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SPECIAL PROCEEDINGS

Bar Review Guide 2017


Justice Magdangal M. de Leon

1. Distinction between civil action and special proceedings

a. Civil action – action by which a party sues another for enforcement or


protection of a right, or prevention or redress of a wrong.

b. Special proceeding – remedy by which a party seeks to establish a


status, right or a particular fact.

 Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as
one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong while a special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is then decisively clear
that the declaration of heirship can be made only in a special proceeding inasmuch as
the petitioners here are seeking the establishment of a status or right. (Heirs of Ypon
vs. Ricafrente, G.R. No. 198680, July 8, 2013)

2. Nature of special proceedings – initially non-adversarial in nature; in the course of


proceedings, there may be oppositors.

3. Generally, in special proceedings, formal pleadings and a hearing may be dispensed


with, and the remedy [is] granted upon mere application or motion. However, a special
proceeding is not always summary. The procedure laid down in Rule 108 is not a
summary proceeding per se. (Republic vs. Olaybar, G.R. No. 189538, February 10,
2014)

4. A petition for recognition of foreign judgment seeks to establish a status, right or


particular fact. (Fujki vs. Marinay, G.R. No. 196049, June 26, 2013) - Petition was
filed by Fujiki to recognize the Japanese Family Court judgment nullifying the marriage
between Marinay and Maekara on the ground of bigamy because the judgment
concerns his civil status as married to Marinay. He has the personality to file a petition
under Rule 108 to cancel the entry of marriage between Marinay and Maekara in the
civil registry on the basis of the decree of the Japanese Family Court.

GENERAL PROVISION

Rule 72
Subject matter and Applicability
of General Rules

Sec. 1. Subject matter of special proceedings.

1. Rules 73-75 )
2. Rules 76-81 ) Settlement of Estate of
3. Rules 82-86 ) Deceased Persons
4. Rules 87-90 )
5. Rule 91 Escheat
6. A.M. No. 03-02-05-SC Guardianship of Minors
(May 1, 2003)
7. Rules 92-97 Guardianship of Incompetents
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8. Rule 98 Trustees
9. A.M. No. 02-06-02-SC Adoption and Custody of Minors
(August 22, 2002)
10. Rule 101 Hospitalization of Insane Persons
11. Rule 102 Habeas Corpus
12. Rule 103 Change of Name
13. Rule 104 Voluntary Dissolution of
Corporations
(Deemed repealed by the
Corporation Code,
Title XIV, Secs. 117-122)
14. Rule 105 Judicial Approval of Voluntary
Recognition of Minor
Natural Children
15. Rule 106 Constitution of Family Home
(Deemed repealed by the
Family Code, Arts. 252-253)
16. Rule 107 Absentees
17. Rule 108 Cancellation or Correction of
Entries
18. Rule 109 Appeals in Special Proceedings

 Special Proceedings Under Various Laws

1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)


- declaration of absolute nullity of void marriages and annulment of voidable
marriages
- legal separation
- provisional orders on support, custody of minor children and administration of
common property
- violence against women and their children and protection orders

3. Proceedings under: Child & Youth Welfare Code (PD 1083)


Child Abuse Act (RA 7610)
Child Employment Act (RA 7658)
- declaration of status as abandoned, dependent or neglected children
- voluntary or involuntary commitment of children
- suspension, termination or restoration of parental authority

4. Domestic and Inter-country adoption


5. Petition for corporate rehabilitation
6. Petition for writ of amparo
7. Petition for writ of habeas data
8. Arbitration

 Rules in civil actions applicable to special proceedings

Sec. 2. Applicability of rules of civil actions.


In the absence of special rules, the rules provided for in ordinary actions shall
be, as far as practicable, applicable to special proceedings.

1. Rule 17 governing dismissal of actions by plaintiff in civil actions


(Ventura vs. Ventura, Sept. 24, 1969)
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2. Rules regarding:
- preparation, filing and service of applications, motions, and other papers
- omnibus motions
- subpoena
- computation of time
- motion for new trial
- discovery
- trial before commissioners
- procedure of appeal (Fernandez vs. Maravilla, 10 SCRA 589 [1964])

3. Rule 33 regarding judgment on demurrer to evidence


(Matute vs. CA, 26 SCRA 768 [1969])

In the absence of special provisions, rules in ordinary actions may be applied in special
proceedings as much as possible and where doing so would not pose an obstacle to said
proceedings. Nowhere in the Rules of Court does it categorically say that rules in ordinary
actions are inapplicable or merely suppletory to special proceedings. Provisions of the Rules
of Court requiring a certification of non-forum shopping for complaints and initiatory pleadings,
a written explanation for non-personal service and filing, and the payment of filing fees for
money claims against an estate would not in any way obstruct probate proceedings, thus, they
are applicable to special proceedings such as the settlement of the estate of a deceased
person. (Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)

A. Settlement of Estate of Deceased Persons, Venue and


Process

 Art. 777, Civil Code – rights to succession are transmitted from the moment of death
of the decedent.

