for recovery of either real or personal property.
2.)As to preliminary injunction, the principal action is injunction although these seldom fnd, in
actual practice, an action for injunction because it always goes with some other actions. Like
for example specifc performance and injunction plus damages with prayer of
preliminary injunction. Is there an action which is injunction? Yes. Under Section 4 of Rule
39.
3.)As to receivership, receivership is the principal action. The provisional remedy is
appointment of a receiver. If you go and look at Section 4 of Rule 39, you will see that
receivership is an action.
4.)As to replevin, the principal action is recovery of personal property. In replevin, a
foreclosure on mortgage is possible.
5.)As to support pendente lite, the principal action is support.
Q: Which court has jurisdiction over these provisional remedies?
A: General answer is because they are contingent, that court which has jurisdiction over the
principal action also has jurisdiction over these provisional remedies. Precisely because
they adhere to the principal action.
But let us be more specifc, because prior to the 1997 Rules of Court injunction, for example, is
cognizable only by the RTC. But with RA 7691 (expansion of the inferior courts) and looking at
Rule 70 (Sections 15 and 19, all about injunction), therefore under the present rules, the
preliminary injunction is now cognizable by the inferior courts. Before the efectivity of the 1997
Rules, that was applied also by jurisprudence only on unlawful detainer. But now it applies to
both unlawful detainer and forcible entry as is specifcally provided under Rule 70.
Q: How about support pendente lite which adheres to an action for support?
A: Remember that it cannot be taken cognizance of by the inferior courts because support is an
action which is incapable of pecuniary estimation. Therefore, support pendente lite is only
cognizable by the RTC because support to which it adheres is incapable of pecuniary
estimation. Exception: In criminal cases. Because the present rules on criminal procedure
speaks that once a criminal case is fled, the civil aspect is deemed instituted with it
under Rule 111. Hence, if the action is criminal in nature but cognizable by the inferior court
and the prosecution includes the civil action for support, then support pendente lite can be taken
cognizance of by the inferior courts. Example: complaint for seduction which is cognizable by
the inferior courts. And together with that you pray for the acknowledgment of the child (suppose
merong anak) and you pray for support pendente lite. In this instance the support pendente lite
is taken cognizance of the inferior courts.
In Receivership: both inferior courts and RTC.
In Replevin: both inferior courts and RTC.
In Injunction: both inferior courts and RTC.
In Attachment: both inferior courts and RTC depending now on the principal action to which the
provisional remedy attaches.
Q: What are the requirements in applying for these provisional remedies attaching to the
principal action?
A:
1.)In case of preliminary attachment, what is required is the afdavit and bond.
2.)In case of preliminary injunction, the requirement is a bond and a verifed petition.
3.)In case of receivership, also a bond and verifed petition.
4.)In case of replevin, afdavit and bond.
5.)In case of support pendente lite, only a verifed application. No bond.
Q: How do you secure, aside from these requirements, the writs for these provisional remedies?
A:
1.)In case of preliminary attachment, you may secure it ex parte. Although the writ cannot be
implemented ex parte but it can be issued ex parte.
2.)In case of preliminary injunction, as a general rule you cannot secure it ex parte under
Section 5, Rule 58, although in cases of urgency, that injunctive relief for a period of 72 hours
can be granted summarily (meron pa din notice and hearing for due process). That is how
stringent in applying for injunctive relief.
3.)In replevin, you cannot get it ex parte.
4.)In support pendente lite, there is a peculiar provision under Section 2 (Rule 61) wherein the
respondent, within a period of 5 days from notice, is bound to fle his comment. And if he
does not fle his comment, the case will be heard on the application only (Section 3) within 3
days.
Q: Once the writ is granted or issued, how do you discharge the writ?
A:
1.)In case of preliminary attachment, it may be discharged under Sections 5, 12 and 13 of Rule
57. Cash deposit or counter bond (Secs 5 and 12) or a motion questioning the propriety or
regularity of the issuance of the writ (Section 13).
2.)In case of preliminary injunction, it cannot be discharge it by a bond neither if it be granted by
a bond, although bond is required but a counter bond does not discharge a writ of
preliminary injunction.
3.)The same thing with replevin and receivership, you cannot discharge it with a bond. You
have to fle a motion questioning the propriety or regularity of the issuance of the writ.
4.)In support pendente lite, there is no bond. If the judgment is in favor of the respondent, the
support pendente lite must also be discharged because it has no basis to stand with.
RULE 57
PRELIMINARY ATTACHMENT
Provisional remedy: Preliminary Attachment
Principal action: recovery of either real or personal property
Memorize Section 1 (the grounds) of Rule 57. Remember, you will appreciate Rule 57 had
you understood Rule 39 because there are cross-references between these provisions. Section
7 of Rule 57 you will fnd out that that is also practically the same or similar provision in Section
9-11 of Rule 39. Section 16 in Rule 39 is Section 14 Rule 57, and Section 7 Rule 60 (Replevin).
Try to analyze it, pare-pareho. The 3rd party claimant will simply execute an afdavit. The sherif
will not be bound to hold it but deliver it to the 3rd party claimant. Yang v. Valdez (was given in
the bar about 5 years ago) - the 5 day period of redelivery bond. You have now to distinguish a
bond from a counter bond. Later on, remember that it is diferent from a supersedeas bond
which you have studied and under Settlement of Estate. Here, we are dealing with bond and
counter bond. Bond is required of the applicant. Counter bond is required of the person
against whom the application was fled. Deposit can be cash either on the part of the plaintif
or the defendant as the case may be.
Q: Take note of Section 1. When can you fle or apply for a writ of preliminary attachment?
A: It says there at the commencement of the action or at any time before entry of
judgment.
Q: Bakit? Why should you not apply for a writ of preliminary attachment when judgment has
already been entered?
A: Because your remedy is not attachment but your remedy is execution under Rule 39.
Remember when we were discussing Section 27-29 of Rule 39 (regarding redemption and
redemptioner), so that when a property was sold on attachment, there are possible
redemptioners because Section 1 says at the commencement of the action, you already apply
for the issuance of the writ of preliminary attachment. And if the writ is issued and implemented,
the sherif, to whom the writ is addressed, takes actual custody of the property if it is capable of
manual delivery. In the case of replevin, ibibigay ng sherif sa applicant after 5 days if there is no
redelivery bond is fled. But in the case of preliminary attachment, kukunin niya yan for safe
keeping. And it will only be sold after judgment is rendered in favor of the plaintif
(applicant).
Q: Once a property has been replevined and again it was attached, is it still valid?
A: Yes. once the property is replevined it can still be attached. But if the property is attached it
cannot be replevined. Because in attachment, you may not take possession but in replevin you
have to take possession.
Q: A 3rd party can deal with the property that has been attached. Suppose it was mortgaged
with a bank after it has been attached, is it possible?
A: Yes. The mortgage becomes a lien subsequent to the lien under which the property was sold
if ever the plaintif wins in the case.
You cannot just attach right and left if there is no ground. That is why let me emphasize Section
3 of Rule 57.
1.There must be a valid cause of action. Because preliminary attachment is only provisional so
if the cause of action is invalid, the preliminary attachment is also invalid.
2.There must be a valid ground among the 6 enumerated grounds under Section 1.
3.There must be no other security. Or if ever there is, the security is not sufcient.
4.The order must be equivalent to the sum for which you are asking.
NOTE: These 4 requirements must be contained in an afdavit. So your afdavit is pro forma or
insufcient if it does not allege these 4 basic requirements as enumerated under Section 3.
Aside from that afdavit of merits, bond must accompany it.
Q: What do you notice in the grounds under Section 1?
A: Yung frst three, it is a kind of action. Yung last three, it is the party involved.
First action, it is an action for specifc amount of money and damages other than moral and
exemplary damages on an action arising from law, contracts, quasi-contracts, delicts, quasi-
delicts against a party who is about to abscond in fraud of creditors.
Q: Why other that moral and exemplary damages?
A: There is no basis. The basis must be personal, wounded feelings etc.
Q: Ano yung mga requirements niyan?
A:
1.Your actions should be for sum of money and damages, other than moral and exemplary
damages.
2.Your cause of action is based on a law, contract, quasi-contract, delict, or quasi-delict.
3.It must be directed against a party who is to depart from the Philippines with intent to
defraud.
Second action, an action also for recovery. But look at the defendant here, the defendant is a
public ofcer, ofcer of a corporation, attorney, factor, broker, agent, or clerk. In other words
there must be a fduciary relationship between the applicant and the respondent.
Third action, recovery of possession, this time, against a party who removed, disposed, or does
not disclose it, or who hid these properties.
Q: What is then a common denominator here?
A: There is an element of FRAUD.
When you go to paragraphs d, e, and f the phraseology is diferent. It is against a party this time,
not anymore to the kind of action but to the kind of person who is a party defendant.
In paragraph d, a person who is guilty again of fraud in contracting a debt or obligation upon
which the action is brought or in the performance thereof.
Javellana v. D.O. Plaza Enterprises, Inc., L-28297, March 30, 1970 illustrates the rule prior to
the 1997 Rules of Court.
Facts of this case: There was a simple sale of property, let's say the purchase price was P100,
000.00 D.O. Plaza paid 50% and the balance was secured with postdated checks. Plaza took
possession of the property sold. Later on, the checks, which were in payment of the obligation
contracted, bounced. It all bounced. An action for sum of money was fled with prayer of
preliminary attachment using that the respondent was guilty of fraud in contracting its
obligation. When it reached the Supreme Court, the SC said no. Preliminary attachment must
be discharged because there was no fraud in contracting the obligation but there was fraud in
the performance thereof. And at that time, wala pa yung term na in the performance thereof.
Hence, the defendant here won in the sense that the preliminary attachment was invalid.
That is why when they amended the 1997 Rules of Court, using the case of D.O. Plaza, they
included it in the present rules.
Paragraph e, is one against a party who tries to dispose the property again in fraud of
creditors.
SC case: So here is a businessman who was engaged in buying and selling. So when he owed
somebody a sum of money, that somebody fled a case against this businessman and applied
for a writ of preliminary attachment on the ground that the businessman was disposing his
property in fraud of creditors. The SC said NO. He is disposing his property in line of his
business precisely he is in buy and sell. If he does not dispose his property, how will he ever be
able to pay you. The attachment was invalid.
Another SC case: Wherein the businessman who had a sari-sari store. A case was fled
against him for a sum of money and a writ of preliminary attachment was applied for. The SC
said YES, the writ of preliminary attachment was validly issued because there was
disposal of the property in fraud of creditors. Even if the disposal was made in line of his
business, the SC held that the disposal was made at midnight and through the backdoor.
So there is fraud.
NOTE: Paragraph f is peculiar because it speaks about his situation or residence. So in this
instance, any person who left the country and temporarily reside there, you fle an action
and you can apply for a writ of preliminary attachment. But take note of the last phrase
there and those who may be served by publication. So you cross-refer that to Section 15-17 of
Rule 14 on Summons, who must be served through publication. It applies only on actions in rem
or quasi in rem. Actions which are strictly in personam, summons by publication is not allowed.
One of the objectives of a writ of preliminary attachment is to convert an action which is strictly
in personam to an action quasi in rem. Once you convert it, then you can now serve
summons through publication.
Q: In writ of preliminary attachment, there are three stages:
A:
1.Application. Together with the application is the order granting the application.
2.Issuance of the order or the writ of preliminary attachment.
3.Implementation or execution of the writ of preliminary attachment.
NOTE: The frst two stages may be done ex parte. But the last stage must always be with prior
or contemporaneous service of summons. Hence that applied, you can avail of paragraph f of
Section 1 of Rule 57 in converting the action in to an action in rem. Because the writ of
preliminary attachment can be issued even without service of summons.
In paragraph f, nakalagay dun that if a person cannot be found in the Philippines or is
temporarily residing out of the Philippines, then that can be a ground for asking the court to
issue the writ of preliminary attachment. But we said, it says there further, and all those persons
who may be served summons through publication. But sabi natin, who are these persons who
may be served summons through publication? Ala yan diyan. So you go back to Section 15-17
of Rule 14, Extra-territorial service. But we said that even if summons by publication is allowed,
that is only in cases where the action is not strictly in personam (quasi in rem). Sabi natin, so
contradictory apparently. Why? Because you are asking precisely for a writ of preliminary
attachment on that ground but you cannot serve summons to a person if your action is strictly in
personam. Sabi natin, hindi. Ang explanation diyan is that in the application for the writ of
preliminary attachment, there are three stages. Yung una hindi mo kailangan ng summons. So
you can already apply, on the basis that the defendant is outside of the country. You apply
irrespective whether the summons can be issued or not because it can be issued ex parte. But
dito lang sa issuance. Pero pag hawak na yan ng sherif, iimplement na niya under Section 7,
levy on attachment, hindi ka pwede mag levy on attachment if the court has not acquired
jurisdiction over the person of the defendant. Kaya nakalagay diyan, prior or contemporaneous.
Prior is Mangila case. Contemporaneous sabay na ng pag implement ng writ of preliminary
attachment ang service of summons.
When the property has been attached, it does not mean that the property is already yours. You
have to wait for the judgment before you can dispose of the property either by public auction or
possess it as owner.
Q: Suppose the plaintif loses under Section 20, what will answer for damages?
A: The bond will answer for damages.
NOTE: This is the peculiarity of rule 57. Unlike all other bonds which answer only for damages,
it is only in Rule 57 will the bond answer for the judgment. So you underline the word judgment.
Kasi dito mo lang makikita yan sa Rule 57. Because in Rules 58-61, the bond answers for
damages. While in Rule 57, the bond answers for judgment. Ano'ng ibig sabihin nun?
Sometimes damages can be separated from judgment. But in most instances hindi. Let's say
defendant is ordered to pay P20,000 as principal obligation and damages of P10,000, so
hiwalay. In other cases the bond or counter bond only answers for the P10,000. But in
preliminary attachment, the bond or counter bond answers for the P30,000, judgment and
damages.
Do not be misled therefore by cross-references to Section 20 by the other rules. Do you notice
that? di ba puro cross-references. Section 8 of Rule 58, Section 9 of Rule 59, and Section 10,
Rule 60 cross-refer to Section 20, Rule 57. The cross-reference is correct but the diference is
that the bond and counter bond in all these provisional remedies answer only for damages. But
in writ of preliminary attachment because of its precedent section which is Section 19, which
answers for any judgment.
Q: How do you discharge the writ of preliminary attachment?
A: So the writ of preliminary attachment has already been issued or served as the case may be.
At any stage, you can always discharge the writ. Under Sections 5, 12, and 13. These are
important sections. Read that and you will note the diferences.
Q: What is the diference between Section 5 and Section 12?
A: Apparently, there is no diference. But if you try to analyze it, there is a diference. The means
to discharge are the same which is either a cash deposit or counter bond, which you fnd in
Section 5. If you go to Section 12, pareho din ang means which is a cash deposit or a counter
bond. Tignan niyo, sino ang hihingi ng discharge of the writ? Siyempre that party against whom
the writ was issued. A is the plaintif and B is the defendant. If A applies for preliminary
attachment and it was issued, who seeks for the discharge? Siyempre si B. Is it possible that A,
in an instance, may also seek the discharge of the writ? Ordinarily no, but if B as a counterclaim,
which is permissive, B will ask for a writ of preliminary attachment against A. Thus A may also
seek the discharge the writ. A can fle for a counter bond.
Section 5 speaks of a cash deposit or a counter bond. The counter bond will answer for the
judgment. The cash deposit will also answer for the judgment, May pinagkaiba ba yun?
Siyempre iba yun. Yung cash deposit, pera na yun. But businessmen don't usually do that. What
they do is through surety. And this is an instance where surety is automatically impleaded
without the requisite service of summons in acquiring jurisdiction over the person of the
defendant.
The diference is, in Section 5, the writ has not been implemented but it is already issued. In the
case of Section 12, the writ has already been implemented and custody of the property sought
to be attached is already in the hands of the sherif. The property is already in custodia legis.
Regardless in what stage, whether the writ was just issued but not yet implemented or is
contemporaneously implemented, the defendant can immediately fle for a counter bond. The
counter bond, in efect, automatically discharges the writ.
Section 13, another means of discharging the writ by fling a motion in court questioning the
propriety or regularity of the issuance of the writ. Whether the writ has already been
implemented or not, you can avail of Section 13.
Q: What are some grounds of irregularity in the issuance?
A: Insufciency of the bond. Remember that the requirement for the issuance are afdavit and
bond. So if the afdavit for example did not contain the required statement as provided for in
Section 3 of Rule 57, then that is an irregularity. Or it contains but it was untruthful. It was a lie,
then it is irregular.
Or suppose the bond which was fled was very insufcient. There was a claim for P20M and the
bond was only P1M. So, the issuance of the writ is irregular and improper.
Or it was issued by the court on the ground not specifcally stated in Section 1 of Rule 57.
Because the 6 grounds there are EXCLUSIVE. Wala ng iba.
Remedies are Sections 5, 12 and 13. These are the means to discharge the writ of preliminary
attachment.
Q: Can one avail of Section 12 and avail again Section 13 in the same case?
A: Yes, it can happen. If I was a businessman and a case was fled against me and a writ of
preliminary attachment was issued against my sari sari store, and the writ is implemented, I
cannot proceed with my business because it is already in custodia legis. I cannot start selling
this because the property which has been attached is reserved for judgment. Remedy? I
immediately fle a counter bond, and the writ is automatically discharged. So i can again
continue in selling my merchandise. Meanwhile when there was no writ anymore, I'll fle a
motion before the court claiming that the issuance was improper and irregular. I'm not praying
anymore for the discharge of the writ but rather for the discharge of the counter bond. So answer
is YES. One can avail both 12 and 13.
Q: How about Sections 13 and 5?
A: Hindi. Kasi yung Section 5 before the implementation.
I was saying, it is possible that the applicant loses in the case. It is not a guarantee that when
you ask for a writ of preliminary attachment, you will win in the case. Even if you win in the case,
but you may lose in your application for the writ of preliminary attachment.
Q: How can this happen?
A: It can happen in such a way that during the proceeding, it was established that the issuance
of the writ was irregular and improper. And what does the rule provide? The rule provides that if
this happens right there and then before entry of judgment, you already have to fle for damages.
You cannot fle that after entry of judgment because you are considered to have waived your
right. And remember Section 46 of Rule 39, you can fle now a case against the surety even
without impleading the principal. In like manner, provided there is notice, you can go after the
surety if it is a counter bond or surety bond.
Q: How about a 3rd party claim, which you fnd in Section 14 of Rule 57?
A: If there is a 3rd party claim, the same provision as you fnd in Section 16 of Rule 39 applies.
The 3rd party claimant executes an afdavit, gives it to the sherif and then the sherif will deliver
back the property, which has been attached, to the 3rd party claimant unless the applicant
secures the sherif with another bond. Pareho rin yan sa Replevin, Section 7 of Rule 60 and
Section 16 of Rule 39.
NOTE: Common error of the students think that since the 3rd party claimant fles his claim, then
the 3rd party claimant should fle for the bond. Atty. Brondial corrects that it is not. The applicant
for the writ who should fle the bond without prejudice, of course, to a fling a case against the
3rd party claimant who fled a 3rd party claim frivolously and fraudulently. And that case can be
threshed out in the same action or even in a separate action.
RULE 58
PRELIMINARY INJUNCTION
Provisional Remedy: Preliminary injunction
Principal Action: Injunction
We said you fnd an action for injunction in Section 4 in Rule 39. But seldom will you fnd an
action fled specifcally for injunction only. It is coupled always with other causes of action. Like
damages, or recovery of property with injunction and prayer for preliminary injunction and TRO.
Q: When do you apply?
A: We said any court has jurisdiction over injunctive relief.
It is often said that SC has no jurisdiction over an action for injunction. Of course not, in the
sense you do not fle an original action with the SC. But if your action is certiorari which is
cognizable by the SC, you can ask for injunction.
Madaling intindihin ito ngayon, these are always in the papers. Ngayon, maraming mga pulitiko
ang hinahabol at dinidismiss, kaya they are all fling injunctive relief. They are praying for
annulment of the order of dismissal or cancellation of the order of dismissal with prayer for
injunction and writ of preliminary injunction. Where do they go? To the CA because the
defendant here is the DILG. So pwede yun.
While injunction can be availed of in any court, including the SC, but if you read cases and
statements to the efect that you cannot fle for an action for injunction to the SC it is because it
is not a court of original jurisdiction over this action except certiorari, prohibition, mandamus, quo
warranto, habeas corpus.
Q: What are the requirements in order for a party to fle an injunction with prayer for preliminary
injunction?
A: This basic requirement is a right of the applicant.
1.First requirement: The applicant must have a right. This right must be actual, existing
and valid and not just an inchoate right or a right not in esse (substantial).
Example of an inchoate right is the property of your parents. And you claim to be an heir.
You are not entitled to the property unless your parents die. Your right to the property
is just inchoate.
2.Second requirement: There must be a violation of that right or threatened violation.
So the violation may not be actual. It can only be a threat and you can already seek
protection through injunction.
3.Third requirement: The violation or threatened violation will result in irreparable damage
and injuries.
Take note of these three fundamental requirements.
Example is the Idolor case.
NOTE: Preliminary injunction is preparatory to injunction. TRO is preparatory to preliminary
injunction. And within that TRO is the 72 hour period of the TRO. Tatandaan niyo to a.
Preliminary injunction has no time frame. After trial that can become permanent. But remember
that a preliminary injunction is a provisional remedy attached to injunction. So when a
preliminary injunction has become permanent, it means that you already
won the case of injunction. But not the TRO, because the TRO is preparatory to
preliminary injunction. That is why there is a time frame in the TRO
which is 20 days in cases of the RTC and MTC and 60 days of CA.
Q: The requirement is verifed application and bond, when do you apply for this?
A: You apply for preliminary injunction at any time in the course of the
action even at the commencement of the action or anytime thereafter
but before judgment.
Q: Preliminary injunctions are of 2 kinds:
A: Prohibitory injunction or mandatory preliminary injunction.
In prohibitory injunction, you seek to maintain the status quo. In mandatory injunction, you seek
to return to the status quo.
Let me illustrate: Suppose when you go home tonight, you found your home without electricity
because it has been cut by MERALCO for non-payment of your electric bill. So you want a
return to the status quo, so you fle for a mandatory injunction, mandating the MERALCO
to return electricity to your residence.