This is only from the substantive aspect. From the PROCEDURAL aspect, there are
certain procedures that must be observed before actual transmission of the property, but rights
of the heirs retroact from the moment of death.

The right of respondent’s predecessors over the subject property is more than sufficient
to uphold respondent’s right to possession over the same. Respondent’s right to the property
was vested in her along with her siblings from the moment of their father’s death. As heir,
respondent had the right to the possession of the property, which is one of the attributes of
ownership. Such rights are enforced and protected from encroachments made or attempted
before the judicial declaration since respondent acquired hereditary rights even before judicial
declaration in testate or intestate proceedings.(Bunyi versus Factor. G.R. No. 172547, June
30, 2009)

Article 777 of the Civil Code declares that the successional rights are transmitted from
the moment of death of the decedent. Accordingly, upon Anastacia’s death, her children
acquired legal title to her estate (which title includes her shareholdings in Zenith), and they are,
prior to the estate’s partition, deemed co-owners thereof. This status as co-owners, however,
does not immediately and necessarily make them stockholders of the corporation. Unless and
until there is compliance with Section 63 of the Corporation Code on the manner of transferring
shares, the heirs do not become registered stockholders of the corporation. (Reyes vs. RTC of
Makati, Branch 142, G.R. No. 165744, August 11, 2008)
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1. Which court has jurisdiction

 Settlement of estate

The determination of which court exercises jurisdiction over matters of probate depends
upon the GROSS VALUE of the estate of the decedent. Rule 73, Sec. 1 is deemed amended
by BP 129, as amended by RA 7691 (Lim vs. CA, G.R. No. 124715, January 24, 2000]),
Hence, the court may be the MTC or RTC. If more than P300,00.00/P400,00.00 – RTC.

Kinds of settlement based on the FORM of settlement:

1. Extrajudicial settlement (Rule 74, Sec. 1)


2. Summary settlement of estates of small value (Rule 74, Sec. 2)
3. Judicial settlement through letters testamentary or letters of administration with or
without the will annexed (Rules 73, 75-90)

2. Venue in judicial settlement of estates

Rule 73
VENUE AND PROCESS

Sec. 1. Where estate of deceased persons settled.

1. If residing in Philippines at time of death, whether citizen or not, court of PLACE OF


RESIDENCE.

2. If residing in a foreign country – court of ANY PLACE WHERE HE HAD ESTATE.

3. Venue may be assailed only when the estate proceedings are brought up on
appeal or if a plain reading of the records of the case will immediately show that
venue was improperly laid. However, the fact that the estate proceedings are
initiated neither in the decedent’s residence nor where the decedent’s estate is
located is not jurisdictional and may be waived if not raised Uriarte v. Court of
First Instance, G.R. Nos. L-21938-39, May 29, 1970).

4. Court first taking cognizance of settlement of estate of a decedent shall exercise


jurisdiction TO THE EXCLUSION of all other courts.
- subject to preferential jurisdiction of court where TESTATE proceedings are filed.

5. Jurisdiction assumed by a court depending on


- place of residence of decedent, or
- location of estate
shall NOT BE CONTESTED in a suit or proceeding,
 except in an appeal from that court, or
 when want of jurisdiction appears in the record

 NOTES:

1. Term “resides” refers to “actual or physical” residence, as distinguished from “legal


residence” or “domicile.”
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There is a distinction between “residence” for purposes of election laws and


“residence” for purposes of fixing the venue of actions. In election cases, “residence”
and “domicile” are treated as synonymous terms, that is, the fixed permanent residence
to which when absent, one has the intention of returning. However, for purposes of
fixing venue under the Rules of Court, the “residence” of a person is his personal,
actual or physical habitation, or actual residence or place of abode, which may not
necessarily be his legal residence or domicile provided he resides therein with
continuity and consistency. Hence, it is possible that a person may have his residence
in one place and domicile in another. (San Luis vs. San Luis, G.R. No. 133743,
February 6, 2007)

2. Sec. 1, Rule 73 prescribing court where decedent’s estate shall be settled – (a) place of
residence or (b) where his estate is located, relates to VENUE and not jurisdiction.

3. Where two proceedings filed, one intestate, the other testate – illustrative cases on
which courts should have “jurisdiction”:

 ROBERTS VS. LEONIDAS (G.R.No. L-55509, April 27, 1984) – intestate in CFI
Manila Branch 20, testate (reprobate) in CFI Manila, Branch 38. Ruling: priority to
second branch of same court (CFI Manila). a. Probate of will MANDATORY-
anomalous that estate of person who died testate should be settled in intestate
proceedings. b. Intestate case should be CONSOLIDATED with testate proceeding
- Judge assigned to testate proceeding should continue hearing the two cases.

 URIARTE VS. CFI OF NEGROS OCC. (G.R. Nos. L-21938-39, May 29, 1970) –
intestate in Negros court, testate in Manila court. Ruling: priority to first court.
Petitioner in Manila court should have submitted will for probate to Negros court,
either in separate special proceeding or motion. Testate proceeding takes
precedence over intestate proceeding. If in the course of intestate proceeding, it is
found that decedent left a will, proceeding for probate of will should REPLACE
intestate proceeding.

 CUENCO VS. CA (G.R. No.L-24742, October 26, 1973) – intestate in Cebu


court, testate in QC court. Ruling: priority to second court. First court, upon learning
that petition for probate has been presented in another court, may DECLINE TO
TAKE COGNIZANCE of and HOLD IN ABEYANCE petition before it, and instead
DEFER to second court. If the will is admitted to probate, it will definitely DECLINE
to take cognizance.

Explain difference between Uriarte and Cuenco rulings – In Uriarte, there was showing
that petitioner in probate proceeding knew before filing of petition in Manila that there was
already intestate proceeding in Negros.

Sec. 2. Where estate settled upon dissolution of marriage

A creditor cannot sue surviving spouse of a decedent in an ordinary proceeding for


collection of sum of money chargeable against the conjugal property. Proper remedy – file a
claim in the settlement of estate of the decedent. Reason: upon death of one spouse, powers
of administration of surviving spouse ceases and is passed to administrator appointed by
probate court in the settlement proceedings. (Alipio vs. CA, 341 SCRA 441 [2000])

PRESUMPTION OF DEATH

Sec. 4. For purposes of settlement of his estate, a person shall be


presumed dead if absent and unheard of for the periods fixed in the Civil
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Code. If the absentee turns out to be alive, he shall be entitled to the balance of
his estate after payment of all his debts. The balance may be recovered by
motion in the same proceeding.

Under the Civil Code, absence of seven years, it being unknown whether or not the absentee
lives, is sufficient for the presumption of death to arise for all purposes except for succession.
(Article 390, Civil Code)

General Rule - A person is dead for the purpose of settling his estate if he has been missing
for ten (10) years. (Article 390, Civil Code )

Exception - However, if the absentee disappeared after the age of 75 years, an absence of
five (5) years is sufficient for the opening of succession.

The Following Persons Would be Considered Absent Even For the Purpose of Opening
Succession After Just Four (4) Years: (Article 391, Civil Code)

1. A person on board a vessel lost during a sea voyage, or an airplane which is missing.
2. A person in the armed forces who has taken part in war.
3. A person who has been in danger of death under other circumstances.

General Rule - No Independent action for a declaration of presumptive death is allowed.

Exception - The need for a declaration of presumptive death for purposes of remarriage
(Article 41 of the Family Code)

3. Extent of jurisdiction of probate court

 Probate court is of limited jurisdiction

1. Probate court cannot adjudicate or determine title to properties claimed to be a


part of the estate and equally claimed as belonging to outside parties.

2. It can only determine whether or not they should be included in the inventory or
list of properties to be administered by the administrator.

3. Probate court can only pass upon questions of title provisionally for the
purpose of determining whether a certain property should or should not be
included in the inventory.

4. Parties have to resort to an ordinary action for final determination of conflicting


claims of title.

CASES: Jardeleza vs. Melecio, G.R. No. 167975, June 17, 2015; Vda. de Rodriguez vs. CA,
91 SCRA 540; Pastor vs. CA, 122 SCRA 885; Pereira vs. CA, 174 SCRA 154; De Leon vs.
Court of Appeals, G.R. No. 128781, August 6, 2002

 Separate civil action for quieting of title - where issue of ownership of properties
excluded from the inventory is finally determined (Pobre vs. Gonong, 148 SCRA 553
[1987]).

EXCEPTION:

Although generally, a probate court may not decide a question of title or ownership, yet if
a. the interested parties are all heirs, OR
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b. the question is one of collation or advancement, OR


c. the parties consent to the assumption of jurisdiction by the probate court AND
d. the rights of third parties are not impaired,
the probate court is competent to decide the question of ownership (Aranas v. Mercado, G.R.
No. 156407. January 12, 2014 [LPB]; Coca vs. Borromeo, G.R. No. L-29545 January 31,
1978)

With consent of all the parties, without prejudice to third persons (Trinidad vs. CA, 202 SCRA
106 [1991]).