Suppose when you arrived at home what you got was a notice of disconnection, may ilaw pa
kayo. The notice of disconnection is a warning. It is a threat of a violation of your right or
violation of your contract. So what do you fle? Prohibitory injunction, you seek to maintain the
status quo of having lights in your house.
Q: Can you get injunctive relief ex parte?
A: In no way. It must always be after hearing. You cannot get injunctive relief ex
parte. I would like to emphasize there as to where you are applying because this has always
been a case for discussion. If you apply for the writ for injunctive relief before a multi-sala court,
there are 2 notices necessary for issuance of the writ of preliminary injunction.
Q: Ano ba ang multi-sala court?
A: There is only one RTC Manila. But there are many salas, RTC Branches 45-48, etc.
Quezon City marami din yun. Yan ang tinatawag na multi-sala. Pag 2 na yan, multi-sala na yan.
The rules provide that when you apply for injunctive relief before a multi-sala court, the executive
judge, even before hearing the case, must give notice of rafe.Rafe pa lang,
may notice na dapat.So that if there is no notice of the rafe
date, it is already violative of the due process clause of the
constitution. Kung single sala, wala na. Ang notice mo ay notice of
hearing because hearing is mandatory.But if it is in Metro Manila
or if it is a multi-sala court, 2 notices, Notice of rafe and notice
of hearing.So ang ipapadala munang notice is when is the rafe date and your
failure to attend after notice, you waive your right to be present at the rafe. And then later on is
notice of hearing.
During the hearing, the applicant should present evidence and the defendant should present his
evidence. Ordinarily, what is given is TRO. This TRO, if it is issued by
the RTC or MTC, is good only for 20 days.Upon expiration, it
cannot be renewed. It is grave abuse of discretion on the part of the court to extend even upon
agreement of the parties cannot and should not be extended. In the case of the
CA, it is 60 days.
Q: Where do you count the 20 day or 60 day period as the case may be?
A: From issuance.
I would like to fnd out, that every TRO cannot be granted ex parte except on a
very urgent matter where the hearing can be done
summarily.In the case of a TRO which is good for 72 hours, this time from notice.
Q: Why 72 hours?
A: Kasi dito sa Pilipinas, ordinarily non-working day ang Saturday and Sunday. So hindi
pwedeng 48 hours baka kasi pumatak dun sa Saturday or Sunday. Kaya 72 hours
because it is 3 days, kahit yun pumasok ng friday ng
hapon, papatak yun ng lunes. O pag binigay yang ng
saturday, papatak pa din yan ng lunes.
If the court continues your 72 hour TRO to a full 20
day TRO, the 72 hours will be included in the 20 days.
This time counted from the issuance of the TRO of
the 72 hours.
Q: Why 20 days?
A: It is because this is roughly 3 weeks. And within a 3 week period, the court must
hear whether or not to grant the writ of preliminary
injunction.The court is a very busy body and you cannot set it for hearing immediately
because there are other cases fled before it.
The only way is to question the propriety or regularity
of the issuance
Q: How do you discharge the writ?
A: You cannot discharge the writ through a counter bond.. But even then, chances are it will just
be denied. Kaya pag na issue ang TRO for 20 days, wait ka
na lang after that period.That's why it's not that long because it is really to
be threshed out whether there was violation of the right, whether it will cause irreparable
damage or injury.
Any action, if there is a violation of a right, you can
ask for injunctive relief.
How about damages, you are cross-referred to Section 20 of Rule 57. But the bond
here answers only for damages
R!LE "# RE$EIVERS%IP
When we talked about receivership it is both a provisional remedy and a principal action.
Although it can happen that receivership is attached as a provisional remedy to an action for a
recovery.
&' What is the principal action for receivership?
A: If the receivership is used as a provisional remedy, the principal action here is for re(o)ery
of *ro*erty whether real or *ersonal
&' What would be the jurisdiction?
A' urisdiction shall depend upon the principal action. It can be taken cogni!ance by the inferior
court or the regional trial court. "ou cannot file it to the #ourt of Appeals or the $upreme #ourt.
"ou only file original actions in the $# or #A in a very peculiar actions and we already know that
when we studied jurisdictions. #oncurrent jurisdictions like certiorari, prohibition, mandamus,
%uo warranto, habeas corpus.
&' If you file an annulment of judgment of the &'#, where will you file it?
A' We do not apply (ule )* because it is for the order of the (egional 'rial #ourt, we apply the
general rule that no actions on appeal can go to the #A or $# because it is a judgment of &'#.
('# has jurisdiction even though it is annulment of judgment.
If receivership can be taken cogni!ance depending on the principal action, but if the principal
action is receivership itself since receivership may be the principal action. While preliminary
injunction can never be the principal action, what is the principal action there is injunction. In
receivership it may be a principal action or provisional remedy. If it is a provisional action it must
attached to a principal action which is recovery. +ut unlike attachment, $ec. , (ule -*, states
the grounds for attachment. $ec. , (ule -. also gives the different kinds of instances where you
can apply for receivership.
&' What are these instances?
A' $ec. , (ule -.
a. When it appears from the verified application, and such other proof as the court may
re%uire, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve it/
b. 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/
c. After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid e0ecution when the e0ecution has
been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise carry the judgment into effect/
d. Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the
property in litigation.
&' What is the purpose or the reason for assigning or appointing a receiver in these instances?
A' It is for the preservation, administration or disposal of the property.
Note' "ou must be logical in your analysis. Why do we have to preserve the property? If the
property is already there, why do you have to preserve it? +ecause it is not being preserve. It is
in danger of being loss, dissipated, damage or the value is being diminished. If such reason
does not e0ist, you cannot ask for receivership. In administration, the value may be diminished
hence the need for receiver to retain the value of the property or the property is supposed to be
disposed but it is disposed irregularly.
1ven a mortgagee can file for a receivership because the property being mortgaged is in danger
of being loss, dissipated, destroyed or the value diminished.
&' 2ow do you apply for receivership? 3rocedure for receivership?
A' 4ile an application for appointment of a receiver which is ordinarily a verified petition.
&' What do you mean by a verified petition?
A' When you talk about verified petition it simply means that the petition must be under oath.
5erified under oath.
&' When do you apply?
A' 4rom the commencement of the action even after appeal because the property is still in
danger of being loss, dissipated, destroyed or its value diminished.
&' Where do you apply? Is it in the appellate court or trial court?
A' Amendment of the rule, the appellate court may allow the application to be filed in and
decided by the court of origin and the appointed receiver of the court of origin has control over
the property under receivership. $ec. , (ule -. last paragraph.
'his amendment is e0ceptional because under $ec. . (ule ), perfection and loss of
jurisdiction. 'he court of origin has no more jurisdiction over the action but still the court of origin
can still appoint a receiver, this is the reason why it is e0ceptional. If you look at the ,.67 rule
which was amended by the ,..* rules of court hindi pa yan pwede but now pwede na. because
the rationale there is what is actually appealed is not the subject matter of receivership but the
principal action, here it is merely a provisional remedy. $ir does not totally agree with that
because as said earlier receivership may be a provisional remedy or a principal action, so if it is
a principal action definitely it is appealed there. 'he real reason there is that it is in the e0ercise
of its residual jurisdiction.
&' What are the re%uirements?
A' Affidavit and bond.
&' What constitutes the affidavit?
A' 'he affidavit here pertains to the affidavit of merits, same as (ule -* $ec. 8 re%uirements but
different grounds. It is a mandatory re%uirement for receivership.
&' Who should file the bond?
A' 'he applicant and the receiver shall file the bond. An applicants bond and a receivers bond
because the applicant may not be appointed as the receiver. As much as possible, a party to the
case should not be appointed as receiver, if you are the applicant it does not follow that you will
be appointed as the receiver. +ecause these are 9 different bonds they must undergo 9 different
things. 'he applicants bond answer for the damages caused by the applicant while the receivers
bond answer for the damages caused by the receiver.
&' What happens if the applicant is appointed as the receiver himself? :oes he file 9 bonds?
A' "es, that;s why you do not limit yourself to replevin where the bond is twice the value of the
property. It can also happen here that , person files 9 kinds of bonds although not necessarily
the value of the property because here just like attachment it is with the discretion of the court.
'he court may only re%uire his bond not necessarily an amount e%ual to the value of the
property but in replevin the rules specifically provide that the bond must be twice the value of the
property. 2ere not necessarily, pero 9 pa rin, one coming from the applicant and another from
the receiver, so if the applicant was appointed as the receiver he files 9 bonds. <ne as an
applicant and another as receiver.
&' If the 9 re%uirements are complied with, the affidavit and bond, the court shall issue an order
appointing a receiver, so what are the duties and responsibilities of a receiver?
A' $ec. 6 (ule -. a receiver shall have the power to bring and defend actions in his own name/
to take and keep possession of the property in controversy/ to receive rents/ to collect debts due
to himself as receiver or to the fund, property, estate, person, or corporation of the same/ to
make transfers/ to pay outstanding debts/ to divide money and other property that shall remain
among the persons legally entitled to receive the same. 2owever, funds in the hands of the
receiver may only be invested only upon order of the court and upon written consent of all the
parties to the action. =o action may be filed by or against a receiver without the leave of the
court which appointed him.
&' #an a receiver be sue or be sued? 2ow is it related to $ec. , (ule 8?
A' "es, cross referring it to (ule 8 $ec. , who may be a party? A party is one who may be
benefited or prejudiced by the suit. A receiver shall not be damage or prejudiced by the suit nor
benefited thereto. 2e is not a party in interest, so why can he sue and be sued? +ecause he will
fall under an entity authori!ed by law just like an e0ecutor or administrator, he has no interest on
the estate so he is not a party in interest actually. +ut he is authori!ed, he has what we call legal
standing.
&' An order of receivership or appointing a receiver will take over and must have possession of
the property, if necessary these properties refer to everything under litigation including books of
accounts and everything. 'hey are also obliged to deliver or surrender do not comply what
should the receiver do?
A' 2e can ask the court to cite him for contempt.
&' 2ow receivership is terminated?
A' When there is no more reason for its e0istence it has to be terminated. 'herefore if the
properties subject of receivership is no longer in danger of being wasted, lost, damage, injured
or value dissipated then receivership will terminate.
<ne common e0ample here is when a corporation who is now in the stages of winding up its
affairs. :uring that time, the stock holders usually>nakaw dito nakaw doon>usually the better
solution is for the appointment of a receiver. A receiver is not necessarily an individual person, it
may also be a corporation. +anko 3ilipino for e0ample, it was placed by receivership by the
$entral +ank. 'he problem was that the receiver assigned was more corrupt than the stock
holders before the termination of the receivership he left for the $tates and stayed there
permanently bringing with him all the assets of +anko 3ilipino. It took +anko 3ilipino more than
97 years to recover. 'hat is why the receiver is also obliged to give a report, a return or an
accounting of his duties and responsibilities to the court otherwise before you know it baka lalo
lang nawala and lahat.
Rule +, Re*le)-n
&' What is the principal action?
A' (ecovery of possession of 31($<=A? property
&' Which court has jurisdiction?
A' &'# or ('# depending upon the value of the property because technically replevin is only a
provisional remedy.
Note' only receivership may only be a principal action but replevin will always be a provisional
remedy.
&' What are the grounds for application of replevin?
A' $ec. 9
a. 'hat the applicant is he owner of the property claimed, particularly describing it, or is
entitled to the possession thereof/
b. 'hat the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief/
c. 'hat the property has not been distrained or taken for a ta0 assessment or a fine
pursuant to law, or sei!ed under a writ of e0ecution or preliminary attachment, or
otherwise placed under custodia legis, or if so sei!ed, that it is e0empt from such
sei!ure or custody/ and
d. 'hat actual market value of the property is stated in the affidavit.
&' If A sold a lot to +, then + caused the titling of the property fraudulently in his favor can A ask
for recovery of the property being entitled to the recovery of the property?
A' =o, because replevin only applies to personal property.
'he other provisional remedies we studied so far, you apply for the provisional remedy from the
commencement of the action or before judgment and even after judgment in the case of
receivership. +ut in replevin it should be availed of before answer.
&' Why should replevin can only be availed of before answer? Why would an answer dis%ualify
an application for replevin? After answer it cannot be applied for anymore, why?
A' When an answer is filed issues are joined and because issues are joined, the court already
knows whether the applicant is entitled to the ownership or possession. $o hindi na igagrant ng
court, kaya it must be before the answer because it is an immediate remedy.
&' 'o whom the writ of replevin addressed? What should he do after issuance of writ?
A' 'o the sheriff, and after issuance of the writ of replevin he shall take actual possession of the
property for safe keeping.
Note' In attachment the taking of the property is for the purpose of awaiting for the final
judgment, here in replevin the reason for the taking of the actual possession of the property is
for safe keeping.
&' 2ow long should the sheriff hold in possession of said property?
A' <nly - days, after said period he must deliver said property to the applicant.
&' $o the defendant must object? If he does not object, what happens?
A' "es, it re%uires an objection. If such objection is not made the possession of the property
shall be given to the applicant.
&' 2ow do you discharge the writ of replevin?
A' +y filing a counter bond which is called redelivery bond within the period of - days. And
within that period if the writ of replevin is intended to be discharge the defendant must file a
counter bond which is also known as redelivery bond. If the defendant puts up a redelivery bond
then the sheriff is now re%uired to return the property to the person to whom he got it. +ut if the
defendant fails to put a redelivery bond then the sheriff will deliver it to the applicant.
(emember that this is only a provisional remedy, the principal action is recovery of possession
of personal property. ?ater on, in the principal action you can thresh out ownership as the basis
for the recovery of possession. 'herefore possession becomes an effect of ownership. If he is
only entitled for possession, pwede pa rin.
.ang )s Valde/
'he - day period is mandatory, even if you put up a redelivery bond but beyond the - day period
it will not have the effect intended for.
Note' 'his is the shortest period wherein the sheriff have custody of the property, in attachment
from application which may be from the commencement of the action until final judgment which
may last for ,7 years. 2ere, you may even file for receivership kasi baka yung property e
ginagamit na ng sheriff. And usually you do not assign the sheriff or the clerk of court as a
receiver. It is even advisable not to assign a party to the case as a receiver.

&' 2ow much the bond be?
A' 'wice the value of the property.
&' If the defendant objects on the ground of insufficiency of the bond or to the validity or
capacity of the surety, what happens now?
A' $ec. - (ule 67. 'hen the court must ask the applicant to satisfy the insufficiency of the bond,
and only when the order comes out and there is still no satisfaction of the insufficiency of the
bond then the property shall be delivered to the person to whom it was taken by the sheriff.
&' What are the re%uirements?
A' Affidavit and bond.
We said in receivership that it can happen that there is 9 bond if the applicant is appointed at the
same time as the receiver. In replevin it can be thrice.
&' @ive the circumstance wherein it can happen?
A' If there is a 8
rd
party claimant.
Note' We;ve studied 8
rd
party claim in (ule 8. e0ecution, 8
rd
party claim in attachment and
again here in replevin. $ec. ,6, ,) dito naman *. 'he same provision, meaning if a 8
rd
party
claims ownership or entitlement of possession of the property subject of replevin then the
applicant must file another bond which is not less than the value of the property. $o 8 na. 'his is
without prejudice to a possible action for damages filed against the 8
rd
party claimant if the 8
rd
party claimant;s claim is found to be frivolous or fraudulent. Where do you file it? 1ither in the
same action or a separate action for damages.
In attachment if you file for damages $ec. 97 (ule -* you have to do it before entry of judgment,
dito sa replevin it can be file in a separate action. "ou should know the distinctions between the
different provisional remedies, they are different, one from another.
&' If there is already a writ of replevin and the sheriff already took possession of the property
and given it to the applicant, how can it be discharged?
A'
&' 2ow do you discharge a writ of attachment?
A' $ec. -, ,9, ,8 (ule -*. $ec. ,8 is by motion, $ec. - is by counterbond. :ito naman sa
replevin may e%uivalent for that, a counterbond also or by redelivery bond, how much is the
redelivery bond? 1%ual to the bond therefore twice the value of the property also. <r you
%uestion the propriety or regularity of the issuance.
&' What are the possible grounds there?
A' 'hat there is no basis, or there is no entitlement of ownership or possession of the property.
'hen the writ can be discharged. +ut the immediate way to discharged it is thru a redelivery
bond which is e%ual to the value of the bond which is twice the value of the property.
"ung 8
rd
party claim, the same provision yun, the same application. In other words, thru an
affidavit furnishing the same to the sheriff, the sheriff is entitled to deliver it to the 8
rd
party
claimant unless the applicant puts up another bond. $o thrice na lahat, the value of the property.
:o you recall the peculiarity in what we studied in the writ of e0ecution? Ander (ule 8., when
there is a 8
rd
party claim, during the auction sale, even if the purchaser is the judgment obligee
he has to pay. <rdinarily, the judgment obligee, if he is the purchaser during an auction sale
pursuant to an e0ecution he does not have to pay. +ut if there is a 8
rd
party claim, then he has to
pay. Why? +ecause precisely the ownership is in %uestion.
:ito naman delivery until you put up another bond e%uivalent to the value of the property.
While the property now is in the hands of the applicant, the main action should proceed and
what should be the judgment? Important to.
Orosa (ase
$ec. . only in the alternative. 2indi pwede yung 9 ang ibigay.
&' What are the alternative decisions here?
A' It is either give the property or pay the value.
'he best e0ample of replevin is buying a car. +ut most buyers don;t buy in cash almost
everyone is buying thru installment. 2ere you are not the owner yet, when the car is given to
you, you e0ecute a mortgage, mortgaging the same car to the seller. (ead the contract, it
always has a clause in default, if it says there that if you default for e0ample 9 months of
payment, the seller will have the right to foreclose the mortgage judicially or e0trajudicially. 2ere,
the foreclosure will always carry a prayer for replevin and the seller is willing to pay twice as
much as the value of the property because the bond is not a cash bond but merely a surety.
<nce they foreclose they get the car, complying with all the re%uirements. <nce they recover it
after the case, the same car shall be resold.
(eplevin as well as attachment is known as custodia legis. 3roperty which has been attached
can no longer be the subject of replevin, but a property replevined can be the subject of
attachment minusBless delivery. =ote parehong may delivery, pag replevin kinuha na, pero
pwede mo pang iattach without delivery because in attachment you also take but first right sa
replevin, di mo na pwede kunin yun. +ut you can attach, because attachment simply furnish him
with the copy of the order. $o ano ka? $ubse%uent lien holder ka dun. 'he attaching creditor
shall be a subse%uent lien holder. (eplevin replevin no> attachment attachment yes why?
+ecause it depends upon the value, if the value of the property for e0ample a ,77 s%uare meter
property in makati worth 9m and it was attached for a debt worth ,m, it can again be attached.
+ut in the case of levy, levy on attachment who is >. the first attaching creditor. Cung may
sobra ibabalik dun sa may owner. And you can even be a redemptioner there because you are a
subse%uent attaching creditor. $o if there are 9 attachment, the 9
nd
attaching creditor is or
maybe a redemptioner if the property is sold thru levy in attachment.
R!LE +0 S!PPOR1 PENDEN1E LI1E
&' What is the principal action?
A' $upport, support pendent lite being a provisional remedy cannot stand alone, it must be
attached to a principal action which is an action for support.
&' Which court has jurisdiction?
A' 'he court which has jurisdiction over the principal action. ('#
&' Why ('#? #an it be &'#?
A' +ecause the subject of support is not capable of pecuniary estimation so only cogni!able by
the ('#. 'he amount asked or prayed in the action of support is immaterial because the issue
here is whether or not the applicant is entitled to support.
&' Is there any e0ception to the rule? Are there circumstances wherein support pendent lite can
be taken cogni!ance by the &'# or inferior courts?
A' "es, in criminal cases because support pendent lite which attaches to support can be filed
together with the criminal case because in criminal procedure it is now provided that once you
filed a criminal case the civil aspect is deemed instituted with it.
&' What are e0ceptions to that?
A' (eservation, prior institution.
&' 'he usual case of an unwed mother goes to court and ask support for the child. When can
she file it?
A' 4rom the commencement of the action or at anytime prior to final judgment.
&' 'hen the court must take immediate action on the provisional remedy of support pendent lite.
What does the court do?
A' 'he court shall issue an order directing the respondent to file a comment within - days. And
with or without comment, hearing must be held by the court. 'he hearing here is for the
provisional remedy. Dparang injunction, it cannot be granted without a hearing. In preliminary
attachment pwede, kasi it can be granted e0 parte but it cannot be implemented without prior or
comtemporaneous service of summonsE. If he failed to appear, court grant an order of support
pendent lite, here it is only provisional.
An unwed mother living in the s%uatters area in 'ondo asked the court for support and asked to
be granted provisional support to her only child in the amount of -7k a month. 'he court will ask
why -7k? 3anggasulina po. Ilan ba kotse mo? Wala po. =anghihiram lang ako ng kotse. Ilang
taon na ba ang anak mo? 8 months old po. Ano ba ang gatas nya? +reast fed po? $abihin ng
court di mo kailangan ng -7k ang kailangan mo lang e malunggay>?<?. 3ara mayroong gatas,
and you are only feeding milk to your son> o baka naman may pinapadodo ka pang iba dyan>
?<?. 3rovisional lang to, kya the court may grant -k a month provisional remedy.
Note' 'hat this provisional remedy shall depend upon the capacity, eto ang very wide discretion
ng court. #apacity ng person who will give support.
&' $uppose the respondent does not comply, what should the court do?
A' 'he court shall issue an order to e0ecute
As we have studied under the (ule 8., only final order or judgment may be e0ecuted. 'hen why
should it be e0ecuted? In fact, this is an interlocutory order like an appointment of a receiver, it is
not appealable only subject to certiorari if there is a ground.
&' If these is merely an interlocutory order, why should it be e0ecuted?
A' 'he rule so provides that this is the only instance where an interlocutory order may be
e0ecuted. 'hat provisional remedy of support pendent lite can be subject of a writ of e0ecution.
It is a very e0ceptional character. It is an e0ception to the rule that only a final and e0ecutory
order may be e0ecuted.