4. Powers and duties of probate court

 However, the probate court has jurisdiction to (a) determine heirs – separate action for
declaration of heirs not proper (Solivio vs. CA, G.R. No. 83484 February 12, 1990) and
(b) distribute estate.

 It is within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication; to determine who
are the heirs of the decedent; the recognition of a natural child; the status of a woman
claiming to be the legal wife of the decedent; the legality of disinheritance of an heir by
the testator; and to pass upon the validity of a waiver of hereditary rights (Romero vs.
Court of Appeals, G.R. No. 188921, April 18, 2012)

 Petitioners alleged that they are the lawful heirs of Magdaleno and based on the
same, prayed that the Affidavit of Self-Adjudication executed by Gaudioso be
declared null and void and that the transfer certificates of title issued in the latter’s
favor be cancelled. While the foregoing allegations, if admitted to be true, would
consequently warrant the reliefs sought for in the said complaint, the rule that the
determination of a decedent’s lawful heirs should be made in the corresponding
special proceeding precludes the RTC, in an ordinary action for cancellation of title
and reconveyance, from granting the same. By way of exception, the need to
institute a separate special proceeding for the determination of heirship may be
dispensed with for the sake of practicality, as when the parties in the civil case had
voluntarily submitted the issue to the trial court and already presented their
evidence regarding the issue of heirship, and the RTC had consequently rendered
judgment thereon, or when a special proceeding had been instituted but had been
finally closed and terminated, and hence, cannot be re-opened. (Heirs of Ypon vs.
Ricafrente, G.R. No. 198680, July 8, 2013)

 Matters relating to the rights of filiation and heirship must be ventilated in the proper
probate court in a special proceeding instituted precisely for the purpose of determining
such rights. ( Joaquino vs. Reyes, G.R. No. 154645, July 13, 2004, 434 SCRA 260).

 Questions as to who are the heirs of the decedent, proof of filiation of illegitimate
children and the determination of the estate of the latter and claims thereto should be
ventilated in the proper probate court or in a special proceeding instituted for the
purpose and cannot be adjudicated in the instant ordinary civil action which is for
recovery of ownership and possession. ( Agapay vs. Palang, G.R. No. 116668, July 28,
1997)

 There appears to be only one parcel of land being claimed by the contending
parties as their inheritance from Juan Gabatan. It would be more practical to
dispense with a separate special proceeding for the determination of the status
of respondent as the sole heir of Juan Gabatan, specially in light of the fact that the
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parties to Civil Case No. 89-092, had voluntarily submitted the issue to the RTC and
already presented their evidence regarding the issue of heirship in these proceeding .
(Gabatan vs. Court of Appeals, G.R. No. 150206, March 13, 2009)

 The jurisdiction of the probate court extends to matters incidental or collateral to the
settlement and distribution of the estate, such as the determination of the status of
each heir and whether the property in the inventory is conjugal or exclusive property of
the deceased spouse. (Agtarap vs. Agtarap, G.R. No. 177099, June 8, 2011)

 In the exercise of probate jurisdiction. the court may issue warrants and process
necessary to compel the attendance of witnesses or to carry into effect their orders
and judgments, and all other powers granted to them by law (Rule 73, Sec. 3).

.
B. Summary Settlement of Estates

1. Extrajudicial settlement by agreement between heirs, when


allowed

Rule 74, Sec. 1. Extrajudicial settlement by agreement between the heirs

 REQUISITES OF EXTRAJUDICIAL SETTLEMENT

1. Decedent dies intestate


2. No outstanding debts at time of settlement*
3. Heirs all of legal age or minors represented by judicial guardians or legal
representatives
4. Settlement made in public instrument duly filed with Register of Deeds
5. Publication in newspaper of general circulation in the province once a week for
3 consecutive weeks
6. Bond equivalent to value of personal property posted with Register of Deeds**

* Presumed that decedent left no debts if no creditor filed petition for letters of administration
within 2 years after death of decedent.

** Bond required only when personal property is involved in the extrajudicial settlement. Real
estate is subject to lien in favor of creditors, heirs or other persons for 2 years from distribution
of estate, notwithstanding any transfers of real estate that may have been made (Sec. 3, Rule
74).

 RATIONALE for Sec. 1, Rule 74 – when person dies without having obligations
to be paid, his heirs are not bound to submit property for judicial administration, which
is always long and costly (Utulo vs. Pasion, 66 Phil. 302).

 IF HEIRS DISAGREE – ordinary action for partition.

 IF ONLY ONE HEIR – affidavit of self-adjudication.