&' &other was granted ,7k a month, in the process the main action is being heard which is
support proper to make the support pendente lite support already. $uppose the respondent was
able to establish that he is not liable to give support because he was able to prove that he was
not the father. What happens now?
A' #ourt shall order the return of the paid amount with payment of legal interest from the dates
of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a
separate action from the person legally obliged to give support. $hould the recipient fail to
reimburse the amounts, the person who provided the same may seek reimbursement in a
separate action from the person legally obliged to give such support.
&' What happens to the provisional remedy which has already been granted, yun ba ang
ibabalik?
A'
&' If the applicant cannot return the support granted then what happens?
A' $he cannot be forced nor be imprisoned for that. +ut the respondent may seek
reimbursement in a separate action to the person legally obliged to give support.
Note' 9 remedies restitution and reimbursement plus damages.
Mongonon )s $A 2#" or 2#+ or 2#3 S$RA
De As-s do(tr-ne
$upport never becomes final, so res judicata does not apply. +ecause if granted ,7k by court as
support Dnot just pendent liteE may judgment na for support. "ou can always go back to court
and asked for increase or decrease of support because it depends upon the capacity of
respondent and needs of recipient. In the :e Asis case, the parties thereto made a compromise
and later on the other party filed another case for support. 'he respondent alleged that the
compromise judgment is immediately e0ecutory and there is res judicata. $# ruled that there is
no res judicata in support, it is never final.
Peo*le )s Manahan
Acknowledgment must be distinguish and separated from support. If the defendant is married,
under that doctrine, he may be forced to give support but not to acknowledge the child. 'he
rationale there is in the 4amily #ode because it would introduce bad blood in the family.
$ir: :oesn;t like that doctrine, he should be forced to acknowledge the child. It is his fault so why
should not he acknowledge.
SPE$IAL $IVIL A$1IONS
&' What is so special about special civil actions? Why are they called special civil actions?
A' +ecause each particular civil actions are governed by their own special rules. <rdinary rules
of court does not apply to them but is only suppletory in character. 4or e0ample some special
civil actions have no summons, the court ac%uire jurisdiction over the respondent in a different
manner but in ordinary actions summons is mandatory. ?ike in certiorari, there is no issuance of
summons there, the court ac%uire jurisdiction by the issuance of order to file a commnent.
D-st-ngu-sh Rule +" w-th Rule 2"
In special civil actions in (ule 6- it says there that the tribunal, body, board, officer, corporation
are only nominal parties and under regulations now of the $#, circulars, the tribunal,
corporations under or impleaded as respondent are not suppose to appear and not suppose to
file pleadings, let the private respondents do that for them.
'hat is why in certiorari, you say petition for certiorari uan :e la #ru! vs ('# branch )- manila
then name of respondent. 'he principal respondent there is the tribunal court or bodies, but they
become nominal in the process.
&' =ame the special civil actions?
A'
,. (ule 69 Interpleader
9. (ule 68 :eclaratory (elief and $imilar (emedies
8. (ule 6) (eview of judgments and final orders or resolutions of the #<&1?1# and #<A
). (ule 6- #ertiorari, 3rohibition and &andamus
-. (ule 66 Fuo Warranto
6. (ule 6* 10propriation
*. (ule 6G 4oreclosure of (eal 1state &ortgage
G. (ule 6. 3artition
.. (ule *7 4orcible 1ntry and Anlawful :etainer
,7. (ule *, #ontempt
R!LE +4 IN1ERPLEADER
&' Which court has jurisdiction in an action for interpleader?
A' It may be taken cogni!ance by &'# or ('#. It depends upon the subject matter of the
interpleader.
&' Why does it depend upon the subject matter? What can be the subject matter of an
interpleader?
A' 3roperty whether real or personal may be the subject matter of an interpleader, aside from
that performance of an obligation may also be the subject matter of an interpleader.
Note' 3erformance of the obligation cannot be filed in the &'# because it is incapable of
pecuniary estimation which is only cogni!able by the ('#. 3erformance of an obligation
amounts to specific performance which is not capable of pecuniary estimation.
4or e0ample you found a wallet, you surrender it to the dean, upon opening of the wallet it was
found to contain a check worth 8-7k payable to cash. A,+,#, and : alleges ownership. 'he
dean has no other choice but to file an action for interpleader because there are ) different
claimants. Another e0ample is A and + are lessor and lessee over an apartment unit. At the end
of the contract of lease A would like to surrender the premises to +, but # and : came forward
and said they are entitled to that. A now does not know to whom to deliver, therefore A should
file an interpleader. 10ample of obligation, to paint, sculpt, perform.
&' 2ow do you distinguish now interpleader from intervention?
A' Interpleader is a special civil action while intervention is an ancillary action. In the former
there can be no single defendant, there must be at least 9 defendants while in intervention there
can be , defendant. In the former there is no action yet while in the latter there is already a
pending action.
Note' If you are asked to make a distinction do not define one and period because you are not
stating a distinction at all.
&' After an action of interpleader is filed, what happens ne0t?
A' 'he court shall order the respondents to file their answer.
Note' 'his is the only rule where there is a section for a motion to dismiss. :efenses and
objections, that is what is meant there.
After filing an answer and once the issues are joined then you go to the regular rules of court
which is you go to pretrial then trial.
&' What should the judgment be by the court in an interpleader case?
A' 'he judgment shall be a declaration as to who is entitled or who is the legitimate or entitled to
the real or personal property or of the performance of the obligation.
5a6wa6 golf (ase
Interpleader is a compulsory counterclaim. When 'an filed a case against Wakwak knowing
already that there is another claimant, it could have and it should have filed a compulsory
counterclaim of interpleader. 4or not doing so, it is considered that it had waived its right to any
action against the defendant.
&' #an there be a compulsory intervention?
A' "es it can happen.
Eternal 7arden )s IA$
#ourt may order that the subject matter be paid or delivered to court. And the person who filed
the interpleader having no interest over the subject matter should be ordered by the court to do
so.
$o if you have an action for interpleader you should ask the court to deposit.
&' What if the action is for the performance of an act, can you ask for its deposit? A' =o, the
person who is obliged to perform will not stay there. It is only applicable to real or personal
property.
R!LE +8 DE$LARA1OR. RELIE9 AND SIMILAR REMEDIES
&' Which court has jurisdiction over declaratory relief?
A' ('# has original and e0clusive jurisdiction because the subject matter is not capable of
pecuniary estimation.
Note' 'he real declaratory relief is stated in the first paragraph of $ec. , (ule 68, the 9
nd
paragraph which pertains to reformation of instrument or %uieting of title is not declaratory relief
it is similar remedies. 'he 9
nd
paragraph was added there to give life to certain provisions of the
#ivil #ode which has no corresponding procedural aspect. It is even misplaced, it should fall
under ordinary action.

&' What;s the venue?
A' If personal action, where the plaintiffs or respondents resides at the option of the plaintiff.
&' What is the subject matter?
A' Any contract, will, deed, or other instruments or whose rights are affected by a statute,
e0ecutive order or regulation, ordinance or any other governmental regulation.
&' What is the condition? What is the peculiarity there?
A' +efore breach of contract or violation of the statute. If there is already violation in the contract
or statute then declaratory relief is no longer applicable.
Meral(o )s Ph-l-**-ne $onsumers 832 S$RA
'here was a 3: by &arcos reducing the 'ariff rate of electricity from -H to 9H and then the
3hil. #onsumers 4oundation Inc. wanted that the 8H reduction be given to the consumers. 'he
+<1 denied it. It was never appealed so the order of +<1 became final and e0ecutory. - years
after 3#4I filed an action for declaratory relief. $# dismissed it because the 3: has long been
breached already. 'he doctrine here is that you cannot file an action for declaratory relief if there
is already breach.
10ample &akati issued an ordinance banning smoking even on the street effective on :ec. 97,
977G. +efore :ec. 97, 977G arrives you have the right to file an action for declaratory relief. 3ero
pagdating ng :ec. 97 no more, because once :ec. 97 arrives there is a reasonable
presumption that there is already a violation.
&' $uppose you;ve already filed an action before breach, then pending action there is already
breach, then what happens?
A' 'hen the action shall be converted into an ordinary action.
&' 2ow do you convert the action?
A' 4ile a motion to amend action with leave of court.
&' 10ample a regulation of a school was issued stating that by the school year 977GI977.
starting une tuition fees shall be raised by ,97H. 'here was already a circular to that effect.
:eclaratory relief was filed, pending action une 977G came. 'he increase was already
collected from the students so you convert your action for declaratory relief to what kind of
action?
A' #onvert is to collection of sum of money.
A and + are lessor and lessee of a property. And the contract of lease is for a period of ,7 years
from year ,..7 to year 9777. In ,..- the land was overrun by &=?4 and so the lessee left the
property. ) years thereafter, in ,... the &=?4 was driven away by the military so + returned to
the premises. 2e files for an action of declaratory relief asking the court to determine whether
the contract will e0pire 9777 or 977). why? +ecause he was not able to avail of the ) year
period when it was under the possession of the &=?4. $o he filed for declaration of relief, but
the action has not yet terminated it is already 977,, by 977, the action must be converted into
what? Into either unlawful detainer or forcible entry as the case may be or for recovery accion
publiciana.
&' Is the court bound to make a judgment in an action of declaratory relief?
A' =o, another peculiarity here is that the court is not bound to make a judgment.
&' When is it not bound to make a judgment?
A' When there will be no finality in the resolution of the rights and privileges
Manhattan Ban6 New .or6
&+=" is a trustee of a will and one of the named devisee in the will filed an action for
declaratory relief without asking the court to determine who are the compulsory heirs and what
are their specific rights under the will. 'he petitioner did not implead the compulsory heirs, the
court refused to render judgment because even if it did it will not finished or end the controversy.
R!LE +2 REVIE5 O9 :!D7MEN1S AND 9INAL ORDERS O9 1%E $OMELE$ AND $OA
(emember that (ule 6) cross refer you to (ule 6- so we do not have to discuss (ule 6)
&' What is the difference between (ule 6) and (ule 6-?
A' In (ule 6) it only applies to #<A and #<&1?1# while in (ule 6- there is no specific agency.
In the former the petition should be filed 87 days from receipt of notice while in the latter it is
filed 67 days from notice. In the former it is solely cogni!able only by the $# while in the latter
there is concurrent jurisdiction between $#, #A, ('# and even $andiganbayan but in the case
of the latter the only limitation being is it should only be in aid of its appellate jurisdiction.
R!LE +" $ER1IORARI; PRO%IBI1ION; AND MANDAM!S
?et us now discuss these:
&' We do not have any problem in the aggrieved parties. 2ow about the respondents?
A' In prohibition you add the person and the corporation and remember that this used to be
under the jurisdiction of the $1#, but this is no longer true. 2ow about this person? 'his is not
ordinary individual person but a person e0ercising %uasi judicial function. (emember that %uasi
judicial bodies as we have studied does not belong to the judiciary and a lot of them falls under
the e0ecutive branch of the government and that includes the =?(#. 'he =?(# is not a judicial
body but it e0ercises %uasi judicial functions.
!P Board of Regents )s 1a-lan
+oard was considered as a body e0ercising discretionary function, in effect %uasi judicial. 1ven
in an administrative bodies, a school board, when it rules that a student is not entitled to be
enrolled in said school due to some grounds.
La*-d )s Laurea
(e%uirement of certiorari
&' @ive e0ample of lack of jurisdiction?
A' 'ribunal, body, board or officer has no authority to decide the case. 10ample &'# rendered a
judgment on an issue which the subject is not capable of pecuniary estimation.
Russel )s Vest-l
Note' Ander (ule )- which is a mode of appeal, the body there acted with jurisdiction that is
why the ground cannot be any of the 8 because it is a mode of appeal. It is called errors in
judgment. Ander (ule 6- it is errors of jurisdiction. 1rrors of judgment are correctible by an
appeal, while error of jurisdiction is correctible by certiorari.
&' @ive e0ample of e0cess of jurisdiction?
A' 2ere the court has jurisdiction but it e0ceeded its authority. 10ample is when &'# in a case
of reckless imprudence resulting to homicide rendered a judgment of conviction of 97 yrs
imprisonment. 'his is clearly e0cess of jurisdiction.
+efore amendment in summary procedure, attorneys fees are limited to 97k wala na yan
ngayon. $o if a court grants more than 97k as attorneys fees under the old law it is clearly
e0cess of jurisdiction. Ander the new law it may be grave abuse of discretion but not anymore
e0cess of jurisdiction.
#ourt penali!es lawyer in the amount of 97k for direct contempt for coming late. &a0imum
penalty is 97k so no e0cess of jurisdiction but maybe grave abuse of discretion.
&' What is grave abuse of jurisdiction amounting to lack of jurisdiction?
A' It is a capricious or whimsical e0ercise of judgment and despotic or arbitrary e0ercise thereof.
#ertiorari is always %uestioned in the bar or at least it is always mentioned. $o if you are asked
a %uestion about certiorari and you do not know whether it is e0cess of jurisdiction or grave
abuse of jurisdiction amounting to lack of jurisdiction, just remember ) adjectives J whimsical,
capricious, despotic and arbitrary. When you see any of these words, it is grave abuse of
discretion because in all jurisprudence involving certiorari, these are the words often used by the
$#. +ut there may be a case wherein it does not use the specific words, kaya dapat alam nyo
ang meaning and synonyms of these terms.
&' When is it capricious? 2ow about whimsical? :espotic? Arbitrary?
A'
Note' 'hat the word capricious and whimsical always go together. "ou will not find one without
the other. It means it is only based on whim, there is no need, no necessity. It is unreasonable.
Arbitrary naman is no basis, unwarranted, baseless, the law does not provide. :espotic
on the other hand is when it is done out of passion, out of revenge, out of hatred or out of love.
(emember despotic pa rin yan kahit out of love. (elationships, maraming jurisprudence dyan,
kaya lawyers always file motion for inhibition.
&' @ive e0ample of grave abuse of discretion?
A' In filing a motion to %uash grounded on double jeopardy and in your motion you attached the
judgment of conviction of your client. 5ery clear he has been convicted already. #ourt denied
motion stating yes you have been convicted of rape of my daughter but it is still denied. Why?
+ecause I have 9 more daughters>.?<?.
Note' In all of these grounds J lack of jurisdiction, e0cess of jurisdiction, grave abuse of
discretion. Ang malimit mong mabasa is grave abuse of discretion kasi very clear pag e0cess of
jurisdiction and lack of jurisdiction.
It is important that you must establish the e0istence of whimsical, capricious, despotic or
arbitrary. If you cannot establish that then the court should deny it because it would then be an
error of judgment and not error of jurisdiction. 'he remedy would be wrong. And at the time of
said judgment the case would be final and e0ecutory because the right to appeal is lost because
the period for filing an appeal has already lapse.
Note' 'hat certiorari does not stop the running of the period of appeal.
Note' :iscuss mandamus with %uo warranto because of the similarities between the 9.
&' ?et us now go to functions of the respondent. In #ertiorari the functions are judicial and %uasi
judicial function. =ow, what is judicial function?
A'
&' 'he distinction lies in the root of its power since both e0ercises the same power which is the
power to hear and determine a case, so what is the root of its authority?
A' In judicial function the root of its power comes from the judiciary itself while in %uasi judicial
function the roots of its power comes from the legislative or the e0ecutive department.
Note' :o not confuse it to discretionary or ministerial functions
&' 2ow do you distinguish one from the other?
A' In ministerial, the court is left without the choice but to grant it if all the rules and
re%uirements are complied with, while in discretionary it may deny or grant but within the
parameters, it cannot go beyond said parameters. 10ample is giving penalty of 6 years , day to
,9 years. 'he court has discretion what specific penalty to give but it must be within said period
depending upon certain circumstance.
Note' 'hat the grounds in prohibition is the same even if the function is merely ministerial kasi
pwede pa rin na whimsical, capricious, despotic or arbitrary. +ut which is clearer? "ung
discretionary function sa certiorari because it is very clear because of the parameter in
discretionary. $o if it e0ceeds the parameter clearly grave abuse of discretion amounting to lack
of jurisdiction D????E.
#onditions are that there must be no appeal and there is no other plain, speedy, ade%uate
remedy in the ordinary course of law.
&' Why no appeal?
A' @enerally, certiorari cannot be a substitute for an appeal. (emember this, madaming
ramifications to. If appealable, no certiorari, as a general rule, so why go to certiorari? +ecause
it is not appealable. 10ample of those which are not appealable are interlocutory orders.
:ecisions in labor cases, does not allow appeal so your remedy is certiorari. Why no appeal
again? +ecause you could have appealed but you did not, you have now lost your right to
appeal. +ut these time the loss of appeal here is not due to any others fault but your own. If it is
your own fault, you cannot apply for certiorari. "ou loss your right to appeal not because of your
own fault. 10ample lawyers fault, although the general rule is fault of lawyer is also fault of
client, but there are e0ceptions there like (ule 8G $ec , (elief from judgment/ $ec. 9 (ule 8G
(elief from denial of appeal. "ou left for abroad while pending case, lawyer received decision
but he did not notify you. When you return it can be e0cused.
'he other condition, no plain, speedy, or ade%uate remedy in the course of law, in other words
you could have filed a motion for reconsideration or you could have appealed because it is still
available, but appeal or &( are not speedy or ade%uate remedy in the ordinary course of law.
10ample motion to %uash was denied, may appeal dun, pero certiorari is the better rule, why?
+ecause if you saw appeal, tuloy tuloy pa rin ang kaso. "ou cannot desist from proceeding the
case, are you going to subject, are you going to endanger the client to be convicted later on? $o
instead of an appeal or &( then you go to certiorari where the other court will immediately strike
down the resolution.
&' What is the character of (ule 6- as distinguished from rule )-?
A' (ule 6- is a special civil action while rule )- is a mode of appeal.
'he ground for filing an appeal under (ule )- is error of judgment which can either be:
,. Insufficiency of evidence
9. udgment is not according to the facts
8. :amages awarded is contrary to law
'he ground for filing certiorari under (ule 6- is error of jurisdiction which can either be:
,. ?ack of jurisdiction
9. 10cess of jurisdiction
8. @rave abuse of discretion amounting to lack or e0cess of jurisdiction.
&' What are the grounds for filing of an action for prohibition?
A' $ame grounds with certiorari.
&' What are the grounds for filing an action for mandamus?
A'
,. =eglect in the performance of duty imposed by law
9. 10clusion from enjoyment of an office
&' :octrine in the case of ?apid 5. ?aurea
A'
,. (e%uirement preparatory to the filing of petition for certiorari
7eneral Rule' 4iling of a motion for reconsideration is mandatory to give the tribunal a
chance to correct itself
E<(e*t-on' 3urely %uestions of law which raises %uestions of error of jurisdiction
9. $pecific dates must be stated as to when the judgment was rendered, when notice of
judgment was received, filing of &otion for reconsideration and receipt of order with
respect to the denial or grant of the motion.
&' What is the period for filing of certiorari?
A' 3eriod of 67 days from receipt of copy of judgment.
&' :oes the =eypes doctrine or fresh day rule apply?
A' 'he jurisprudence does not specifically provide that it should likewise apply to (ule 6-
because it speaks only of appeal. 2owever according to a noted professor, the fresh day rule
applies both to (ules )- and 6- unless a new jurisprudence would otherwise provide.
NO1E' 'here was an old $# circular which provides that the 67 day period includes the filing of
a &otion for (econsideration. 2owever, in 977- there was a new circular which states that the
old circular does not apply to (ule 6- so the 67 day period is counted from the notice of receipt
of denial of the motion for reconsideration.
&' :octrine of A3 +oard of (egeants #ase
A' In mandamus rights must be very, very clear so that if the right is doubtful, mandamus will not
lie.
&' :istinguish mandamus from %uo warranto. 4or e0ample: &ayor Atien!a has a city attorney
which is Atty. K whom he replaced with Atty. " with no valid reason. Against whom may Atty. K
file mandamus and against whom may he file %uo warranto?
A' Atty. K can file mandamus against &ayor Atien!a because by the latterLs act he was e0cluded
from the enjoyment of his office. Atty. K can file %uo warranto against Atty. " because he is a
usurper of Atty. KLs office.
R!LE ++ &!O 5ARRAN1O
&' What is the doctrine in the &endo!a #ase?
A' Fuo warranto is directed against the person and not against the office. Also plaintiff is not
entitled to backwages.
&' Who initiates Fuo warranto?
A' <ffice of the $olicitor @eneral, public prosecutors and relators.
&' Who are relators?
A' 3rivate citi!en who is entitled to the office.
$lass-( E<am*le' =inoy cannot file %uo warranto against &arcos so his remedy was to file
prohibition. 2e did not succeed. 2e succeeded in the tarmac when he died. What is the moral of
the story? Whatever you cannot do living, you might succeed in death.
&' 10ample ) candidate for councilor filed a %uo warranto against G elected counsilors of
&anila. 'he court dismissed the case. Why?
A' It is a rule that in filing %uo warranto the person filing should be entitled to the position. $o in
this case it was dismissed because how can ) people fill up the position of G councilors.
&' urisdiction?
A' #oncurrent $#, #A or ('# but never in $andiganbayan e0cept in aid of appellate jurisdiction
&' What does in aid of appellate jurisdiction mean?
A' When the appeal was made to the $andiganbayan from &'# or ('# in cases of publice
officials whose salary grade is below 9*
&' 'uason #ase
A' #ertiorari will only lie against tribunal e0ercising judicialB%uasiIjudicial function.
R!LE +3 E=PROPRIA1ION
&' Who e0ercises jurisdiction?
A' 'he ('# because the action is not capable of pecuniary estimation. 'he value of the
property being only incidental to the case. D(ussel 5. 5estil, +rgy $an (o%ue 5. 2eirs of 3astorE
&' 5enue?
A' Where the property is located.
&' Who are the parties who may e0propriate?
A' ?@ALs, government instrumentalities however a resolution authori!ing e0propriation must first
be passed.
&' (ule 6* is procedural. What is the substantive law which provides for e0propriation?
A' 'he ,.G* #onstitution
&' What properties are involved?
A' Any kind of property, whether real or personal
&' What does taking mean?
A' 'aking includes not just actual taking but also diminutionBdeprivation of benefits
&' What does for public use mean?