 FILING OF EXTRAJUDICIAL SETTLEMENT WITH REGISTER OF DEEDS


REQUIRED – whether by public instrument, affidavit, stipulation in pending
action for partition.
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 Lack of registration of extrajudicial settlement does not affect its validity


when there are no creditors or rights of creditors are not involved (Vda. de Reyes
vs. CA, 199 SCRA 646 (1991).

 DESPITE ITS PUBLICATION, extrajudicial settlement NOT BINDING on any


person who has not participated therein or who had no notice thereof (Sec.
1, last par., Rule 74; Sampilo vs. CA, 101 Phil. 71 [1958]).

 Extrajudicial settlement – on whom binding


Binding only on those who participated or had notice of the settlement.
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule
plainly states, however, that persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby. The publication of the settlement
does not constitute constructive notice to the heirs who had no knowledge or did not take
part in it because the same was notice after the fact of execution. (Cua vs. Vargas, G.R. No.
156536, October 31, 2006)

The publication of the settlement does not constitute constructive notice to the
heirs who had no knowledge or did not take part in it because the same was notice
after the fact of execution. The requirement of publication is geared for the protection of
creditors and was never intended to deprive heirs of their lawful participation in the
decedent’s estate. (Spouses Tiro vs. Heirs of Cuyos, G.R. No. 161220, July 30, 2008)

2. Two-year prescriptive period

 Action to annul deed of extrajudicial settlement – Sec. 4, Rule 74 provides a two


year prescriptive period (1) to persons who have participated or taken part or had
notice of the extrajudicial partition, and (2) when the provisions of Sec. 1 of Rule 74
have been strictly complied with – that all persons or heirs of the decedent have
taken part in the extrajudicial settlement or are represented by themselves or through
guardians (Pedrosa vs. CA, 353 SCRA 620 [2001]).

3. Affidavit of self-adjudication by sole heir

Adjudication by an heir of the decedent’s entire estate to himself by means of an


affidavit is allowed only if he is the sole heir to the estate (Delgado vda. de De la Rosa vs.
Heirs of Marciana Rustia vda. de Damian, 480 SCRA 334 [2006]).

Respondent, believing rightly or wrongly that she was the sole heir to Portugal’s estate,
executed on February 15, 1988 the questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section 1 of the Revised Rules of Court. Said rule is an exception to
the general rule that when a person dies leaving a property, it should be judicially
administered and the competent court should appoint a qualified administrator, in the order
established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed
to name an executor therein. (Portugal vs. Portugal-Beltran, G.R.No. 155555, August 16,
2005)

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have
validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court
is clear. Adjudication by an heir of the decedent’s entire estate to himself by means of an
affidavit is allowed only if he is the sole heir to the estate. (In the Matter of the Intestate
Estate of Delgado, G.R. No. 155733, January 27, 2006

4. Summary settlement of estates of small value, when


allowed
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Distinction between extrajudicial settlement (ES) and summary settlement of


estates of small value (SS):

1. ES-no court intervention


SS-judicial adjudication although summary

2. ES-value of estate immaterial


SS-applies only where gross value not more than P10,000.00

3. ES-allowed only in intestate succession


SS-both testate and intestate

4. ES-no outstanding debts of estate at time of settlement


SS-even if there are debts

5. Remedies of aggrieved parties after extrajudicial settlement


of estate

The remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial
partition is to file an action for reconveyance.

Prescriptive period for non-participants


Remedy of an heir who did not participate in, or had no knowledge of, the extrajudicial
partition -- file an action for reconveyance. Prescriptive period for non-participants – TEN
YEARS, because an action for reconveyance based on implied or constructive trust, being an
obligation created by law, prescribes in 10 years (Art. 1144, par. 2, Civil Code)
Teves vs. Court of Appeals, G.R. No. 109963 October 13, 1999

The period starts from issuance of title over the property (Marquez vs. CA, 300 SCRA 653
[1998]). Constructive trusts under Art. 1456 are established to prevent unjust enrichment. In
Marquez, husband executed affidavit of self-adjudication without including the children

The ruling in Gerona vs. De Guzman, 11 SCRA 153 (1964), cited in Pedrosa vs. CA,, that
prescriptive period for non-participants is 4 years from discovery of fraud, i.e., when deed was
filed with Register of Deeds and new title issued, is not applicable, because the same was
based on the old Code of Civil Procedure (Sec. 43, which governed prescription). The Gerona
doctrine was abandoned in Amerol vs. Bagumbaran, 154 SCRA 396 (1987) and reiterated in
Caro vs. CA, 180 SCRA 401 (1989) and Marquez vs. CA.

Remedy of annulment of extrajudicial settlement and title issued pursuant thereto


The deed of extrajudicial partition executed without including some of the heirs, who had no
knowledge of and consent to the same, is fraudulent and vicious . The deed of settlement made by
petitioners was invalid because it excluded respondents who were entitled to equal shares in the
subject property. Under the rule, no extrajudicial settlement shall be binding upon any person who
has not participated therein or had no notice thereof.
As the RTC nullified the Deed of Extrajudicial Settlement of Estate Among Heirs with Waiver of
Rights executed by petitioners and the title issued in accordance therewith, the order of partition of
the land subject of the settlement in accordance with the laws on intestate succession is proper
Reillo vs. San Jose, G.R. No. 166393, June 18, 2009

Imprescriptibility of action to annul fraudulent extrajudicial settlement


Unquestionably, the Deed of Extra-judicial Partition is invalid insofar as it affects the legitimate
share pertaining to the defendant-appellee in the property in question. There can be no question
1avvphi1

that the Deed of Extra-judicial Partition was fraudulently obtained. Hence, an action to set it aside
on the ground of fraud could be instituted.
The deed of extra-judicial partition in the case at bar being invalid, the action to have it annulled
does not prescribe.
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(Bautista vs. Bautista, G.R. No. 160556, August 3, 2007)

Bautista and earlier rulings were based on Article 1410 of the Civil Code:
“The action or defense for the declaration of the inexistence of a contract does not
prescribe.”
Among the contracts that are inexistent and void from the beginning under Article 1409 are
“(2) Those which are absolutely simulated or fictitious.”

Bautista was reiterated in the later case of Neri:


In the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in
favor of spouses Uy, all the heirs of Anunciacion should have participated. Considering that
Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were
not properly represented therein, the settlement was not valid and binding upon them and
consequently, a total nullity
On the issue of prescription, the Court agrees with petitioners that the present action has
not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. The
prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned
from the execution of the extrajudicial settlement finds no application to petitioners who were
deprived of their lawful participation in the subject estate. Besides, an "action or defense for
the declaration of the inexistence of a contract does not prescribe" in accordance with Article
1410 of the Civil Code. (Neri vs. Heirs of Uy, G.R. No. 194366, October 10, 2012)

Action to recover property not imprescriptible:


However, the action to recover property held in trust prescribes after 10 years from the time
the cause of action accrues, which is from the time of actual notice in case of unregistered
deed. In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the
extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses
Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of
10 yea
(Neri vs. Heirs of Uy, G.R. No. 194366, October 10, 2012)

Different ruling - action for reconveyance imprescriptible if conveyance complained of


was null in void ab initio:
In actions for reconveyance of the property predicated on the fact that the conveyance
complained of was null and void ab initio, a claim of prescription of action would be
unavailing.The action or defense for the declaration of the inexistence of a contract does not
prescribe. (Ingjug-Tiro vs. Casals, G.R. No. 134718, August 20, 2001; Dumaliang vs. Serban,
G.R. NO. 155133, February 21, 2007; Macababbad vs. Masirag, G.R. No. 161237, January
14, 2009)

What is the effect of the issuance of TCTs in the name of petitioners? In other words, does
the issuance of the certificates of titles convert the action to one of reconveyance of titled land
which, under settled jurisprudence, prescribes in ten (10) years?
Precedents say it does not; the action remains imprescriptible, the issuance of the
certificates of titles notwithstanding.
(Macababbad vs. Masirag, G.R. No. 161237, January 14, 2009)

Additional exception to prescription of actions – when plaintiff, the legal owner, and not
the defendant registered owner, is in possession of the land to be reconveyed. Said action,
when based on fraud, is imprescriptible as long as the land has not passed to an innocent
purchaser for value (Heirs of Saludares vs. CA, 420 SCRA 54).

Remedy of excluded heir when land has passed to an innocent purchaser for value – claim
for damages against the heirs responsible for the fraudulent exclusion.
(PEZA vs. Fernandez, G.R. No. 138971, June 6, 2001)
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C. Production and Probate of Will


Rule 75
Production of will,
Allowance of will necessary

1. Allowance of will is conclusive as to its due execution.

 Art. 783, Civil Code defines a will as: an act whereby a person is permitted with
the formalities prescribed by law to control to a certain degree the disposition of his
estate to take effect after his death.