A: It means that the purpose for taking would ultimately redound to the general welfare of the
people
&' &ay a law be passed authori!ing the city of &anila to e0propriate a portion of A$'? &ay the
compensation be by way of e0change of property?
A' =o there can be no compensation by way of e0change of property because the determination
of ust compensation is a judicial function.
&' What is the remedy of the owner of the property?
A' ,. &andamus
9. Fuo warranto
&' Which should be preferred, ownership or utility?
A' At first glance it would seem that ownership must be preferred but in reality it is utility
because nature made it so that you own only what you need and dispose of the things that you
donLt use. 3ag wala nang pakinabang, ipamigay mo na kagaya ng asawa mo.
&' What is the formula for computing just compensation?
A' ust #ompensation M 4air &arket 5alue plus #onse%uential damages minus conse%uential
benefit which should not be more than conse%uential damages.
&' What are the 9 parts of e0propriation?
A' 'he first stage is to determine whether or not the property can be devoted to public use.
$econd stage, determination of the just compensation.
NO1E' 3laintiff upon deposit of the amount may enter the property
&' Where should the deposit be made?
A' court or reputable bank
&' 2ow much should the deposit be?
A' Assessed value of the property
&' Who determines ust compensation?
A' :etermination of just compensation is a judicial function so there can be no compensation by
agreement.
&' Appointment of #ommissioner
A' =ot more than 8
&en of Integrity
&' What is the effect of the report of the commissioner?
A' 'he report is not binding upon the court
&' =3# case
A' Apparent conflict under $ec. , (ule ,* and $ec. 9 (ule 6*
&' :octrine in the #ity of &anila 5. $errano
A' 10propriation should be a final recourse
R!LE +> :!DI$IAL 9ORE$LOS!RE
&' Application?
A' Applicable to both real estate and chattel mortgages.
&' What does judicial foreclosure mean?
A' It has passed through court process.
&' What should be filed?
A' 5erified complaint of foreclosure absolute necessity to the mortgage
&' Who should be included?
A' All parties who have interest over the property subordinate to that of the mortgagor.
&' If a party interested is not impleaded what is the effect?
A' 2e is not affected by loss of e%uity of redemption.
&' What is the object of foreclosure
A' 3roperty
&' #an a property mortgaged may still be attached?
A' "es
&' :istinguish right of redemption from e%uity of redemption.
A' (ight of redemption is the , year period from registration of certificate of sale given to a
person to redeem the property. 1%uity of redemption is a right given to persons with interest
within .7 days and not more than ,97 days from entry of judgment to redeem the property.
&' What is order of confirmation?
A' #onfirmation of the sale of the property.
&' :eficiency judgment
A' +y filing a motion for deficiency judgment.
R!LE +# PAR1I1ION
&' What is the object of partition?
A' 'o assign property.
&' urisdiction
A' ('# because the case is not capable of pecuniary estimation.
&' What are the stages in partition?
A'
,. :etermination of the e0istence of coIownership I absence of which partition is unavailable
9. :etermination of who are entitled and what properties to be distributed
NO1E' 1ach stage is final and appealable
&' What kind of appeal?
A' +y record of appeal because the action calls for multiple appeals.
&' What is a project of partition?
A' Agreement between and among the parties in partition which is submitted to the court on
which a judgment of partition is made.
&' Who prepares a project of partition?
A' Any of the coIowners
&' Who are the parties in an action for partition?
A' 3laintiff I coIowner
:efendant I all other coIowners as indispensable parties
&' What is the effect of the approval of the project?
A' Approval is e%uivalent to judgment of partition.
&' If no project is agreed upon what should the court do?
A' Appoint a commissioner and the commissioner would make and submit a project of partition.
&' If the parties still does not agree, what should commissioner do?
A' Assignment I identical to buying out.
NO1E' 1ven if only one of the coIowners objects, no assignment
&' What then should the court do?
A' $ell the property and the proceeds distributed among and between coIowners. 'his is the
last resort.
&' &ay a sale be objected to? <n what ground?
A' "es sale may be objected to if it will not redound to the benefit of the coIowners.
NO1E' #ommissioner should give report, however such is not binding upon the court.
&' What does judgment of partition include?
A' It includes payment of the cost of accounting and damages.
&' :octrine of 2eirs of 'eves 5. #A
A' Any activity that puts an end to indivision is a case of partition.
R!LE 3,
&' What are the 8 kinds of action involving recovery of property?
A'
,. accion publiciana I right of possession
9. accion reinvindicatoria I recovery of ownership with possession as an attribute of ownership
8. accion interdictal I possession de facto
a. forcible entry
b. unlawful detainer
i. governed by rule *7
ii. in case of agricultural propertyBland governed by the civil code
&' :octrine in avellosa 5. #A
A' :istinction between Anlawful detainer DA:E and 4orcible 1ntry D41E
&' Who are the aggrieved parties?
A' 5endor, vendee, lessor or any other person deprived of possession
&' Is the lessee included?
A' @enerally no because the lessee is assumed to be in possession. 2e may be included under
those other persons deprived of possession.
&' In ejectment the only issue is possession de facto. #an you raise the issue of ownership? If
so what is the effect?
A' It will not divest the court of its jurisdiction. 'he court shall resolve the issue of ownership
only to resolve the issue of possession. (esolution as to ownership in ejectment cases is only
provisional.
NO1E' <ld rule prior to +3 ,9. provides that if issue of ownership is raised, the court is
divested of its jurisdiction.
&' A is the lessor and + is the lessee who was not able to pay rentals for several months. A filed
a case of unlawful detainer against +. udgment was rendered in favor of +. Is the judgment in
favor of + immediately e0ecutory?
A' =o because he was already in possession of the property.
&' What is immediately e0ecutory in the judgment as provided under sec.,.?
A' 'he return of the property. (estoration or restitution to the one who is entitled to possession.
&' 2ow is e0ecution stayed?
A' (e%uisites for stay of e0ecution
,. 3erfection of appeal by filing a notice of appeal
9. $upersedeas bond
8. :eposit of the amount for the use and occupancy of the premises
&' What is a supersedeas bond?
A' Anpaid rentals. If there are no unpaid rentals there is no supercedeas bond.
&' 2ow much is the supersedeas bond?
A'
,. In accordance with judgment
9. If there is no judgment, in accordance with the contract
8. In the absence of contract, according to what was paid as rentals
&' What is the amount for use and occupancy?
A' 3ayment of rental during the pendency of the appeal.
&' 2ow much?
A' $ame as supersedeas bond.
&' Where do you file notice of appeal?
A' In the municipal trial court
&' Where do you file supersedeas bond?
A' In the municipal trial court
&' Where do you file amount for use and occupancy?
A' In the appellate court
&' When?
A' @eneral rule on or before the ,7th day of each succeeding month. 4or e0ample the rent due
for the month of april should be paid on or before &ay ,7.
10ception: When payment of rental must be paid in advance in accordance with the contract.
NO1E' =onIcompliance with even one month would render the judgment immediately
e0ecutory.
&' +oth $ec. ,. and $ec 9, speak of immediately e0ecutory judgment. 2ow is $ec. 9, different
from section ,.?
A' $ection 9, speaks of the judgment of the appellate court and such judgment cannot be
stayed e0cept when defendant filed injunction.
&' 2ow about sec. ,- and sec. 97?
A' $ec ,- applies to 'rial #ourt while $ec 97 applies to the appellate court. Injunctive relief is
available to both in order to stop defendantLs act of dispossession
&' :octrine in (efugia #ase
A' &otion for reconsideration is a prohibited pleading only in the &'# under summary
procedure. When the case has already been appealed to the ('#, &( is already allowed.
R!LE 30
&' What is contempt?
A' Apfront or defiance, act against dignity, integrity and justice of the court
&' What are the two kinds?
A'
,. :irect #ontempt
:one in the presence of or so near a judge that disrupted proceedings.
9. Indirect #ontempt
&' What are the remedies of a person cited in contempt?
A'
:irect #ontempt
4ile a petition for certiorari and not an appeal because the judgment is only interlocutory
Indirect #ontempt
,. 4ile an appeal
9. 3ost a bond
&' :octrine in the case of "asay 5. (ecto
A' $upreme #ourt said that the power of contempt must be used in preventive manner and not
in vindictive manner. 'he distinction between civil and criminal contempt was also abolished.
SPE$IAL PRO$EEDIN7
NO1E' :eclaration of absence and death: 'here is no such thing as declaration of death>it
should be absence leading to the declaration of death.
'hese are the only things which we will be discussing in $pecial 3roceedings DI will state them
in the order of importance, procedurally speakingE:
,. $ettlement of 1statesI states the meat of special proceedings
9. AdoptionI although this is already studied in civil law/ it is important because of the new rule
on adoption, not the laws on adoption D(.A. 8--9, the :omestic Adoption Act of ,..G as
well as (.A. G7)8, the Inter #ountry Adoption ?aw of ,..-E>not that because that is
substantive. I am talking of the new rule on adoption which took effect sometime in August
977). I that;s why I think it;s the second most important thing to discuss here.
8. (ule ,78 in relation to (ule ,7G, #hange of =ame and #orrection of 1ntry..again, because of
the new law. $o the possibility of being asked in the +A( is great. D(ead also (.A. .7)GE
). @uardianshipI practically the same rules of procedure as settlement of estate..only that in
settlement of estate, the subject is dead unlike in guardianship, the subject is still alive.
3hysically alive, but mentally dead or a minor. 'hat is the difference between the two.
-. 2abeas #orpusI a peculiar kind of special proceeding
6. 1scheat
*. 'rust Dnot the trust you buy in &ercury, but relation>trust relationE
All the rest, we will not discuss anymore. 5oluntary :issolution of #orporations/ :eclaration of
Absence N :eath/ 2ospitali!ation of Insane 3ersons>Dbut, I still advise you to readE, even the
#onstitution of the 4amily 2ome.
If I were an e0aminer, I would definitely ask in $pecial 3roceedings, $ettlement of 1state and
ne0t to $ettlement of 1state would be Adoption and ne0t to that would be 2abeas #orpus.
=ote that even in last year;s +A( e0amination there was no %uestion on special proceedings
because utmost you get only one %uestion for +A( purposes, one %uestion in $pecial
3roceedings. 5ery seldom if you find two %uestions in $pecial 3roceedings. If, perhaps, the
e0aminer is teaching special proceedings, then perhaps he will ask you more %uestions in the
+A(, but ordinarily no>not that I;m demeaning its importance.
&y other consolation is that you are wellIversed in $pecial 3roceedings, that remains to be seen
starting this afternoon.
(emember, $pecial 3roceedings is different from all other actions, including $pecial #ivil
Actions. If you are asked to define what a $pecial 3roceeding is, A S*e(-al Pro(eed-ng -s an
a(t-on other than an ord-nary a(t-on; a s*e(-al (-)-l a(t-on; or a (r-m-nal a(t-on 'hat is a
correct definition by e0clusion. 'o be more specific, S*e(-al Pro(eed-ngs are a(t-ons geared
or d-re(ted towards the establ-shment of a r-ght; status; or a *art-(ular fa(t. 'he ordinary
rules apply here and more so because there are specific provisions that distinguishes it from
special civil actions where it has a special rule. 2ere, no. It has its own uni%ueness. 1very
$pecial 3roceeding has its own nuances. 4or e0ample, because the objective is the
establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In
special proceedings, there is no defendant, so there is no need for summons. $ummons, as we
have studied is the way by which a court ac%uires jurisdiction over the person of the defendant
D(ule ,)E. 1he only e<(e*t-on -s; of (ourse; %abeas $or*us Pro(eed-ngs where-n you
name a res*ondent but the res*ondent here -s d-fferent from a defendant be(ause
summons -s not ne(essary
&' $o, how does a court ac%uire jurisdiction over the case?
A' 'here is no need for the court to ac%uire jurisdiction over the person of the defendant
because there is no defendant. 'herefore, the court should ac%uire jurisdiction of the case, over
the subject matter. 2ow? +ecause it is an action in rem, ordinarily publication. $o that is the
uni%ueness of $pecial 3roceedings. 3ublication is the means by which the court ac%uires
jurisdiction over the subject matter. It is ordinarily not initiated by #omplaint, but by 3etition.
NO1E' Again, unlike other actions, as a general rule, $pecial 3roceedings do not prescribe.
'here might be limitations of such periods in some instances, but ordinarily, they do not
prescribe.
&' What are the $pecial 3roceedings?
A' =ame them according to the (ules starting from (ule *8I.7 $ettlement of 1state/ (ule .,
1scheat/ (ules .9I.* @eneral @uardians N @uardianship/ (ule .G 'rustees/ (ules ..I,77 are
no longer applied because they are deemed repealed by the new rules on adoption, including
(escission N #ustody of #hildren, these (ules are no longer applied because of the adoption of
the #hild N "outh Welfare #ode.
SE11LEMEN1 O9 ES1A1E O9 DE$EASED PERSONS
When you speak of $ettlement of 1state, immediately what comes to your mind is that someone
died Dand that;s the beauty in law>men live forever in law>they continue in their estate>'here
are those who want someone dead because of his estate. there are also those who want
somebody alive because he has no estate>but actually, even if you are a pauper or a
millionaire, you always have an estate. $o you live forever through your estate. 'hat estate
must be settledE.
&' 'here are two ways to $ettle an 1state:
A' 10trajudicial $ettlement and udicial $ettlement of 1state. In, e0trajudicial settlement, the
rules speak of settlement through Affidavit of $elf Adjudication and the other way to settle it is by
e0trajudicial partition. 'hose are the e0trajudicial manner of settling the estate. 10trajudicial
settlement proper is by agreement of the parties.. e0trajudicial settlement is distinct from
partition. When you go to judicial settlement, you have the first which is $ummary $ettlement
$ec. 9, (ule *), which is very practical and then judicial partition under (ule 6,, that is a mode
of settlement and then you have the conventional mode of settlement of estate. 5e (an e)en
add a fourth 6-nd; wh-sh -s also a mode of settlement of estate?Es(heat *ro(eed-ngs
under Rule #0
'he conventional mode settlement is either testate or intestate. 'he testate can either be with
the will anne0ed or without the will anne0ed. 'he intestate, of course, there is no will. +ut both
testate and intestate may also be done either in the 3hilippines or outside the 3hilippines.
&' What are the re%uirements for an Affidavit of $elf Adjudication?
A'
,. 'here is a will
9. =o debts/
8. <nly one heir.
&' $uppose &r. K, who died, was known to everyone to have one child but later on, it was
found out that he had other illegitimate children. What will happen to the affidavit of self
adjudication? Is there any finality?
A' =<. 1ven if the properties have already been distributed, they aer still subject to claims.
&' 2ow do you go about in making an Affidavit of $elf Adjudication?
A' 'he word suggests already that it is an affidavit>so, how do you formulate an affidavit? "ou
simply state in your affidavit that your father or your mother died/ and that heBshe left the
following properties/ and that you are the only heir of your parent/ and that the estate are such
and such, valued accordingly/ and that they are found there Dlocation of propertyE..you simply
submit that to the (egister of :eeds and the (egister of :eeds will act on it only after you
comply with the re%uirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register of :eeds.
De0trajudicial ha>the court has no participation whatsoever hereE "ou simply submit to the
(egister of :eeds, the (egister of :eeds acts on it and if there is already publication, once a
week for 8 consecutive weeks in a newspaper of general circulation, the (egister of :eeds will
simply transfer the title in favor of the affiant.
'he other mode of e0trajudicial settlement is e0trajudicial partition...that is not under (ule 6.
because under (ule 6. is judicial partition>here, the parties agreed, but take note that there is
also no will and there are also no debts and even if there are debts, there is sufficient money to
answer for those debts which are reserved>the money is reserved to answer for debts>so you
can partition among and between yourselves these properties, provided all of you are of age. If
one is a minor, he is duly represented>ordinarily, you ask the court for the appointment of a
guardian ad litem. 'his form of e0trajudicial settlement is similar to 3artition>there is really no
distinguishing feature between e0trajudicial partition and e0trajudicial settlement. urisprudence
tells us that any act between and among persons that would lead to the division of property is a
form of partition or settlement>any act that would terminate indivision would be division.
In affidavit of self adjudication, of course you have to support your allegations with documentary
evidence Dlike for e0ample, that you are the only heir, this can be proven through your birth
certificate and also the marriage contract and the properties you wish to adjudicate unto yourself
should be established by 'itles or muniments of titlesE.

udicial $ettlement refers to #onventional: (ules *8I.7. $ummary $ettlement of 1state
is very impractical because up to now the value of the estate is still 3,7' D3,7,777E but you will
note that there is still a re%uirement for publication Dso if you have it published once a week for 8
consecutive weeks, ubos na yung ten thousand moE.
R!LE #0 ES$%EA1
Is another form of udicial $ettlement, 1scheat tells us that if a person dies without a will,
without an heir, and no debts, then the <ffice of the $olicitor @eneral will file, under the directive
of the 3resident of the 3hilippines, will file an 1scheat 3roceeding. +ut if it happens that during
the pendency of the proceeding, a will pops up, then the proceeding is discontinued. If an heir
pops up, then the proceeding may be suspended and establish your right>otherwise, after the
hearing, the property will go to the government. 'his escheat proceeding is founded on the
theory that all lands belong to the $tate>the Regal-an Do(tr-ne that you studied under ?':
D?and 'itles N :eedsE> all lands belong to the $tate and he who claims otherwise has the
burden of proof so after the escheat proceedings, the property belonging to the estate will go to
the city or municipality where it is found.
$o if the proceeding is in &anila, but the property escheated is in #alamba, the property
escheated located in #alamba will go to the #ity of #alamba and not to the #ity of &anila. 'he
same thing with personal property>where it may be found and the (ule is very specific that the
property will be spent for charitable purposes, for educational purposes, so on and so forth. $o
that is (ule .,.
Ander (ule .,, $ec.- is another form of escheat because that was given in the +A( - years
ago Dsa dami daming pwedeng ibigay sa $pecial 3roceedings, yun lang ang binigayE. 'his
speaks of REVERSION. In other words, the property was ac%uired by an individual in violation
of the #onstitution. Ander the #onstitution, any person, even foreigners who were former
4ilipinos, can now ac%uire property in the 3hilippines and that was given more strength because
of the :ual #iti!enship ?aw.
&' Which court has jurisdiction over 3etitions for $ettlement of 1state?
A' Ander (A *6.,, inferior courts now have jurisdiction over settlement of estate, whether
testate or intestate. $o it is not under the provision which speaks of actions involving title to or
any interest in property but it is a direct provision of the law that settlement of estate, whether
testate or intestate, may be taken cogni!ance of by inferior courts, depending on the gross value
Dhindi assessedE. (emember, there is another provision under +3 ,9., the basis of which is the
Oassessed valueP>dito, gross value of the estate and the location is determinative somehow of
jurisdiction because if it is outside &etro &anila, less that 3877' and within &etro &anila,
3)77'>so suppletory character lang yun.
'he old books speak of #ourts of 4irst Instance D('#E, e0clusively>hindi na yun.
R!LE 38 VEN!E AND PRO$ESS
&' Is settlement of estate limited to the estate of 4ilipino #iti!en?
A' =o.
&' If an American was in the 3hilippines because he was a member of the Armed 4orces, who
joined the +alikatan 4orces in &indanao and he died here, where should the settlement of
estate be done? Is it the place of one;s death which is determinative of the venue? $uppose
one had - residences because he had - wives?
A' 'his is a very confusing provision because the title is O5enue N 3rocessP but the word
Qvenue; is never mentioned. <n the other hand, the word jurisdiction is mentioned three D8E
times.
&' $o, is the last residence of the decedent a matter of jurisdiction or a matter of venue?
A' It is a matter of venue so you cannot %uestion it.
&' $uppose &r. K, a 4ilipino citi!en residing in #ebu #ity died at $t. ?uke;s 2ospital, Fue!on
#ity, where should his estate be settled?
A' In #ebu because it is the place of the final residence of the decedent.
&' $uppose the heirs filed a petition for settlement of the estate in Fue!on #ity, is the venue
properly laid?
A' =o.
&' $o, what happens to the case?
A' 'he settlement must continue because venue is not jurisdictional.
?et me emphasi!e to you that in civil cases, including special proceedings, venue is not
jurisdictional, unlike in criminal cases, venue is jurisdictional and from what we have learned
under (ule ) of the (ules of #ourt, venue may be waived.
$o, if there is no opposition, there is no %uestion as to the petition filed by anybody for the
settlement of the estate of &r. K who is a resident of #ebu, the petition is filed in Fue!on #ity,
the issue is not jurisdiction but only of venue. +ut considering that there was no opposition, then
the petition for settlement must continue.
Se( 0 there does not s*ea6 of @ur-sd-(t-on :ur-sd-(t-on here -s (onferred by law and RA
3+#0 (onfers that de*end-ng on the )alue of the gross estate; wh-(h (an e-ther be the
M1$ or the R1$
&' What is (esidence?
D"ou must have come across the leading case, #uenco, et. al vs. #uenco, cited in your book Dit
has to cited in your bookE because that is a very leading case, also the case of 4ule, et al. vs.
#A, these are the cases about venue and jurisdiction>emphasi!es these cases cited in all
books. 1usebio vs. 1usebio, that is also cited in your book> 'hese are %uestions about the
conflicting rules on venue and jurisdiction.E
A' It is now settled Dbecause of there casesE that residence is only a matter of venue. It is not a
matter of jurisdiction.
'his case of #uenco is about $enator #uenco. 'hat #uenco $treet in Fue!in #ity, parallel to
1spaRa or Fue!on +lvd. 2e was a resident of #ebu but also had a house in Fe!on #ity
because he was a member the $enate. When he died in Fue!on #ity, his residence was in
#ebu. When he died, he was already a widower at the time, so he had two families. 'he first
family with his first wife, and the second family with his second wife. 2is second wife, staying
with him in Fue!on #ity, filed a petition for the settlement of his estate in the ('# D'hen #4IE of
F.#. After the .I day novena for his demise, the heirs of $enator #uenco, filed a petition for
settlement of his estate in #ebu. 'his reached the $#. 'he issue was in fact wrong: Which
court has jurisdiction? &ali. It is not a matter of jurisdiction but only of venue. +ut the greater
error here is not the error of the petitioners but the error of the #ourt. Why? +ecause the F.#.