Petitioner should realize that the allowance of her husband’s will is conclusive only
as to its due execution. The authority of the probate court is limited to ascertaining
whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. Thus, petitioner’s claim of title to the properties forming part
of her husband’s estate should be settled in an ordinary action before the regular courts.
(Nittscher vs. Nittscher, G.R. No. 160530, November 20, 2007)

2. Probate of will (special proceeding to establish the validity of a will) is MANDATORY.


Probate of the will is mandatory (Sec. 1, Rule 75) and therefore takes precedence over
intestate proceedings.
1. The law enjoins probate of the will and public policy requires it. Unless will is
probated and notice given to the whole world, right of a person to dispose of his
property by will may be rendered nugatory (Maninang vs. CA, 114 SCRA 478
[1982]).

. The Deed of Donation which is one of mortis causa, not having followed the formalities of
a will, is void and transmitted no right to petitioners’ mother. But even assuming that the
formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria. (Aluad vs. Aluad, G.R. No. 176943, October 17, 2008

2. In testate succession, no valid partition among heirs until after will has been
probated (Ralla vs. Judge Untalan, 172 SCRA 858 [1989]).

3. Presentation of will cannot be dispensed with on the ground of ESTOPPEL because


public policy requires that a will should be probated (Fernandez vs. Dimaguiba, 21
SCRA 428 [1967]).

1. Nature of probate proceeding

 PROBATE COURT DOES NOT LOOK INTO INTRINSIC VALIDITY

GENERAL RULE: Probate court’s authority is limited only to extrinsic validity of the
will, i.e.:

a. due execution – voluntariness


b. testator’s testamentary capacity – sound mind
c. compliance with formal requisites or solemnities

1. Intrinsic validity of the will normally comes after court declares that will has been duly
authenticated.
13

2. Court at this stage of the proceedings is not called upon to rule on intrinsic validity or
legality of the provisions of the will (Nuguid vs. Nuguid, 17 SCRA 449 [1966]; Maninang
vs. CA, supra).

EXCEPTIONS:

1. In exceptional instances, courts not powerless to pass upon certain provisions of will
which it may declare invalid even as it upholds extrinsic validity of will (Ajero vs. Ca,
236 SCRA 488 [1994]).

2. Probate court may only disregard passing on extrinsic validity of will where intrinsic
validity apparent on face of will (Maninang vs. CA, supra)

3. Probate of will might become idle ceremony if on its face it appears intrinsically void.

4. In Nuguid, court ruled that will was intrinsically invalid as it completely preterited parents
of the testator.

a. Preterition – annuls institution of heirs


b. Disinheritance – annuls institution of heirs as to portion of estate which disinherited
heirs have been illegally deprived

2. Who may petition for probate; persons entitled to notice

Rule 76
Allowance or Disallowance of Will

Sec. 1. Who may petition for allowance of will.

 WHO

1. Executor
2. Legatee – need not be a relative of decedent
3. Devisee – need not be a relative of decedent
4. Other interested person - heir; creditor
5. Testator – during his lifetime

 WHEN – at any time after death of testator – not subject to bar by statute of
limitations and does not prescribe, since it is required by public policy.

 WHERE – court having jurisdiction

 WHAT – petition to have will allowed whether:

a. will in possession of petitioner or not


b. will lost
c. will destroyed

JURISDICTION HOW ACQUIRED

a. Attaching of mere copy of will sufficient – annexing of original of will to the


petition is not jurisdictional requirement.
b. Delivery of will sufficient even if no petition filed – under Sec. 3, Rule 76, “when
a will is delivered to the court,” court could motu proprio take steps to fix time and place for
proving the will, issue corresponding notices.
14

 Only known heirs, legatees and devisees entitled to personal notice

Rule 76, Sec. 4.


Heirs, devisees, legatees and executor to be notified by mail or personally.

1. Notice of time and place of hearing should be addressed to

a. designated or known heirs, legatees and devisees


b. person named as executor (if he is not petitioner)
c. person named as co-executor not petitioning

2. residing in the Philippines


3. at their places of residence, if known
4. Personal service – at least 10 days before hearing
5. Mailed service – at least 20 days before hearing
6. IF TESTATOR asks for allowance of his own will – notice shall be sent only to his
COMPULSORY HEIRS.

 Notice to Designated Heirs, Legatees and Devisees Jurisdictional – when they are
known AND their places of residence are known (De Arranz vs. Galing, 161 SCRA
628).

Notice is required to be personally given to known heirs, legatees, and devisees of the
testator. [Sec. 4, Rule 76, Rules of Court]. A perusal of the will shows that respondent was
instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the
decedent, are neither compulsory nor testate heirs who are entitled to be notified of the
probate proceedings under the Rules. Respondent had no legal obligation to mention
petitioners in the petition for probate, or to personally notify them of the same. (Alaban vs.
CA, G.R. No. 156021, September 23, 2005).