#ourt on its own Dmotu propioE said Owe are going to give way to the court in #ebu to settle the
estate.P 'hat cannot be done because under the (ule, the court which first takes cogni!ance of
a petition for settlement of estate, takes it to the e0clusion of all other courts. And so, which
court has jurisdiction? +oth courts have jurisdiction actually, but because of the (ule, since it
was first filed with the F.#. #ourt, it was already taken cogni!ance of by said court in F.#. to the
e0clusion of all other courts, including the #ebu #ourt. 'hat is why if ever the court cedes its
authority in favor of the #ebu #ourt, that is wrong. It should have been correct if anybody
interested in the petition files a motion to dismiss on the ground of improper venue but there
was none.
In one of the +ar 10ams using #uenco vs. #uenco, way back in ,..9, this was treated by the
e0aminer saying that a motion to dismiss was filed with the #ebu #ourt and the #ebu #ourt
granted it. Wrong. Why? +ecause the #ebu court did not ac%uire jurisdiction because the
petition was first filed in F. #. and there can be no dual jurisdiction here because the (ule says:
the (ourt a(Au-res @ur-sd-(t-on to the e<(lus-on of all other (ourts
'his case was followed by the case of 1usebio vs. 1usebio and finally settled in the case of
4ule vs. #A, a ,.*- case. 3hilippine reports pa ito. If you want to read it, you can find it in the
3hilippine (eports. +ut 4ule, you find it already in the $#(A. Is that clear? 'ake note of that
doctrine because that is very basic in $ettlement of 1state. $ec. , of the (ule there does not
speak of jurisdiction but only of venue. In 9ule -t has been settled that the res-den(e -s the
a(tual *la(e of hab-tat-on
$o that if a person has two Dwell nagayon, hindi lang two, marami, apat, lima, anim..tingnan nyo
si 3ac%uiao, hindi na malaman kung saan sya resident, &anila, @ensan.. hindi na malaman..
+ut if only 3ac%uiao studied law, he would not have run for any position in the first place> had
he studied law, he would not be a millionaire in the first place.E 4ule settled that residence is the
place of actual habitation or it may not be the place of actual habitation, provided there is
animus manendi Dintent to remainE and animus revertendi Dintent to returnE. Caya pag yung
isang lalaki, mayron legal na asawa, mayron pang kerida, mayron pang kabit, at mayron ding
scholar, in different houses, the residence is that of the original. Why? +ecause there is animus
manendi and animus revertendi. In all other residences, there is only animus amare Dintent to
loveE> so that is regarding this $ection ,.
?et us go now regarding these two: It can be testate or intestate. "ou know testate, in other
words, there is a will. Intestate, there is no will. 'he distinction, regarding these two will give
you also the distinction between an e0ecutor and an administrator.
&' What is the distinction between an e0ecutor and an administrator?
A' 'he e0ecutor is the one appointed by the decedent as embodied in the will. 'he
administrator is the one appointed by the court if there in no will, or if there is a will but does not
designate an e0ecutor, or even if there is an e0ecutor, the e0ecutor refuses to accept the trust or
fails to put up a bond> 'hese are the re%uirements: 2e is either not %ualified/ he fails to accept
the trust/ or he fails to put up a bond so an administrator may be appointed.
&' An administrator is of two kinds, what are they?
A' (ule G7
,. $pecial Administrator D also of two kindsE: With the will or Without a will anne0ed/
9. (egular Administrator
&' In what instances may the court appoint a special administrator?
A'
,. :elay in granting of ?etters of Administration/
9. $ec. G, (ule G6: 'he e0ecutor is a claimant of the estate he represents.
&' $o, when you go to testate, why is it here that they are of two kinds: with the will or without a
will anne0ed? 2ow would you e0plain that? Cailan nangyayari ito? If you are a custodian of a
will of the decedent, what is your obligation?
A' 'o deliver to the court the will within 97 days after the death. D$ec. 9, (ule *-E
&' Are you bound to file a petition?
A' =o. 'he obligation there is only to deliver the will. +ut if you do file a petition, because you
are the custodian of the will, you must have an interest in the estate. "ou may either be the
named administrator, a devisee, a legatee, or a creditor, and with more reason, if you are an
heir, you have an interest. If you are in the custody of the will, and you filed a petition for
settlement of estate, you have to attach the will in your petition.. +ut if you are not in custody of
the will and you are interested in the settlement of the estate, you simply file a petition without
the will anne0ed.
In many instances, I was telling you that settlement of estate is the best e0ample of multiple
appeals, diba? +ecause in the settlement of estate there are several stages.
&' If it is a testate proceeding, what is the first stage?
A' 3robate of a will.
Ander this lesson on a probate of a will, there is this general proposition that the probate court
Dthe court probating a willE either the &'# or the ('#, is a court of limited jurisdiction.
&' What does it mean when the (ule says that a probate court is a court of limited jurisdiction?
A' A probate court can only rule on the due e0ecution of the will and not as to its intrinsic
validity.
'his is what you have to understand. 1ven lawyers do not reali!e this. $abi nila probate court
yan so you cannot %uestion, you cannot raise the issue of ownership. 'he probate court ceases
to be a probate court upon allowance or disallowance of a will but it remains to be a court no
longer of limited jurisdiction. 'hat is why I was emphasi!ing on the petition as settlement of
estate and not as a petition for the probate of a will. Why? <nce a will has been probated,
that;s the end of it? =o. It is only the first stage in the testate proceedings. $o when the (ule
says that the probate court is a court of limited jurisdiction, only as far as the probate of a will is
concerned. 3agkatapos nun, the court is no longer of limited jurisdiction because it has to go>
appointment of the administrator or e0ecutor, approval of the accounting, approval of the
inventory, then payment of debts..papaano limited pa yun? =o longer.
$o as a probate court, the court is limited to the issue of authenticity and due e0ecution, but you
do not transfer courts after the will has been probated, after the will has been allowed or
disallowed which is a final resolution which is a final order or resolution of the court which is
appealable. +ut the appeal here is by record on appeal because it is multiple appeal. 'he court
now is no longer of limited jurisdiction because it is no longer a probate court.
&' Ano ba ang end of settlement of estate?
A' :istribution under (ule .7. 'he first stage of settlement of estate, if it is a testate proceeding
is the probate of the will. 'hat is where the court has limited jurisdiction.
&' Why is this so? Why does this issue pop up here?
A' 'his is because during probate of the will, in the very petition, the jurisdictional re%uirement is
that you have to state what constitutes the estate and the value of the estate. urisdictional
facts.
&' If an oppositor enters the picture, the oppositor says mali yan because what constitutes the
estate are these properties, but what is stated in the petition do not belong to the estate, now,
can the court decide the ownership of those properties?
A' =o. 'hat is where the limited jurisdiction comes into the picture. It cannot because the court
has only the duty of discussing whether the will has been duly e0ecuted so this is only as to the
e0trinsic validity of a will. 'he intrinsic will come much, much later, the disposition of the will.
'he issue of ownership is outside the jurisdiction of the probate court. +ut if the probate court
cannot continue without deciding the issue of ownership, the issue of ownership being incidental
Dintimately related to the issue of probateE to the probate of the will, must be decided, but the
decision here is not final. It is only provisional and it can be contested in other proceedings and
the rule on res judicata will not apply.
In the case of +alaraw which was assigned to you, that was also the issue involved.
In the beginning, there is no defendant. 'he e%uivalent of a defendant in a probate proceeding
is the oppositor. 'he oppositor is not only opposing the probate of the will, but also settlement
of the estate, for one reason or another.
'he objective of the settlement of the estate is the distribution of the estate among the heirs or
those entitled thereto, although not heirs Dthose persons named in the willE.
<nce the court allows or disallows a will, as the case may be, the nature of the court as a
probate court ceases. 'herefore, the issue of limited jurisdiction no longer applies. ?imited
jurisdiction applies only to the authenticity and due e0ecution of the will.
&' <nce the will is allowed, What does it mean?
A' (ule *6: Allowance of the Will
If &r. A is accused of a crime of falsification of documents by forging the signature allegedly of a
testator and during the pendency of the criminal action, the will allegedly forged by &r. A was
probated and allowed, the criminal case should be dismissed because the probate of the court
is final and if not appealed becomes conclusive. Wala na yung forgery because the probate of
a will only avows the fact that the signature there is authentic/ that there was due e0ecution of
the will. 'he case against A for falsification should be dismissed. $uppose he has been
convicted, he shall be released. $upposing he is not released, your remedy is to file a petition
for habeas corpus because the basis .for restraining his liberty no longer e0ists. D$o kita nyo
ang correlations.E
We are talking here of allowance of the will within the 3hilippines.
&' $uppose a will was e0ecuted and allowed DprobatedE outside the 3hilippines, what happens?
A' @o to the ne0t (ule, (ule **: Allowance of Will proved <utside of the 3hilippines and
Administration of 1state thereunder.
&' An American citi!en residing in #alifornia died in #alifornia, his will was probated in the
county state of $an +ernardino. 'hat will has been allowed in the A.$. $hould that will be also
allowed in the 3hilippines?
A' =o.
&' What should anyone interested in the allowance of the will in the 3hilippines do because the
deceased had property in the 3hilippines?
A' It should be reIprobated here and the venue is in the proper court of any province where the
decedent had property.
'his rule shall be read in conjunction with $ec. )G, (ule 8.: 4oreign udgment.
&' What are you supposed to establish or prove in the reIprobate of a will?
A'
,. 'he due e0ecution of the will in accordance with the foreign law/
9. 'hat the testator had his domicile in the foreign country and not in the 3hilippines/
8. 'hat the will has been admitted to probate in such country/
). 'he fat that the foreign tribunal is a probate court/
-. 'hat the laws of a foreign country on procedure and allowance of wills.
6. 'he fact of death Djurisdictional factE of the testator in a place within the territorial
jurisdiction of the court.
'hese are mandatory re%uirements. 'hese must all be established in the 3hilippine courts. 'hat
is how to reIprobate a will which has already been allowed. 'hereafter, the court should appoint
an administrator. 'he foreign allowance of a will leads to the appointment of a domiciliary
administrator. <nce it is probated in the 3hilippines, the court appoints an ancillary
administrator.
&' Who may petition for the allowance of the will or who may oppose thereto?
A' Anybody who has an interest in the estate or in the disposition of the estate of the decedent
&' What are the %ualifications for one to be appointed as administrator of the estate?
A' Any competent person may serve as e0ecutor or administrator. 2e is incompetent if:
,. a minor
9. a nonIresident
8. one who in the opinion of the court is unfit to e0ercise the duties of the trust by reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.
&' If a man cannot sleep without drinking at least 8 beers before he goes to sleep, can he be
appointed as administrator?
A' "es. 2e is not a drunkard.
&' $uppose in the very will, the testator named an e0ecutor of his estate, may the court appoint
another one other than the one named in the will?
A' "es, when such person:
,. refuses to accept the trust D ang gusto nya kasi is he would accept the trust if it is
candy flavoredE/
9. fails to give a bond/ and
8. is incompetent.
&' In the course of the administratorship, when one has already be appointed, can he be
removed? <n what grounds?
A' "es. (ule G9: (evocation of Administration, :eath, (esignation and (emoval of 10ecutor
or Administrator.
$ec. 9. @rounds:
,. neglect to render accounts within , year or when the court directs/
9. neglect to settle the estate according to the (ules/
8. neglect to perform an order or judgment of the court or a duty e0pressly provided by these
rule/
). absconding/ or
-. insanity or incapability or unsuitability to discharge the trust.
&' If a special administrator is appointed because the regular administrator has a claim against
the estate, what happens to the regular administrator?
A' 'he regular administrator is not removed by the appointment of the special administrator
because the regular administrator has a claim under $ec. G of (ule G6. 'he special
administrator only has a specific function which is only to work on the claim of the regular
administrator.
'he e0ecutor of an e0ecutor cannot be appointed as e0ecutor of the principal testator.
E<am*le' (ichard is the testator. 2e appointed 3iolo as his e0ecutor. ?ater on 3iolo died. In
the will of 3iolo, he appointed $am as his e0ecutor. $am cannot be the e0ecutor of the estate of
(ichard.
Reason' An e0ecutor takes charge of the estate. If you are an e0ecutor and you died and you
have an own estate and the e0ecutor of your own estate will now e0ecute the estate of your
testator that appointed you, there will be conflict of interest D&agkakaroon ng sama sama yung
estate. &agkaka halo haloE. 'o avoid possible corruption in the administration of one;s estate.
&' What are the duties of a special administrator?
A' $ec. 9, (ule G7:
,. possession and charge of the properties/
9. preserve the properties/
8. commence and maintain a suit for the estate/
). sell only:
a. perishable property/ and
b. those ordered by the court
-. pay debts only as may be ordered by the court.
&' #an he encumber the property of the estate through lease?
A' It depends. If the lease is not for more than one D,E year, he can because it would fall under
acts of administration. +eyond that, it is already an act of disposition
&' If the court appoints &r. K as special administrator, is the order final and appealable?
A' =o. It is only interlocutory and unappealable because if you appeal the appointment of a
special administrator, there will be no end to the settlement of the estate.
'he special administrator is likewise re%uired to put up a bond.
&' $uppose the testator in naming an e0ecutor of his estate specifically states there that he
should serve as administrator without a bond. #an the court nonetheless re%uire a bond?
A' "es. 'he court has a very wide discretion.
<nce a regular administrator is appointed, the continuation of the duties and functions of a
special administrator will now reside in the special administrator. +ut always remember that if it
is an act of disposition or conveyance, which cannot be done by an appointed e0ecutor or
administrator without permission of the court. "ou always file a motion for leave of court to sell a
specific property and this is part of your accounting one year after.
Accounting is one of the principal duties of an administrator. 2is first duty is to prepare an
inventory within three D8E months from appointment and within one D,E year, prepare an
accounting of his administratorship and the bond that he put up is precisely to answer for the
misadministration .
R!LE >8 INVEN1OR. AND APPRAISAL PROVISION 9OR S!PPOR1 O9 9AMIL.
&' Who are entitled to allowance during proceedings?
A'
,. legitimate surviving spouse/ and
9. children of the decedent Dlegitimate N illegitimate childrenE
(elate to Art. ,.), 4amily #ode: #hildren, even if ,G years of age are still entitled to support
from the estate.
Read Ru-/ $ase
R!LE >+ $LAIMS A7AINS1 ES1A1E
&' What may be claimed against the estate?
A'
,. #ontractual money claims/
9. funeral e0penses/
8. e0penses for the last illness/ and
). judgments for money.
&' $uppose they are not due yet, can they be filed against the estate?
A' "es.
&' $uppose they are not yet due?
A' "es>whether due, not yet due, or contingent, you can file against the estate.
&' When do you file it?
A' =ot more than ,9 months nor less than 6 months after the date of first publication. <therwise
it is deemed waived. D$'A'A'1 <4 =<=I #?AI&$E
S1A1!1E O9 LIMI1A1IONS' *res(r-*t-)e *er-od -n the $-)-l $ode
4## vs $antibane!
&' What were the issues assigned as errors before the #A?
A' Issues
,. Whether or not estoppel applies
9. Whether or not the e0tra judicial partition bet among the heirs were valid
8. Whether or not it is necessary for a partition to be approved by the probate court
). Whether or not the respondent could be held jointly liable with $antibane!.
1estate Pro(eed-ng
3rovisions on a holographic will. It wasn;t clearly stated in this case.
'he parties entered into an agreement.
& #an prospective heirs whether under the testate or intestate enter into a partition over the
properties belonging to the estate?
A 'here can be no partition until and unless the will is allowed or probated.
& Was it really a partition?
A' According to the $# they may act to put an end in any indivision is considered and deemed
to be a partition.
'here can be no partition in a testate proceeding before the will is allowed.
&' What is the rationale behind that?
A' +ecause the $# said if it is allowed then you are divesting the court of its jurisdiction over the
property partition. +ec it is partition, it amounts to distribution. :istribution is the final stage in a
settlement proceeding and there will be no distribution of the estate until and unless all debts
has been paid. 'he court looks into it as an act of divesting of its jurisdiction.
&' #an principle of estoppel be applied?
A' 'he $# said the principle of estoppel will not apply because the basis which is the e0tra
judicial partition is in fact void, a void act of declaration or omission of a party cannot be used as
evidence against the party. If the act is null and void, estoppel will not arise therefrom.
&' Are the heirs liable?
A' 'he $# said he did not even established the fact that you are the proper party in interest
because Anion +ank did not show any evidence to prove that you are really the affiny.
Settlement of Estate
$ec *. &ortgage debt due from estate
Remedy
,. #laim against the estate
- after all the debts has been paid/ upon distribution
9. 4oreclose the mortgage I judicial
- deficiency judgement J by motion only in the same action
8. 10trajudicial foreclosure
- you solely rely on his mortgage, you don;t get any deficiency judgement
&' $ec . 2ow to file a claim
A' In form of a simple application form
,. :eliver the claim to the clerk of court
9. $erve a copy on the e0ecutor or administrator
8. if the claim is due, it must be supported by affidavit stating the amount due and the fact that
there has been no effects.
). if the claim is not due or contingent, it must be accompanied by affidavit stating the
particulars
Se( 0, Answer of e<e(utor or adm-n-strator
,. 10ecutor may file answer within ,- days from the service of claim
9. Answer must set forth claims which decedent has against claimant or else it will be barred
forever.
& What is a statute of nonIclaims?
A A claim against the estate shall be filed within a period of not less than 6 mos and not more
than ,9mos from the date of first publication.
& What is the relationship bet a statute of nonIclaims and limitations?
A A statute of non claims supersedes a statute of limitations. 'he statute of limitation is a period
provided for in the #ivil #ode where actions prescribe. An ordinary prescriptive period in a civil
case is ,7 years from accrual.
&' &r. A took the bus, 3hilippine (abbit, owned by &r. + to +aguio. 2e never reached his
destination because the bus fell over a ravine on anuary -, ,..7. 'hat is the date of the
accrual of the cause of action Dan. -, ,..7E. #an &r. A file a case against &r. + on &arch
977,?
A' =o because the action is barred by the statute of limitations.
&' $uppose &r. + died in ,..-. Dyung owner ng bus, &r. +, not &r. +eanE What should A do?
A' 4ile a claim against the estate within a period of not less than 6 mos. and not more than
,9mos from the date of first publication. $o, the presumption here is that there is a settlement
of the estate of +. <therwise the statute of nonIclaims will not apply.
&' $uppose notice was given on &arch ,, ,..-. $o you have 6 months and it was published
&arch 97, you have not less than 6 months from &arch 97, nor more than up to the ,.
th
of
&arch ,..6. #an you file it in ,..G?
A' =o because it is beyond the statute of nonIclaims. 1ven if it is within the statute of
limitations, you can no longer file it because it is beyond the statute of nonIclaims.
'hat is the meaning of the Ostatute of nonIclaims supersedes the statute of limitations.P
<n the other hand, if + died in ,... of :ecember, you have only have up to anuary of 9777
because the action has already prescribed, the ordinary action.
'he statute of nonIclaims prevails over the statute of limitations. 2owever, the statute of nonI
claims will not apply if there is no settlement proceedings.
R!LE >3 A$1IONS B. AND A7AINS1 E=E$!1ORS AND ADMINIS1RA1ORS

5e ha)e l-m-ted (la-ms aga-nst the estate to the follow-ng'
,. #ontractual money claims/
9. funeral e0penses/
8. e0penses for the last illness/ and
). judgments for money.
'hese are considered as contractual money claims under (ule G6. When you go to (ule G*,
you will note that you cannot file a claim against the estate if it is claimable under (ule G6. $o
contractual money claims, hindi. 'hat is why in (ule G*, you are also limited to the following
claims or actions:
,. (ecovery of real or personal property/
9. (ecovery of interest or lien therein/
8. udgment arising from injuries
&' In actions by and against e0ecutors and administrators, where will the e0ecutor or
administrator get his money to satisfy your prayer in your action? 2indi ba from the estate? $o
why not against the estate, bakit against the e0ecutor or administrator?
A' (ule G6 is not an action> tapos na dyan yung action, it is already through. In G*, it is a
separate and distinct action, so that if it is a complaint, you always file it against the e0ecutor or
administrator. 3ero dito, tapos na yan. 2ence, dahil tapos na, it is urgent> urgency of the
subject matter> so the presumption in G6, that there must an estate proceeding, whether
testate or intestate> without that , you cannot file any claim. $uppose wala, ano gagawin mo?
Iinitiate the testate or intestate proceeding so that you file a claim. It is not an independent
action here.
+ut in G*, it is an independent action. &eron bang testate or intestate proceeding? =ot
necessarily. "ou might say, bakit e0ecutor, administrator? Caya nga Qor; because when you say
e0ecutor, meron yan. Cung walang e0ecutor, administrator. "ou mean to say that there can be
no administrator without an estate proceeding? =o. 'here can be an administrator even if there
is no estate proceeding because you can even undertake e0trajudicial settlement of the estate.
In e0trajudicial settlement there can be an agreement by and between the parties as to the
administrator of the estate. 'he estate does not have a separate and distinct personality. It is
only an entity authori!ed by law in special cases.
As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances.
It cannot be sued because under $ec.,, (ule 8 DWho may be partiesE, it is only an entity
authori!ed by law. 'hat is why you file against the e0ecutor or administrator. (emember that
an e0ecutor or administrator is a natural person. Iba yun sa @uardian ha? A guardian can be a
juridical person.. only guardianship over the property of the ward. In guardianship over the
ward, the guardian cannot be an artificial being or corporation.
&' #ompare $ec. *, (ule G6 D &ortgage debt due from estateE with $ec. -, (ule G* D&ortgage
due estate may be foreclosedE.
A' 'he parties under $ec. *, (ule G6 are the estate of the decedent and the creditor. 'he
creditors may have affirmative remedies as to their claims against the decedent such as going
after his estate. 'he estate is the debtor, the mortgagor DQmortgage due from the estate;E. As
compared to $ec. -, (ule G*, the estate is the mortgagee.
&' Is the estate, under $ec. -, (ule G* allowed the alternative remedies in $ec *, (ule G6?
A' =<. 2e is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to distribution.
'his is the last stage. +ut in the distribution of the estate, what (ule should be followed? 4irst,
before distribution, there shall be payment of debts.
&' What are these debts? 'here are only - specific kinds of debts.
A'
,. :ebts of the decedent/
9. 4uneral e0penses/
8. 10penses for administration/
). Allowance for the widow/ and
-. 'a0es.

&' Ander the rules on preference of credit, ta0es are given priority. Is there an
e0ception? What did you ?abor ?aw teacher teach you about that?
A' 3=+ vs. =?(# case D&arch ,..7E: In case of li%uidation of the assets of the corporation,
even ta0es give way to unpaid salaries and wages. +ut in all other instances, palaging ang
gobyerno ang uunahin. $abi nga sa mga (eviewers, pag wala ka na daw maisasagot sa
%uestion sa ta0ation, ta0ation is the lifeblood of the government.
3ag hindi mo mabayaran avail of (ule G.: $ales, &ortgages, and other 1ncumbrances of the
3roperty of the :eceased. 'he fundamental reason for sales, mortgages, and other
encumbrances is to pay off debts.
&' 'he estate is worth one million D3,&E. After payment of debts, all that had been paid
amounted to 3-77'. 2ow much is left for distribution?
A' <nly 3-77'.
&' If there are - compulsory heirs, devisees and legatees, A, +, #, :, 1, and under the will, A
should receive 3-77'/ +I 3,77'/ #I 3,77'/ : and 1I 3-7' each and what remains is only
3-77', how will you distribute the estate?
A' :istribute the estate by ratio and proportion.
&' $uppose the asset was 3,7& gross value and the obligation was only 3,&. "ou have
3.77' left but the will says to distribute only 3-77'/ 3,77'/ 3,77' and 3-7' to the last two,
may sobra ka, Dthat goes to the pocket of the lawyer?E it should be distributed in accordance
with intestate succession but also pro rata. A' (emember we are talking here of the remainder,
wala nang babayaran. We have also studied the (ules on contingent claims, under $ec. ),
(ule *) D ?iability of :istributees and 1tateE, the twoIyear lien.
&' #an the estate be distributed even before payment of debts?
A' @eneral (ule: =o.
10ception: Assets may be distributed even prior to payment of debts provided the distributee
first gives a bond.
'he remedy is to give a bond. If the asset to be distributed is %uite important, such as real
property, then you give the asset.
R!LE #4 7!ARDIANS%IP
&adali lang itong guardianship. "ou know why? +ecause the (ules are practically the same.
'he fundamental difference is that in guardianship, the subject is still alive. In settlement of
estate, the subject matter is already dead.
1hree B-nds of 7uard-ans'
,. udicial guardian J that appointed by the court in a judicial proceeding for legal guardianship
9. ?egal guardianS guardian by operation of law/ not just appointed by any court. De0.:
parents of minor childrenE
8. @uardian ad litemI that which is appointed by the court not necessarily in a guardianship
proceeding, because this guardian ad litem is only on a temporary basis with a specific duty
to perform.
&' Which court has jurisdiction over a petition for guardianship?
A' 10clusively and originally cogni!able by the 4amily #ourt D('# specifically designated as a
4amily #ourt because of (A G86. E. 'here is no inferior court here.
2owever, in settlement of estate, jurisdiction may be lodged in inferior courts depending on the
gross value of the estate.
1he )enue -s the res-den(e of the ward. If the ward has no res-den(e and the
guard-ansh-* a**l-(at-on -s o)er the *ro*erty of the ward; the )enue -s where the
*ro*erty -s s-tuatedC lo(ated
'ake note that the venue here is the residence of the ward as distinguished from the venue in
adoption, which is the residence of the adopter. +akit? +ecause in adoption, the result is that
the adoptee will become the child of the adopter for all legal intents and purposes. +ut here, it is
the guardian that goes to the ward as the relation here is only of a temporary character.
.ou f-le a guard-ansh-* *ro(eed-ng only on 4 grounds'
,. &inority/ and
9. Incompetency.
'he term OincompetentP here is different from that in settlement of estate. 2ere,
OincompetentP refers to:
$ec. 9. &eaning of the word OincompetentP. Incompetent includes:
,. 'hose suffering from the penalty of civil interdiction Da penalty attached to convictionE/
9. 2ospitali!ed lepers/
8. 3rodigals Done who is a spendthrift/ wastes money or property on things without reserving
any for himself and before you know it, he is not only a prodigal son but also a grasa man.E/
). :eaf and :umb unable to read and write/
-. 'hose of unsound mind although they have lucid intervals/
6. 3ersons not of unsound mind but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves or manage their property.
A m-nor; under the age of 0>; (an be the sub@e(t of guard-ansh-*
$ase of E)angel-sta' 'he petition for guardianship was granted by the court and #ani!a was
appointed as the guardian of 1vangelista. As a guardian, remember the rights, the guardian can
sue and be sued, can collect debts, can manage the properties of the ward. $o one of his
actions here was to ask the 1stradas to vacate the premises owned by the ward. udgment
was rendered in favor of plaintiff, but on appeal, it was reversed and on appeal again from the
order of reversal, it was sustained. 'hat is why it went up to the $upreme #ourt. +ut pending
the appeal with the #A, the ward died. 'his is a case for ejectment. 'he issue here is that
considering that there is no more guardianship because death terminates guardianship, hence,
the case must be dismissed because the party appellant is not the proper partyIinIinterest. 'he
$# said =o. 1ven if death terminates guardianship, in this particular case, it is contrary to the
principle of e%uity of justice if we have to start all over again. 'he case is already with us, so
remand of the case to the lower court would be a waste of time and more importantly, they
found from the record that #ani!a was one of the heirs of the ward. 2ence, there is still a partyI
inIinterest even if there is no settlement of the estate. Ang importante ay pag guardian ka tapos
heir ka din, there is no need for the settlement of the estate.
NO1E' (emember that you find that also in $ec. ,6 of (ule 8: $ubstitution of 3arties DOwithout a
need of appointing an administrator or e0ecutor of the estate in the substitution of parties.PE.
'hat is the doctrine laid down in this case.
&' Who can initiate a petition for guardianship?
A' Anybody who has interest in the person of or property of the ward. If you cannot establish
any interest in the person of or in the property of the ward, you cannot file a petition for
guardianship.
Buyena )s Ledesma' In this case, they were able to establish interest. 'hey were both
single and they were living together.
"ou have to establish interest. 'he (ule says, friends, relatives, or any person who has interest.
&' What is the procedure?
A' 4ile a petition with a court of competent jurisdiction in the proper venue. And the court will
issue an order setting the case for hearing. If there are oppositors, then they can file their
opposition. (emember, this is a special proceeding and jurisdiction is always ac%uired through
publication. After trial, there will be decision either allowing or disallowing guardianship. In
other word, appointing a guardian or not appointing a guardian.
'he guardian now enters into the guardianship after he has filed the necessary bond. 'he
duties and responsibilities of a guardian are similar to that of an e0ecutor or administrator .
&' #an he sell the properties of his ward?
A' "es. 1ven without permission from the court if the property involved is personal property.
+ut, if it is real property, just like, an e0ecutor or administrator, he has to get permission from the
court. <nly with the permission of the court will the sale of real property be considered a valid
sale. It is not only permission of the court which is re%uired, but also notice to all interested
parties. In guardianship, the absence of notice, even with permission of the court, still renders
the sale void.
&' In what instances may guardianship be terminated?
A' :eath also terminates guardianship, but the general rule is that if the ground for the
appointment of the guardian ceases, then guardianship ceases as well.. If the minor is already
of age Dremember, even the minor himself can ask for guardianshipE. 'his is an e0ception
regarding lack of a minor;s legal personality to sue. If the ground is based on incompetency and
it is established that the ward is already competent, or that he was insane, but now, he is no
longer insane/ a petition for termination of guardianship may be filed.
&' $hould the legal guardian file guardianship proceedings over the person and property of
their minor children?
A' "es if the property of the war, which is their own children, is worth more than 3-7'. If they
sell the property of their ward, even if they are the legal guardians, the sale of the property is
void.
&' :istinction between a guardian and a trustee
A' 'he distinction between a guardian and a trustee is that the latter has the legal title while the
guardian has no legal title of the property. $o that the trustee can negotiate and encumber the
property under trust. Although the same trustee may either be a trustee and a beneficiary at the
same time.
A trust relationship can either be e0press if there is a trust agreement between parties or implied
if it is by operation of law. 10amples of trust by operation of law is when parents die without a
will and then some children are still minors, whoever is the guardian of the minor holds the
property for and in behalf of the minors in trust. $o that you will note that the guardian here,
being the trustee, may not be a party to a written trust agreement but he cannot dispose the
minorLs property without consent of the court for the reason that he is only in trust for the ces %ui
trust. 1ven in the absence of a written contract, there is a trust relationship by operation of law.
ADOP1ION
+ackground of adoption: 'he rule on adoption has been amended several times and even the
rules on procedure, which you find in .. and ,77 are no longer applicable. 'hey have been
repealed e0pressly. As early as the midI*7s when the #hild and "outh Welfare #ode D3: 678E
was enacted, it already amended the rules on adoption. 3: 678 was also amended by the
4amily #ode. +ut all these are no longer applicable in toto because of the new laws on adoption
which should be the subject matter of todayLs section. 'he laws applicable now is not even the
#ivil #ode per se, but rather it should be (A G-69, the :omestic Adoption ?aw of ,..G and the
Inter #ountry Adoption ?aw of ,..- D(A G7)8E. 'hese are the substantive law governing
adoption. <ur concern is the rule on adoption.
AM ,4D+D,4S$; dated :uly 4,,4; -s the new rule on Ado*t-on
&' Who may be adopted only?
A' @eneral (ule: one who is legally available for adoption.
&' Who are legally available for adoption?
A' 'hose who are voluntarily committed andBor involuntarily committed.
'he parents or guardians of these persons have voluntarily surrendered their parental or
guardianship authority to the :$W:.
&' Who are those involuntarily committed?
A' udicially or administratively deprived. &inors, whose parents or guardians are
administratively or judicially deprived of their authority over these persons. 'hey are involuntarily
committed. And within that concept, you have the abandoned, the dependents, and neglected
children.
&' What is a childIplacement agency as distinguished from a childIcaring agency?
A' 'he distinction is in the services that they cater. 3ag placement, it is to provide
comprehensive child welfare services including, but not limited to, receiving applications for
adoption, evaluating the prospective adoptive parents, and preparing the adoption home study
while pag caring, it is like 2ospicio de $an ose, which provides 9) hour residential care
services for abandoned, orphaned, neglected or voluntarily committed therein.
&' Which court has jurisdiction over a petition for adoption?
A' It is the 4amily #ourt. ('# is not even a totally and perfectly correct answer because it may
be another ('#.
&' What is the venue?
A' 'he place where the adoptive parents reside.
NO1E' 2ere, the meaning of residence is the actual habituation of the petitioner.
We are only going to study 9 fundamental %uestions on adoption. Who may be adopted and
who may adopt. <nce you perfect that we can go to another lesson.
&' Who may adopt? <r who is a %ualified prospective adopter?
A'
,. Any 4ilipino #iti!en
9. Any alien
8. @uardian, with respect to the ward. And remember, there is no %ualification as to the
citi!enship of the guardian. 'he only %ualification is that the guardianship must have ended
AND his accountability as a guardian has been completed. "un lang ang %ualification.
&' =ow letLs go to the 4ilipino, what are the %ualifications?
A'
,. of legal age/
9. he must possess full civil capacity and legal rights/
8. of good moral character/
). has not been convicted of any crime involving moral turpitude/
-. emotionally and psychologically capable of caring or children/
6. financially capable or economically capable/
*. at least ,6 years older than the adoptee.
NO1E' When one is of legal age, a minor cannot adopt. +ecause he must be capable of
un%uestionable demonstration. Ander the (ules on 1vidence, the court can either take judicial
notice of that because he is capable of un%uestionable demonstration.
&' What does possession of full civil capacity and legal rights mean?
A' @ive me a person who is not possessed of full civil capacity and legal right. A convicted
person which has received an additional penalty of civil interdiction.
&' 2ow about a deafImute? Is a deafImute in possession of full civil capacity?
A' Ander the rules, a deafImute who is not able to read and write is not in possession of full civil
capacity, thus it is incapable of contracting obligations.
&' A person caught urinating, and charged of urinating in public. Is this not moral turpitude?
A' Arinating or defecating in public is an offense and not a crime. 'he re%uirement speaks of
one who has not been convicted of a crime, which is punishable by the (evised 3enal #ode.
&' +ut if you are charged of (ape, can you not adopt?
A' =o. +ecause it speaks of conviction. "ou must first be convicted.
+ut if you are convicted of homicide, recent jurisprudence say, you can still adopt because it is
not a crime of moral turpitude. So tatlo; there must be a (r-me; there must be (on)-(t-on;
and -t must be of moral tur*-tude.
&' 2ow do you establish your emotional and psychological capacity?
A' #learances to show that you have not been convicted from a crime of moral turpitude.
#learances from ('#, police, 3=3, barangay, &'#, etc. And these clearances will ought to
show that you are of good moral character, that you are emotionally and psychologically
capacitated, subject of course to presentation of evidence and crossIe0amination. Wala namang
summons sa adoption.
&' 2ow do you establish your financial capacity?
A' #ertificate of employment, income ta0 returns.
&' When we speak of age gap, the miracle number is ,6, why? What is sought to be avoided by
this age gap?
A' 'o avoid temptation. "ou look at the history of the #ivil #ode of the 3hilippines which was
adopted from the #ivil #ode of $pain. And being of 1uropean origin, there is that also a ,6 year
old gap. &alalaking bulas ang mga european and they seek adoption as a means of having
mistresses.
&' Who may be adopted?
A' @eneral (ule: one who is legally available for adoption.
&' Who are legally available for adoption?
A' 'here are *. $o that minority is not an absolute re%uirement to be adopted. (elationship is
not even a dis%ualification on the part of the adoptee. because they can be adopted.
What I would like to emphasi!e is the doctrine laid down in $ang ) $A, which is that consent
must be given either by the prospective adoptee, if he is at least ,7 years old, or parents, or
guardians, or the :$W:. Without that consent, as laid down in this doctrine, adoption is null and
void.
$o you can adopt even your own child. "ou can even adopt your own grandchildren just like
what uan 3once 1nrile did to his grandchildren.
&' Another person who may adopt is a foreigner, and he may adopt under the domestic
adoption law or the interIcountry adoption law. What are the re%uirements?
A' $o all the re%uirements applied to a 4ilipino prospective adopter are also re%uired of an alien.
'herefore, he must be of legal age, in possession of full civil capacity and legal rights, of good
moral character, not convicted of a crime involving moral turpitude, etc.
<ver and above this, an alien is also re%uired:
,. he must have continuously resided in the 3hilippines 8 years prior to the filing of the
adoption/
9. he must have a certification from his consular official that he is in possession of full civil
capacity/
8. his country of origin must have diplomatic relations with our country/
). his country of origin must allow the adoptee to become a citi!en of his country/
-. that his country of origin allows the adoptee to enter the country of origin of the adopter/
&' Where should he file this petition for adoption? D$ection 9GE
A'
,. It may be filed by a foreign national or 4ilipino citi!en permanently residing abroad with the
4amily #ourt having jurisdiction over the place where the child resides or may be found/
9. It may be filed directly with the InterI#ountry Adoption +oard.
When an alien files a petition before the InterI#ountry Adoption +oard, the alien will come here
in the 3hilippines and will bring the adoptee and the social worker back to his country of origin
for the trial custody of 6 months will happen there.
'his is purposely done by the law, because there is an objective of discouragement. 'o
discourage the adoption of 4ilipino citi!ens by aliens. In fact that is only allowed if the
prospective adoptee cannot be adopted by a 4ilipino. 4ilipinos have the preference of adopting.
&' What constitutes the allegations?
A'
,. urisdictional facts/
9. legal capacity of the prospective adopter and the adoptee/
In the case of Re*ubl-( ) %ernande/ D,..*E, the $# said that the petition for adoption does
not carry with it the change of name of the adoptee. With the present rules on adoption
specifically under $ection ,7, this doctrine does not apply anymore. 'his is a good bar %uestion.
$o you can now have joinder of causes of action in special proceedings, in effect. :ati wala. $o
you can now join in your prayer, asking for a change of name and for adoption. ?et me
emphasi!e, it is a change of name and not a change of surname because change of surname is
an automatic effect of adoption.
&' After you have filed a petition for adoption, what happens now?
A' 'here would be a case study, where it is immediately assigned to a social worker. Ander
present dispensation in our jurisdiction, every family courts is now provided with a social worker.
+ecause a petition for adoption is e0clusively cogni!able by the 4amily #ourts.
&' 4or what purpose is this?
A' <ne is the home study report and the other is the case study report. 'he home study report
is about assigning to the social worker of the respective adoptee and the case study report is
about the prospective adopter.
'he general objective of adoption, why it is allowed under the rules, is that which leads to the
benefit of the adoptee.
Ander the rules, it is mandatory that the petitioner must appear and testify. $imilar to an
annulment of marriage case, there can be no stipulation of facts here or confessions of
judgment. 'here must be actual presentation of evidence here. And basic re%uirement here is
the consent given by the adoptee, the parents or the guardians of the adoptee.
&' After the hearing, may the court render judgment now?
A' 'he judgment referred to here is not similar to the judgment that we have ordinarily because
the judgment here is always subject to the issuance of another decree of adoption. Ang finality
dito is not the finality of the judgment but rather the finality of the decree of adoption.
&' When is the decree of adoption issued?
A' After complying with the 6 month trial custody. Again, this is another undertaking of the
:$W:. 'ignan niyo, the home or case study report is before the decision is rendered, but
before a decree of adoption is rendered kailangan pa ng isa pang report which is the trial
custody report.
&' 4or how long?
A' @eneral (ule: 6 months.
10ception: when it is in the best interest of the child/ the petition during the hearing is that the
prospective adoptee is already living with the adopter.
&' After the decree of adoption has become final and e0ecutory, what is the ne0t?
A' 'here should be a new birth certificate issued. (emember that one of the rights of a party in
litigation is the right to a speedy and public trial. +ut this adoption proceeding is e0ceptional
because even the documents there are public records but are not open to the public, not
anybody can get it including the new birth certificate issued to the adopter.
NO1E' +ut take note that under the rule on rescission of adoption, the issued certificate of the
civil registrarLs office is cancelled in favor of the old birth certificate, which means that the old
birth certificate is not deleted, but remains in the record. And this is the reason of the confidential
nature of the proceedings.
&' What is adoption?
A' It is a judicial proceeding whereby the relationship of paternity and filiation is established. A$
simple as that.
According to a noted professor, when a decree of adoption is final and e0ecutory, there is the
total and absolute cut of any legal relationship between the natural parent and the child.
Ander the new rules, the adopter cannot rescind the adoption but only disinherit the adopted
child. An adopted child has all the rights of a legitimate child.
%ABEAS $ORP!S
&' What is the constitutional provision about habeas corpus?
A' 'he privilege of the writ of habeas corpus shall not be suspended e0cept in cases of invasion
or when public safety re%uires it. It is not the writ which is suspended but the privilege.
&' What is a writ of habeas corpus?
A' It is an order or judicial process directed to the person to show cause for the reason of
detention.
&' +y that definition, it is directed in two conditions, which are:
A'
,. illegal detention or confinement/
9. illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or confinement or illegal
withholding of custody from a person entitled thereto.
&' What is an e0ample of the first instance?
A' 5iolation of the constitution, whereby a person is deprived or restrained of his liberty or not
afforded a right to due process, or an order from an authority which has no jurisdiction.
&' What is an e0ample of the second instance?
A' &alimit itong mangyari within the family, where the mother or father fights over for the
custody of the child.
&' If a woman leaves the parental home in order to stay with her paramour, can the parents file
a petition for a writ of habeas corpus?
A' It depends. If the child is a minor, a writ of habeas corpus is available. +ut when a child
comes of age, the writ of habeas corpus is not available.
&' $uppose a judge renders a judgment penali!ing a person with imprisonment of 6 years ,
month and , day, and then the convict has already stayed for more than that period of time, is
the writ available?
A' "es, the writ is available because that is the immediate remedy. Although you can also file
certiorari but it is no longer immediate here. +ecause what do you intend to annul there? wala.
&' What is a preliminary citation as compared to the writ of habeas corpus or the peremptory
writ?
A' 3reliminary citation is a citation to the government officer having the person in his custody to
show cause why the writ of habeas corpus should not issue Ddetention not patently illegalE.
3reemptory writ is issued when the cause of the detention appears to be patently illegal and the
nonIcompliance wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the
preliminary citation and go directly to the issuance of the writ of habeas corpus.
A person in custody of another, restraining the liberty of another, must give a return upon receipt
of the writ of habeas corpus. 'hat return can either be prima facie evidence of the detention or a
plea of the facts stated therein, in the return.
&' Ano ang ibig sabihin nito? D$ection ,8E
A' 'he content of the return as to whether it is a plea only or prima facie evidence of detention,
they distinguish as to who has burden of proof. If the return contains prima facie evidence of the
detention, then petitioner has the burden of proof to show that the detention is illegal. +ut if it is
only a plea of the facts stated in the return, then the one who has the custody of the person has
the burden of proof.
$o a writ of habeas corpus is directed to a jail warden. When the jail warden prepares the
return, which is brought to the court, he says that this person is under a commitment order,
merong desisyon ang korte that this one should be imprisoned because he was denied bail
although is appeal is still pending. 'hat is prima facie evidence of the cause of his detention,
and when that is submitted to the court, the applicant has the burden to establish that that
commitment order is illegal.
+ut if the return, it says well i am taking custody of this child because i am the father, that is not
a commitment order or judicial order, that is coming from a private person. 'herefore, that is not
prima facie evidence but only a plea of the facts stated therein. 2ence, the father will show that
he has the right to take custody of the child and not anymore the petitioner.
R!LE 0,8 E$%AN7E O9 NAMEF and 0,> E$ORRE$1ION O9 EN1RIESF are still applicable.
'hey have only been amended but are not yet repealed by RA #,2>. 'herefore, an affected
person can avail of (ule ,78 or (ule ,7G without (A .7)G being violated.
RA #,2> is known as administrative procedure of changing oneLs name or nick name or
administrative procedure of correcting an entry in a document. 'herefore, being administrative, it
is e0trajudicial. In case of Rules 0,8 and 0,>, they are judicial processes.
&' Which courts have jurisdiction over (ules ,78 and ,7G?
A' ('#, specifically the 4amily #ourts.
&' 5enue?
A' (esidence in case of change of name. Where the registry is located in case of correction of
entries.
&' What are the amendments to these two rules brought about by (A .7)G?
A' (emember that (A .7)G speaks only of names and nickname but when (ule ,78 says
change of name, it does not only refer to name or nick name but also to family name. $o if you
want to change the family name you cannot avail of (A .7)G.
&' What are the grounds?
A'
'he same grounds. Ander (A .7)G, the same grounds:
,. 'hat the name is ridiculous. If your name is ?ucifer, you can have it changed under (ule ,78
or (A .7)G.
9. 'ainted with dishonor. If your name is <sama +in ?aden, you can have it changed.
8. "our name is very difficult to pronounce or write. If your name is
supercalifragilistice0pialidocious.
). 'hat you are known by the name in the community.
-. 'o avoid confusion.
6. 'o avoid foreign alienage.
$o the same grounds either under (ule ,78 or (A .7)G.
Ander (ule ,7G, you have to correct entries in a document. And the enumerated public
documents where entries have had are as many as possible. 'hose which are in the custody of
the register of deeds. If the change are substantial, you cannot avail (A .7)G but (ule ,7G. "ou
can only avail of (A .7)G if the change sought is clerical or typographical in nature.
&' =ame is &aria #ecilia when in her birth certificate it shows as &a. #ecilia, is that
typographical or clerical error?
A' 'here is no error there. What you have to seek is change of name because &a is different
from &aria #ecilia. 'here is no error there.
"ou cannot avail of (A .7)G if it will change se0, status, or nationality. If there is error you can
change it under (ule ,7G and not (A .7)G.
&' $uppose you do it under (ule ,7G, and it was denied. Where do you appeal or what is the
remedy?
A' 'he remedy is to go to the #ivil (egistrar @eneral who is the &anager of the =ational
#ensus Administrative <ffice. It is not an appeal but a motion for reconsideration. If the civil
registrar affirms the denial, you file a 31'I'I<= under (ule ,7G.
&' @oing back to (A .7)G, A was born in Fue!on #ity, he now resides in +aguio #ity. $hould he
go to Fue!on #ity in order to file under (A .7)G?
A' =o, he has to file it in +aguio and under the rules the two civil registrar, that of +aguio and
Fue!on city will coordinate. It also can be done abroad, by filing the same with the 3hilippine
#onsulate, it is a matter of communication.
NO1E' Appeal in (A .7)G is with the #ivil (egistrar @eneral. Although it is not really an appeal,
it is a motion for reconsideration. Appeal under (ule ,78 or ,7G is ordinaryB regular appeal. In
(A .7)G, it is not really an appeal, wala naman kasi appeal sa administrative remedies, you use
the word appeal for facilitation of better understanding. +ut that is not an appeal, motion for
reconsideration siguro.
EVIDEN$E
1ES1IMONIAL EVIDEN$E
'he weakest of all kinds of evidences precisely because it emanates from man who can always
try to controvert matters.
5hat are the Aual-f-(at-onsG
"ou better memori!e the %ualifications. ItLs very simple because almost all problems of the
%ualification of a witness can be answered through these basic characteristics of a witness.
A w-tness -s one who (an *er(e-)e and *er(e-)-ng and (an ma6e 6nown h-s *er(e*t-on.
$o anybody.
$an a deafDmute test-fyG $an a bl-nd test-fyG
If he can perceive and perceiving and can make known his perception, he can testify. 1ven if
you donLt get a perfect score, you will not get a !ero for that because that is a correct answer.
$an a (h-ld of tender age test-fyG
If he can perceive and perceiving can make known his perception, he can testify.
In one and recent case wherein a child was asked to testify, the $# allowed the child to testify
because they find out that what is the criteria for ability to perceive is not just perceiving but
making known your perception to others. 'his is the case of 3eople v. +ulimlit Dnot sureE, they
spoke of the ability to perceive, then ability of communication. And they added the other one, the
ability to know the difference between what is right from wrong. In other words, some cases use
it as the ability to understand the nature of an oath.
In another case, the $# said that the child was not %ualified to testify because he cannot
perceive and cannot make known his perception. 'he child was 9 ,B9 years old.
$an a retardate test-fyG
$he was the only witness in a rape case where she was a victim, the defendantLs counsel was
able to destroy the testimony to the point of even getting an answer that she likes the act of
rape. +ut the $# convicted the accused nonetheless on the sole testimony of the retardate.
(ationale: the retardate is %ualified because she can perceive and perceiving can make known
his perception.
D-sAual-f-(at-onG
+asic e0ception to the general rule Done can perceive and perceiving can make known his
perceptionE is if the law dis%ualifies him. $o if there is a law dis%ualifying a person, even if he
can perceive and perceiving can make known his perception, he is dis%ualified. "ou get that
from other laws, substantive laws. We have studied in (ule ,,. regarding a state witness. <ne
of the %ualifications of a state witness is that he must not have been convicted of a crime
involving moral turpitude. If you are convicted of a crime of moral turpitude, you cannot testify as
a state witness because the law dis%ualifies you to testify.
If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot
be a witness to a will under your wills and successions law. And remember, before you
authenticate a will, you must present the three instrumental witnesses. If one witness is
convicted of perjury etc. then he cannot testify as a witness.
Other d-sAual-f-(at-ons'
0 Mental -n(a*a(-ty or Immatur-ty
When you speak of maturity, it does not go with age. "ou may be of age but still immature. "ou
may not be of age but already mature. <ne who cannot decipher what is good and right. <ne
who does not appreciate the sanctity of an oath. 'hese are signs of immaturity. In other words,
you are irresponsible. Who is irresponsible? <ne who cannot live up to situations. Who is
responsible? If he has the ability to respond. $o you are irresponsible if the incident calls for a
correct response and you did not.
But -f you are *ronoun(ed to be -nsane or *sy(hot-(; you are d-sAual-f-ed
#hildren, under the (ule on $ection 9,, because of their maturity but remember that the
children may even be more mature than the adults. $o this is a caseItoIcase basis. And
because of the $h-ld 5-tness Rule it has demasculated or efeminated, wherein children cannot
testify. +ecause under the #hild Witness (ule, there are a lot of e0ceptions where a child can
testify. 'here are a lot of what you call testimonial aids. If a child is testifying in a crime of rape,
you can give her a doll, then she would testify. What are your parts in the body which are similar
to the parts of this doll. <r she can ask to be held by the hand of her grandmother, mother,
brother, sister, etc. In fact, two years ago in the bar e0ams, there was a %uestion about fiddling
testimony, this is under the #hild Witness (ule.
4 Mar-tal d-sAual-f-(at-on rule
.ou often (onfuse that w-th mar-tal *r-)-lege rule. A very important guide here is that the
marital privilege rule, the statements in the testimony which are not allowed are those of
communications which are confidential. +ut this is not so in marital dis%ualification rule. And in
the marital dis%ualification rule, the time frame is within or during marriage. +ut this is not in the
marital privilege rule. 'hese are the things. but what are the waivers here? 'he waiver is upon
consent. Another waiver is one against another. 10ample is for annulment of marriage, the
witness in chief is the party involved.
8 1he Dead ManHs Statute
$o if A files a case against the estate of +, or the property belonging to + being insane, then A
cannot testify on matters ante litem motam Dbefore the controversyE. 'he rationale behind is that
when law closes the lips of someone, the adverse partyLs lips must likewise be closed. +ut you
might be given certain problems, remember that the action here is limited to actions against the
estate in case of a deceased and the property of the insane in case the defendant is insane. $o
if it is the estate, it must be an action against (ule G* Daction by or against the e0ecutor or
administratorE, which are recovery of real or personal property, recovery of decedentLs interest or
lien thereon or recovery for damages arising from an offense or action. $o it will not be a
contractual money claim, because it is a claim against the estate. 'his one is against the
e0ecutor or administrator.
10ceptions: If there is a waiver, if one consents to the other. +ut an implied waiver here is
if the defendant e0ecutor or administrator interposes a counterclaim. 'he dead manLs statute
does not apply because who will establish the counterclaim. 2ow will you oppose the
counterclaim. And remember that the subject matter are those before the controversy, ante litem
motam.
2 Pr-)-lege Rule
+asic characteristic here in these instances is the confidential nature of the communication
between one party and the other. $o you start with husband and wife. It is not stated there but
this husband and wife relationship can only be invoked by those who are legally married.
Although it is not stated in the (ules. +ecause if you give that privilege to those who are not
legally married, you are giving a premium to illegality. 'herefore, if you are only a common law
wife, this rule will not apply to you.
" Lawyer and $l-ent relat-onsh-*
It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify
on matters which he receives from the client or regarding matters he gave as advices to the
client. 2ow about the client testifying? <f course, the client can testify, but not the lawyer. +ut,
together with the lawyer and the alter ego of the lawyer which is the secretary or his
stenographer. $o that would even be sui generis, that would even include his clerk in the office.
+ecause, practically, the secretary or his stenographer knows everything. +ut this has
something to do in the course of the practice of the profession. 4or e0ample: a client goes to
you and communicate matters regarding her amorous affairs and starts insinuating something,
this has nothing to do with the case. And of course if there is consent, this is another waiver.
+ Do(tor and Pat-ent relat-onsh-*
?ook, there is a peculiarity there. 'he dis%ualification is only in civil cases and not in criminal
cases. +ecause in many instances, the doctor is even re%uired to testify in criminal cases. 'he
term doctor e0pands also to his alter ego, or similar, sui generis also. But how about the Aua(6
do(torG =o. It is not within the privilege because that would again be giving premium to an
illegal practice of medicine. And also the matters privileged are those within the communication
within the confidential nature of the communication in relation to the medical practice of the
person.
3 Pr-est and Pen-tent relat-onsh-*
At least in the catholic church, this has never been violated. A lot of priests have fallen and got
out of their priestly ministry but had never broken this confession.
> Publ-( Off-(er
+ut here what you have to look into is the public interest. If in disclosing matters, it would be
detrimental or prejudicial to public interest, then you cannot force. 10ample is military secrets.
+ut not the testimony of oakland mutineers.
Parental and 9-l-al Pr-)-lege
3arental is with regard to the 3arent who cannot be compelled to testify against their children.
4ilial is with regard to the child who cannot be compelled to testify against their parents. 'his is
not a dis%ualification per se. 'hatLs why it is privilege. It is more of legal incompetency. 3arental
privilege and 4ilial privilege. #ompulsion. +ut if parents would like to testify against children,
then go ahead. And if the children would like to testify against their parents, there is no
prohibition. "ou cannot force them if they do not want to. 'his is where the prohibition lies. 'here
are many jurisprudence where the accused is the father in the crime of rape. 'he daughter can
definitely testify against the father. 1ven the mother can testify against the father. 'his is not a
marital dis%ualification.
ADMISSIONS AND $ON9ESSIONS
When we speak of admission, this is a statement of a fact. 'here is no admission of liability
here, necessarily. +ut when you speak of a confession, it is always an acknowledgment of guilt.
It is an admission of liability.
$o an admission, as a general rule, is admissible as against the admitter but not against other
people. While in confession, it must definitely be against the confessant and never against other
people.
5hat -s the e<(e*t-on to thatG
InterIlocking confession.
5hat -s the do(tr-ne of -nterDlo(6-ng (onfess-onG
If 6 are accused and ) of them e0ecuted an affidavit detailing how the crime was committed and
pointing to the other 9, that e0trajudicial confession is admissible as against the other 9 who did
not confess, pursuant to the doctrine of interlocking confession.
NO1E' When you speak of confession, personal yan. It refers only to the confessant. +ut when
you speak of admission, ordinarily it is admissible as against the admitter. 'hat is not absolute
as it can be admissible as against other persons. $o $ection 96 says act, declaration or
omission of a person is admissible as to him. $o even in the negative it is admissible as to him.
'he act referred to there refers to a physical act. :eclaration refers to a statement. <mission is
the failure to do something which the law calls you to do or provides that you do it but you did
not do it. $o that is always admissible as to the declarant, actor, or omitter.
:onLt confuse this with the res inter alios acta rule. 'hat is provided for in $ection 9G. 'hese
following sections must be read together. $ection 96, 9G and 8) Dother side of the res inter alios
acta ruleE.
$ection 96, the act, declaration, or omission of a party is admissible as to the actor, declarant or
omitter. $elfIe0planatory. If you do it, then you are liable. +ut remember that the admissibility of
the declaration must be against their interest. +ecause under the (ules of 1vidence, a
declaration which is selfIserving is inadmissible. $o if i declare that I did not steal the car, it is a
selfIserving declaration. It is in fact a denial. And a denial, although stronger than affirmative
statement cannot always be taken in your favor. $o the act, declaration, or omission must all be
positive. 'he declaration must be against oneLs own interest. $o when you declare, for e0ample,
that I was with &r. A when he robbed the bank that is a declaration against interest. 'hat can be
taken against you. +ut when you speak of the res inter alios acta rule, itLs different. 'he rights of
a party cannot be prejudiced by the act, declaration or omission of another. $o if 3edro acts,
declares or omits, that act, declaration, or omission cannot be taken against uan. "ung kay
3edro kay 3edro. "ung kay uan kay uan. $o donLt confuse $ection 96 with $ection 9G. 'he
act, declaration or omission of a party cannot be taken against the other.
5hat -s the general ruleG
If you do something, you are responsible for it. If you do something, another is not responsible
for it. @anun lang yan. Although, what you have to look into are the e0ceptions in the res inter
alios acta rule. $o when you speak of an e0ception, the keyword there is privity. 3ag may privity
of relationships, then that is an e0ception. $o when A does something, that act, declaration, or
omission is not admissible as against +.
E<(e*t-ons'
,. If there is privity in their relationship. What is that relationship? It can be a relation of
partnership, agency, coIownership, coIdebtorship. $o yan ang e0ception. + can be liable for
the act of A, if + and A are partners, agents of each other, coIowners, or coIdebtors. +ut in
establishing the e0ception, you have to establish the e0istence of the agency, partnership,
coIownership by evidence other than the act, declaration or omission of a party. $o that is
where the difficulty lies because you have to get other evidence other than the act,
declaration or omission. $o for e0ample, A says, I entered into a contract with K together with
+ who is my partner, the contract or the act of contracting cannot establish partnership. "ou
have to establish partnership by other evidence other than the act of contracting. And that
holds true with agency, coIownership, and coIdebtorship.
9. $ons*-ra(y. In criminal law, the act of one is the act of all. you have to establish conspiracy
by evidence other than the act, declaration or omission of the party.
8. Adm-ss-on by *r-)-es. $o these relationships that we have e0emplified are actually legal
relationships. +ut when you speak of privies, they are other forms of relationship. 4or
e0ample, the relationship between the successorIinIinterest and predecessorIinIinterest,
father and son relationship, by succession. 'hat is also privity in relationship.
). Adm-ss-on by s-len(e. If A, +, #, :, and 1, were the accused of robbery and they were put
in jail. 'hey were confronted by the private complainant. 3rivate complainant pointed them
as the accused and A, +, and # admitted their guilt reasoning poverty, : and 1 kept silent.
'hat is an admission by silence. +ecause they could have reacted. $ilence means consent.
10ceptions to admissions by silence, if you are supposed to react and you did not react, your
silence is admissible against you. If you are under advisement by your counsel or if you
invoke your right to remain silent. If your answer would be selfIincriminatory.
'he other side of res inter alios acta rule is found in $ection 8). 'his is the flip side of res inter
alios acta rule doctrine. And you will note that $ection 8) says, that declaration cannot be
admissible as to others e0cept that if 3edro does something or does not do anything on this
particular occasion, it does not follow that he did or did not do the same thing in another
occasion. $o, you emphasi!e again there the e0ceptions. It is an evidence, nonetheless, of
intent, knowledge, scheme, plot, habit, custom. "un ang ginagamit ng mga police investigators.
E=AMPLE' 'here is a complainant who goes to the police precinct and said ninakaw ang
kanyang cellphone. $aang parte ka ninakawan? :un ho sa kanto ng e0tramadura at espanya.
Cukuha ng file yung pulis and points out to the person. 3arang <cean 1leven.
%EARSA. R!LE
@eneral (ule: "ou can only testify on what you know. Caya nga, in connection with the general
guideline i gave you regarding %ualification, one who can perceive and perceiving can make
known his perception, that is the general rule. $omeone must personally perceive and not on
what others perceive.
5hat -s the rat-onale beh-nd the *roh-b-t-onG
'here is no opportunity on the part of the party to crossIe0amine the witness. $o, this is the
general rule. "ou only testify on what you personally know.
5hat are the e<(e*t-onsG Memor-/e
2indi na lang ,, ito. Cundi ,9 na. And what is the ,9th e0ception? #hild Witness (ule.
,. :ying :eclaration/
9. :eclaration against interest/
8. Act or declaration about pedigree/
). 4amily reputation or tradition regarding pedigree/
-. #ommon reputation/
6. (es @estae/
*. 1ntries in the ordinary course of business/
G. 1ntries in official records/
.. #ommercial lists/
,7. ?earned treatises/
,,. 'estimony or deposition at a former proceeding/ and
,9. #hild Witness (ule
Dy-ng De(larat-on
+ugbog na bugbog na yang dying declarations, in relation to the res gestae.. ust look at the
%ualifications.
In res gestae; the de(larant does not ha)e to d-e. +ut in dy-ng de(larat-on, kaya nga dying,
namatay. Cung buhay pa yan, hindi dying declaration yan. (emember that these e0ceptions to
the hearsay rule, there is a basic re%uirement of unavailability of the witness. +ecause if the
witness is available, let him testify orally. 'he de(larant must be (ons(-ous u*on *end-ng
death
ReAu-rements of dy-ng de(larat-ons'
a. 'hat death -s -mm-nent and the de(larant -s (ons(-ous of that fact/
b. 'hat the de(larat-on refers to the (ause and the surround-ng (-r(umstan(es of such
death/
c. 'hat the declaration relates to the fa(ts wh-(h the )-(t-m -s (om*etent to test-fy/
d. 'hat the declaration is offered -n a (ase where-n the de(larantHs death is sub@e(t of the
-nAu-ry Dthe victim necessarily must have diedE/
e. 'hat the statement is (om*lete -n -tself.
De(larat-on aga-nst -nterest We discussed that partly.
Ped-gree
3edigree is a kind of relationship. If one testifies about the relationship of another because it is
known by him, then that is not hearsay. If I testify, I know &r. K to be the illegitimate child of &r.
". 'hat is not hearsay. +ut when I say that it is well known in the community that &r. K is not
legally married to ". It can be about pedigree of marriage. #ommon reputation about pedigree.
Res 7estae
'wo kinds. It can either be statements during an occurrence or spontaneous articulation in the
course of an event. If you are on top of a building, and you are looking over on the road and you
see both men coming at each other armed with a bolo. 'hese are all part of the res gestae yung
reactions. &ultiple admissibility, a witness or a testimony can be admitted because of a res
gestae or a dying declaration.
1reat-ses
It refers to *ubl-(at-ons and the witness who testifies is not the author. +ecause -f the author
test-f-es on h-s own wr-t-ng; then -t -s not hearsay. It is someone else who testified on a
treaty or a publication by a wellIknown author or write in speciali!ed fields, this is considered
hearsay but admissible. +ut another %ualification, the one who testifies on that must be
6nowledgeable on the sub@e(t matter. $uppose there is a book by @erardo $icat. 2e is wellI
known 1conomist, then the one who is testifying about his book is +ernardo 5illegas, another
wellIknown economist. :efinitely, even if that is hearsay as far as the witness is concerned but
this is considered as an e0ception because it is learned treatises. Another e0ample is a doctoral
thesis. $o you t-e th-s u* w-th e<*ert w-tnesses.
Entr-es or (ommer(-al l-sts
ust go over the re%uirements of each.
1est-mony at a former *ro(eed-ng or de*os-t-on
We have e0tensively studied deposition.
OPINION R!LE
@oing back to the general formulation, one who can perceive and perceiving can make known
his perception. $o what are you suppose to testify on? What you perceive and not what you
think about what you perceive because that is already a matter of opinion. <pinions are not
allowed in testimonies.
10ceptions:
0 E<*ert 5-tness
4 Ord-nary 5-tness
a. -dent-ty of a person about whom he has ade%uate knowledge
b. handwr-t-ng with which he has sufficient familiarity
c. mental sanity of a person with whom he is sufficiently ac%uainted
An e0pert witness must testify on his e0perties. 10ample is in a case of annulment of marriage,
mandatorily, the law says that an e0pert witness must testify when the ground is 3sychological
incapacity.
An ordinary witness may testify on his opinion but limited only to 8 instances.
Do(tr-ne of -nde*endently rele)ant statement
"ou are not trying to establish the content whether it is true or not but you are only trying to
establish the fact that someone D#E told you that K went with A. As to the e0istence of the fact
and not as to the truth or veracity of the issue.
R!LE 080
5ho has the burden of *roofG
+urden of proof must first be distinguished from burden of evidence. While burden of proof does
not shift, burden of evidence shifts. +urden of proof means, the you need to establish a claim.
=ow that claim may be propounded by the plaintiff or the defendant in the case of counterclaim
in civil cases or in the case of defense on the part of the accused in criminal cases. $o burden
of proof lies thereof on the claimant. 2e who claims something must establish his claim by proof.
'here is a peculiarity of burden of proof as distinguished from burden of evidence in criminal
cases. +ecause in criminal cases, the %uantum of evidence being proof beyond reasonable
doubt, the burden is always with the prosecution. It never shifts from the beginning to the end.
What shifts is the burden of evidence. $o when the prosecution has already established its
claim that the accused killed the victim, it is incumbent upon the accused to disprove the claim.
What is the burden of evidence? 3utting forward the evidence. 'his is the literal meaning.
'hat is clear in civil cases. +ecause the plaintiff presents evidence to establish his claim Dsum of
moneyE, demand letters, contract of loan. After he has established his burden of proof, comes
now the burden of evidence. &eaning to say, who has now the burden of presenting of evidence
to disprove the proof presented by the plaintiff is now the defendant. +ut when the defendant
would like to establish now his defense Daffirmative reliefE, he has the burden of proof. 'he
defendant has to establish his proof. 'his is not burden of evidence but proof.
5hat are the two 6-nds of *resum*t-onsG
'hey are #onclusive and :isputable 3resumptions.
5hat -s a (on(lus-)e *resum*t-onG
#onclusive presumption is such kind of presumption which can never be controverted. =o
amount of evidence can destroy or overturn conclusive presumption.
5hat are the two 6-nds of (on(lus-)e *resum*t-onsG
1stoppel in pais and the title of the landlord. Caya memori!e niyo na.
5hat -s th-s esto**el -n *a-sG
When by my act, declaration, or omission, i make someone believe that such a thing is true, I
cannot deny my actuation anymore. I am conclusively presumed. I am estopped from denying
facts. A, vendor, sells his real property, consisting of ,77s%. m. lot to +. + would not want to buy
it, but A says, I have a special power of attorney because the title is not titled to A. $o + agreed.
<n that basis of that declaration, later on he cannot deny otherwise. It is estoppel in pais.
In the same kind of e0ample, we give the second kind of conclusive presumption. If A, as the
seller, says that I am going to sell this to you which I also bought from &r. K, therefore, I had a
title to the property. 'hen if +, later on, says wala ka naman palang titulo sa property. =o. + is
now bound by the claim of title of A. &alimit yang mangyari sa contract of lease. A and +
entered into a contract of lease over a parcel of land. 'hen + being the lessee, 8 years after,
reali!ed that A is really not the owner but the government. "ou cannot deny now. It must be
before the act, declaration, or omission or before they entered into a contract.
As to d-s*utable *resum*t-ons
'here are 8* disputable presumptions. "ou go over these disputable presumptions.
'he evidence willfully suppressed would be adversed if produced. 'he emphasis is based on
the ground that there are a lot of cases relative to this presumption. $o remember that this has
something to do with suppression of evidence.
And what are the reAu-s-tesG
,. 'hat the evidence suppressed is at the disposal only of the suppressing party.
9. 'hat the suppression is willful.
8. 'hat the evidence suppressed is not merely corroborative or cumulative.
). And that the suppression is not in the e0ercise of a privilege.
Letter E 'he first two are the most important re%uisites. 'hese suppression of evidence are of
any kind. (eal, documentary and even testimonial evidence is covered. $uppose it is a
prosecution for rape, and then the prosecution says, I would no longer put in the witness stand
the police investigator. And then the other party says, it is suppression of evidence because if
the evidence will be presented, it will be adverse to the prosecution. =o, the courts would say
that is not suppression of evidence because the police investigator is available to both of you.
+akit? 3wede mo namang ipresent ang police investigator by any party. 'he first re%uisite has
not been complied with because the evidence suppressed is not only at the disposal of the
suppressing party.
+ut suppose the evidence that I would like to present is 0Iray which is a medical record. I asked
for the subpoena duces tecum. 'he hospital did not produce it. 'he court sustained and said
that this is suppression of evidence.
If it is not willfully suppressed then the presumption would not apply.
Letter M 'hat official duty has been regularly performed. &araming kaso ito. Accused was
charged of selling .G7 grams of shabu in a buyIbust operation. :uring his trial, the prosecution
relied mainly on the testimony of a policeman who acted as a buyer. #an the court rely on the
presumption that official duty has been regularly performed in convicting the accused? =o.
Why? 'o determine whether there was a valid entrapment or where entrapment procedures
were undertaken in effecting the buyIbust operation, it is incumbent upon the court to make sure
that the details of the operation are clearly and ade%uately laid out, relevant, material and
competent evidence. 'he court cannot rely but must study these things.
Peo*le ) Ong 284 S$RA E4,,2F If you want to apply this presumption, you have to outline the
rules and regulations governing performance of such obligation. If you donLt outline, there is no
presumption that it was regularly performed. $o it was more of a defense. If there is a sweeping
statement that there is a presumption, then establish that the following are the functions, for
e0ample a clerk of court in the issuance of a writ of e0ecution. <utline first the functions of a
clerk of court, kumbaga ba e is it the duty of the clerk of court or is it the judge.
Letter 5 "ou have studied this already. 'he presumption of death. Amendment, if there is
presumption of death. 10ample: where a mother files damages against an airline, where she
contends that her son died in the crash. 'he defense of the airline was that no body was
recovered. $o the mother also filed for presumption of death. 'he $#, there is a provision for
the presumption of death. $ince the death only happened last year then she must wait for )
years before she can apply for the presumption of death.
ILm talking of presumption ha. +ut if you have the body already, then this presumption would not
apply.
Letter Double A EaaF 'hat a man and woman deporting themselves as husband and wife had
entered into a lawful contract of marriage.
Letter Double B EbbF 'hat property ac%uired by a man and a woman who are capacitated to
marry each other and who live e0clusively each other as husband and wife without the benefit of
marriage or under a void marriage has been obtained by their joint efforts, work or industry.
Letter Double : E@@F $uccession. When two persons perish in the same calamity.
,. +oth are under the age of ,- years I older
9. +oth are over the age of 67 years I younger
8. <ne is under ,- and the other is above 67 I former
). <ne is over ,- and the other is under 67, different se0 I male
-. <ne is over ,- and the other is under 67, same se0 I older
6. <ne is under ,- or over 67 and the other between those ages I latter
R!LE 084 D PRESEN1A1ION O9 EVIDEN$E
'o have a birdLs eye view, you divide it into three parts:
,. 10amination of witness I $ection ,I,G
9. Authentication and proof of documents I $ections ,. I 88
8. <ffer and objection I $ections 8) I )7
10amination of a witness presented in a trial or hearing shall be done in o*en (ourt and under
oath or aff-rmat-on.
'he o**os-t-on of o*en (ourt -s -n (hamber.
+ut all these e0aminations of witness is in the presence of a judge whether in open court or in
chambers.
'he entire proceedings must be recorded. 'he official record is what you call the trans(r-*t of
stenogra*h-( notes. And the contents of the stenographic notes is prima facie correct.
4or practical purposes, when you are now trying a case, in the ne0t hearing, be sure that you
have already the copy of the transcript of the last hearing. Why? 'he only time to correct errors
in the transcript of the stenographic notes is before the trial of the case. If you donLt correct the
transcript of the stenographic notes, the basis of the judgment would always be the transcript of
the stenographic notes. In fact, a judge who did not hear the case at all can still render judgment
solely based on the transcript of the stenogrpahic notes. +efore the ,..* (ules of #ourt, some
courts are not courts of record, like the inferior courts. Ander the present rules, all courts are
already courts of record. 2ow about %uasiIjudicial agencies, are they courts of record? "es they
are at present even though the rules do not so provide but as a matter of practice.
Se(t-on 2 Order -n the e<am-nat-on of an -nd-)-dual w-tness
We distinguished that from order in the presentation of evidence which we under (ule 87
$ection - and (ule ,,., $ection ,,. $o in #ivil 3rocedure, the order of trial is found in $ection -
of (ule 87. In criminal cases, $ection ,, of (ule ,,.. 'hat is order of trial. In the order of trial, in
criminal cases, we start with the prosecutionLs evidence. 'hen accusedLs evidence. In civil
cases, we start with plaintiffLs evidence. 'hen followed by defendantLs evidence. And followed by
8rd party, )th party defendant and the intervenor. +ut here it is the order of e0amination. :irect,
#ross, (eI:irect, and then (eI#ross.
Is there a re reDd-re(t or re reD(ross e<am-nat-onG
'echnically there is none. +ut in practice you ask for additional reIdirect e0amination or
additional reIcross e0amination.
In direct e0amination, you can have an e0amination in chief. "our crossIe0amination is limited to
the subject matter of the direct. 'he reIdirect is limited to the cross. 'hen the reIcross is limited
to the reIdirect.
5hat ha**ens now to the test-mony of the w-tness whose (rossDe<am-nat-on was not
underta6en for one reason or the other; should -t be deleted from the re(ord or rema-nG
It all depends upon the reason for the failure to crossIe0amine. If after the direct e0amination,
the defense counsel said your honor I have another hearing in another court, so i would not
undertake my crossIe0amination. I move for continuance. +y ne0t week i will undertake my
crossIe0amination. It was granted. 8 days after the w-tness d-ed. $o what was taken under the
stenographic notes was only the direct e0amination without reIcross. 2ere comes now the
defense counsel, "our honor i move that the direct testimony be stricken from the record for
failure or without giving the chance to crossIe0amine. 'he court should deny it. It should remain
in the records because the motion for continuance was on the part of the defendant. If it was
due to the plaintiffLs counsel, then the e0amination may be stricken off the record. 10ample: after
the direct e0amination, the defenseLs counsel undertook to crossIe0amine. If the continuance
was moved by the plaintiffLs counsel.
Se(t-on 0, Lead-ng and M-slead-ng &uest-ons
A leading %uestion is not allowed. (ationale: +ecause you already suggest the answer. $o
parang ikaw na ang sumasagot din. 'hey say that ordinarily, %uestions answerable by yes or no
are leading %uestions. +ut take note of e0ceptions.
,. Prel-m-nary matters I e0ample, mr. witness are you the plaintiff in this case?
9. On (ross e<am-nat-on I (ationale: because katunggali yan. 2e will never answer %uestions
in your favor.
8. Of an unw-ll-ng or host-le w-tness and witness who is an adverse party I same reason.
+ut you have to distinguish an adverse witness from a hostile or unwilling witness. As to adverse
witness, you donLt have to %ualify him because that can be taken judicial notice of by the court.
+ut if you present an unwilling witness or a hostile witness, you have to lay down the predicate.
"ou have to establish that he is unwilling or a hostile witness.
). D-ff-(ulty -n gett-ng d-re(t and -ntell-g-ble answers from a w-tness I leading %uestion is
allowed on a child.
A m-slead-ng Auest-on -s one wh-(h assumes as true a fa(t not yet test-f-ed to by the
w-tness; or (ontrary to that wh-(h he has *re)-ously stated. It is not allowed. In all
-nstan(es; a m-slead-ng Auest-on -s not allowed. +ecause you are deceitful, you prevaricate
Dbeat around the bushE actually. "ou intend to tell a lie.
E<am*le' &r. Witness you stated that on such a date you were in that particular place.
<bjection your honor, there was no testimony to that effect. 'hat is misleading. Another
e0ample: <r he testified already. <n april -, ,..-, i was watching '5. 'hen during cross
e0amination he asked, &r. Witness you testified that on April -, ,..- you were watching the
basketball game. &isleading %uestion.
Se(t-on 00 D IMPEA$%MEN1 O9 ADVERSE PAR1.HS 5I1NESS
2ow do you impeach?
,. +y contradictory evidence
9. +y evidence that his general reputation for truth, honesty, or integrity is bad
8. +y evidence that he has made at other times statements inconsistent with his present
testimony.
5hat -s the )ery (ommon way of -m*ea(hmentG
#ontradictory evidence. (ecall your deposition. 'he deposition of a witness may be used
against him.
&ahirap ang 9nd. <rdinarily, you cannot establish the bad character of the witness unless it is
testified to or is the subject matter or issue, otherwise you cannot do that.
Se(t-on 0" E<(lus-on and Se*arat-on of 5-tnesses
'his is an e0ception to the general right to a public, speedy and impartial trial. 'his is e0ception.
+ut if you are a party to the case, you can never be e0cluded.
Se(t-on 0+ 5hen w-tnesses may refer to memorandum
'here are two doctrines in this section.
Present Re(olle(t-on Re)-)ed and Past Re(olle(t-on Re(orded
7eneral Rule -s that you test-fy only on what you *ersonally 6now; *er(e-)e on your own
and w-thout 6od-go.
10ception: this section.
E<am*le' $uppose a witness, on his way home, may hinoholdap. 3agdating niya sa bahay,
since he has the habit of writing a diary, he wrote down what he witnessed from the holdIup. 4or
one reason or the other, he was asked to testify. 'hen he said, I recall that I witness an occasion
of a holdIup, but i cannot recall really the e0act incident. 'he counsel would say, your honor we
are invoking the doctrine on present recollection revived, may he refer to a memorandum. 'he
court may allow that under this rule.
What is not allowed is to have the diary marked in evidence as testimonial evidence. =ever, that
is not allowed. $o he testifies on his own, the diary is used only to refresh his memory. It is not
evidence in itself but the evidence here is testimonial and not documentary.
'hat is *resent re(olle(t-on re)-)ed.
2ave you come across Estrada ) Des-erto. 'he Angara :iary. 'his is a present recollection
revived. A new term is coined, Adoptive 1vidence.
5hat -s Past re(olle(t-on re(ordedG
An e0ample of this would be letLs say a medico legal case is being prosecuted. 'he medico legal
officer has a lot of cases already e0amined, thus when he is put to the witness stand, he may be
allowed to consult with his e0amination records or autopsy records of &r. K. =ow that can be
marked in evidence. +ecause that is an entry of official records in hearsay rule. 'hat can be
considered. #ertification from a government agency is hearsay in itself but it is an e0ception to
the hearsay rule.
$econd part of Rule 084 I Authent-(at-on and *roof of do(uments
$lasses of do(uments'
3ublic or private
If you are as6ed what are *ubl-( do(uments
'here is no definition. 'here is but an enumeration. $o enumerate public documents.
If you are as6ed what are *r-)ate do(uments
"our correct answer is that which is not public. 'ama yun by e0clusion. 'he definition is all other
writings are private.
5hat are *ubl-( do(umentsG
,. 'he written official acts or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the 3hilippines or of a foreign
country/
Written official act I 1.<., (ecords of laws passed in congress. 'ake note of this foreign country
when we talked mandatory judicial notice. As a general rule, our courts cannot take judicial
notice of foreign laws. 'hat must be established by evidence.
9. :ocuments acknowledged before a notary public e0cept last wills and testaments/ and
An affidavit is not contemplated here. +ecause it must be acknowledged. An affidavit is only
subscribed and sworn to, or jurat. What is acknowledged? A deed of conveyance or a deed of
sale. When you find an acknowledgment in the document, it does not re%uire authentication
because that is a public document.
10cept last wills and testaments because under the laws on succession, there is a different way
of establishing the authenticity and due e0ecution of a last will and testament. 8 instrumental
witness.
8. 3ublic records, kept in the 3hilippines, of private documents re%uired by law to be
entered therein.
+irth certificates when submitted to the =ational #ensus or the #ivil (egistrar. &arriage
contract. :eath #ertificate.
NO1E' :o you recall when we studied correction of entries under (ule ,7G. ,- items. All other
writings are private. $o pag private writing lang ang dapat iauthenticate.
I told you the 6 re%uirements for the admissibility of evidence. "ung isa ay authentication. And
e0ception to that would be public documents because it need not be authenticated.
%ow do you authent-(ate *r-)ate do(umentsG ESe(t-on 4,F
,. +y anyone who saw the document e0ecuted.
9. +y evidence of the genuineness of the signature or handwriting of the maker.
8. Any other private document need only be identified as that which it is claimed to be.
Ano ba ang ibig sabihin nito? "ung mga hindi material. "ou need not authenticate it anymore. If
you want to establish, for e0ample, that on your way home you got a letter from the mailbo0
which happens to be a love letter.
Se(t-on 40 E)-den(e of Authent-(-ty Not Ne(essary
,. It is more than 87 years old/
9. It is found in the proper custody as its nature re%uires/ and
8. It is unblemished by any alterations or by any circumstance of suspicion.
E<am*le' birth certificate. $ino pa ba ang magtatago ng birth certificate kung hindi ikaw din
lang. It must be unblemished by any alterations or by any circumstance of suspicion.
Se(t-on 4# %ow :ud-(-al Re(ord -m*ea(hed
,. +y evidence of want of jurisdiction in the court or judicial officer/
9. #ollusion between the parties/ or
8. 4raud in the party offering the record, in respect to the proceedings.
3lease connect this with Se(t-on 23 of Rule 8# on 9ore-gn :udgments because the way to
impeach it is also by lack of jurisdiction, collusion or fraud.
'hird 3art I Offer and Ob@e(t-on
'he courts shall not consider any evidence which has not been formally offered.
So what are the reAu-rements aga-n for adm-ss-b-l-tyG
(elevancy, competency, identification, marking, authentication, offer.
5hen do you ma6e an offerG
It depends.
,. (eal evidence I you offer it right there and then.
9. :ocumentary evidence I you offer it before you rest your case or presentation of evidence.
8. 'estimonial evidence I you offer it before the witness testifies.
$o you call on a party, an ?(A case, cancellation of adverse claim. 'he witness is the petitioner
himself. "ou lay down the foundations before the testimony be taken. "our honor, the witness is
called upon to establish the truth that he is the petitioner of the case, that he is the owner of the
'#', that such title carries an encumbrance or annotation of adverse claim, and that he seeks to
have it cancelled before this court and that she will identify documents relative to this case. "an
ang formal offer of testimonial evidence.
All jurisprudence says, as a general rule, that when you donLt make an offer the testimony is
inadmissible. +ut latest jurisprudence says that even if you did not make an offer at the
beginning of your testimonial evidence that can be corrected. 'hatLs the latest jurisprudence
now. It can be corrected by making the offer at the middle or after. $o the $# is not strict as to
the time. +ut the rule says that you must offer it before the testimonial evidence.
In case of documentary evidence, you make the offer in writing, as a general rule. "ou can only
make it orally if the court allows it, if there are only few documentary evidences.
"ou make the objections during the offer. In the case of the testimonial, after the offer. In the
case of documentary, you make objections upon receipt of a copy of the formal offer of
evidence.
'he objections referred to here is not only regarding objections to the offer of evidence. :uring
the testimony or in the course of the proceeding, you can also make objections.
%ow many 6-nds of ob@e(t-ons are thereG
$ubstantial and 4ormal objection
5hat -s substant-al ob@e(t-onG
It goes into the substance of what is being objected to.
5hat -s formal ob@e(t-onG
It only goes into the form, the way it is at.
<bjection to the lead-ng Auest-on -s only a formal ob@e(t-on
Se(t-on 2, 1ender of e<(luded e)-den(e
5hat -s *roffer of e)-den(eG
It is also known as offer of proof. +ut the correct term is tender of e0cluded evidence.
When a witness has been declared as incompetent witness, the adverse counsel may ask for
the proffer of evidence. If the witness were allowed to testify, he would have established the
following. $o in the case of appeal, the appellate court will see and determine the grounds why it
was objected to and may reverse the trial court.
R!LE 088 5EI7%1 AND S!99I$IEN$. O9 EVIDEN$E
Fuantum of evidence:
,. O)erwhelm-ng e)-den(e J strongest, that which can never be contradicted.
9. Proof beyond reasonable doubt I this is necessary in criminal cases, it does not absolute
certainty but only moral certainty. &oral certainty is that which an unprejudiced mind would
believe that the thing or that that e0ist. 'hat the accused is guilty thereof based on the
circumstances or evidence.
8. Pre*onderan(e of e)-den(e I that which has heavier evidence wins. 'he graphical
illustration is the lady justice with a scale. 3ag balanced yun, there is no preponderance. "ou
apply the e%uipoise doctrine. 'his doctrine is if the scale is balanced, status %uo. :efendant
wins. Accused ac%uitted.
+ut preponderance means that one side is weightier than the other side. 2ow do you
determine? It is not a matter of number or nature of testimony, but it is a matter of many
(-r(umstan(es lum*ed together, credibility of the witness, the nature of the testimonies.
urisprudence has given us the basic doctrine, which is that the witness must not only be
credible but his testimony be credible as well.
E<am*le, if you put on the witness stand a priest to testify, he is a very credible witness. +ut
suppose the priest testified and said that he was on the moon on that date. 'hen his testimony
is incredible. <r you took someone who is an e0Iconvict. 2e testified in a very credible manner.
'he e0Iconvict is not a credible witness but had a credible testimony.
). Substant-al e)-den(e I clear and convincing evidence. 'his is necessary only in
administrative hearing or procedure. ?abor cases for e0ample. It is similar to probable cause.
'hat which an unprejudiced mind would consider true based on the facts and circumstances
on the evidence presented based on those facts and circumstances.
-. Probable (ause I is the %uantum of evidence also, that is the re%uired in preliminary
investigations and preliminary e0amination.
6. Pr-ma 9a(-e E)-den(e I that evidence which is not so controverted becomes conclusive.
#an prima facie evidence convict? "es, solely by it, if the evidence was never controverted, it
becomes conclusive.
*. Iota of e)-den(e I is one circumstantial evidence. ?ightest form of evidence. It can never
convict. +ecause under the rule, there must be more than one circumstance. And the
conclusion arrived at must have been established. And that these several circumstances
establish only one conclusion.
Peo*le ) Ador I )89 $#(A une ,), 977)
@anito yun, in convicting an accused for murder, the trial court relied on the circumstances
namely:
,. 2e was seen fleeing from the crime/
9. 'hat he allegedly surrendered a hand gun/
8. 'hat the slug taken from the head of the victim was fired from the gun surrendered/
). 'hat the victim made a dying declaration identifying him/ and
-. 'hat the paraffin tests show that he was positive for gun powder.
Is the (on)-(t-on *ro*erG
'he $# said no. 4or circumstantial evidence to suffice there must be more than one
circumstance. 'he facts from which the inferences derived are proven. 'hey were not all proven.
'he combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. $o the second and the third re%uirements were not complied with. Accordingly, the
following are the guidelines in appreciating circumstantial evidence, so please go over it.
"ou distinguish that from Peo*le ) Mansueto 886 $#(A *,- uly 8,, 9776, #hief ustice
:avide considered the circumstantial evidence valid to convict the accused. $o tingnan niyo
diperensya dun in these two cases.
$ection *.
5hat -s e)-den(e on mot-onG
When a motion is based on facts not appearing of record the court may hear the matter on
affidavits or depositions presented by the respective parties, but the court may direct that the
matters be heard wholly or partly on oral testimony or depositions.
5hat -s a good e<am*le of th-sG
'he one we were discussing about sear(h warrants. +ecause if you file a motion to %uash the
search warrant in a court which did not issue the search warrant Dlike the case of Washington
:istillers v. #AE then it is evidence on motion. In other words, the basis of the motion are not
parts of the records, so you have to establish those parts.