D. Allowance or Disalllowance of will

1. Contents of petition for allowance of will

Rule 76, Sec. 2. Contents of petition.

a. Jurisdictional facts:
1. that a person has died leaving a will; and
2. the testator at the time of death is a resident within the territorial jurisdiction of the
court; or
3. the testator is a non-resident at the time of death but left property within the
territorial jurisdiction of the court
b. names, ages and residences of the heirs, legatees and devisees of the testator or
decedent
c. probable value and character of the property of the estate
d. name of the person for whom letters are prayed
e. if the will has not been delivered to the court, the name of the person having custody
thereof

Rule 76, Sec. 3. Court to appoint time for proving the will. Notice thereof to be
published.

Notice and Hearing; Publication


15

1. After will delivered to, or petition for allowance of will filed in court having jurisdiction,
court –

a. shall fix time and place for proving will – when all concerned may appear to contest
allowance thereof.
b. cause notice of such time and place to be PUBLISHED 3 weeks successively in
newspaper of general circulation in the province.

2. NO NEWSPAPER PUBLICATION – where petition for probate filed by TESTATOR


himself.

Probate of Will is In Rem

 Notice by publication as prerequisite to allowance of will is CONSTRUCTIVE


NOTICE to the whole world.

 When probate is granted, the judgment is binding upon everybody, even against
the state.

Probate JURISDICTIONAL

Without publication of petition, proceedings for settlement of estate is VOID and


should be ANNULLED.

Rule 76, Sec. 5. Proof of hearing. What sufficient in absence of contest.

 EVIDENCE INTRODUCED AT PROBATE OF WILL

1. Publication

2. Notice of hearing served on known heirs, legatees, devisees, etc. if places of residence
known

3. Testimony of subscribing witnesses


a. Uncontested – one witness sufficient
b. Contested – all subscribing witnesses and
notary (wills executed under Civil Code)
other witnesses (under certain conditions)

4. Holographic will
a. Uncontested – at least one witness who knows handwriting and signature of
testator; expert testimony (in the absence of competent witness)
b. Contested – at least 3 witnesses who know handwriting of testator; expert
testimony (in the absence of competent witness)

5. Holographic will – testator himself as petitioner


a. Contested – contestant has burden of disproving genuineness and due execution
b. Uncontested – testator must affirm that will and signature are in his own handwriting

 Substantial Compliance Rule

If will executed in substantial compliance with formalities of law, and possibility of bad
faith obviated – it should be admitted to probate (De Jesus vs. De Jesus, 134 SCRA 245).
16

2. Grounds for disallowing will

Rule 76, Sec. 9. Grounds for disallowing will.

1. Legal formalities
a. not executed and attested as required by law

2. Testamentary capacity
b. testator insane or otherwise mentally incapable to make will at time of execution

3. Due execution
c. executed under duress, or the influence of fear, or threats
d. procured by undue and improper pressure and influence on the part of the
beneficiary, or some other person, for his benefit.
e. signature of testator procured by fraud or trick and he did not intend that the
instrument be his will at time of fixing his signature
f. testator acted by mistake or did not intend that instrument be signed or should be
his will at the time of affixing his signature (Art. 389, Civil Code)

 Grounds for Disallowance of Will Exclusive

Lists in Sec. 9, Rule 76 and Art. 389 are EXCLUSIVE – NO OTHER GROUND can serve
to disallow a will.

Example: If testator fails to sign and date some dispositions in holographic will, it affects
only the validity of the dispositions, but not the whole will. Exc. If unauthenticated alterations,
cancellations or insertions are made on the DATE of will of on testator’s SIGNATURE (Ajero
vs. CA, supra).

 Separate wills may be probated jointly (Vda. de Perez vs. Tolete, 232 SCRA 722
[1994]).

3. Reprobate; Requisites before will proved outside allowed in the


Philippines; effects of probate

Rule 77
Allowance of will proved outside of philippines
and administration of estate thereunder

Sec. 1. Will proved outside of the Philippines may be allowed here.

 EVIDENCE NECESSARY FOR REPROBATE OF WILL or will probated outside the


Philippines:

1. due execution of will in accordance with foreign laws


2. testator has domicile in foreign country and not Philippines
3. will has been admitted to probate in such country
4. fact that foreign court is a probate court
5. law of the foreign country on procedure and allowance of wills
(Vda. de Perez vs. Tolete, supra)

 Reprobate of will

While foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them; however, petitioner, as ancillary administrator of
17

Audrey’s estate, was duty-bound to introduce in evidence the pertinent law of the State of
Maryland. (Ancheta vs. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006)

A person who seeks to reprobate a will executed in a foreign country must prove the laws
and procedure of that foreign country on wills. As foreign laws do not prove themselves and
our courts do not take judicial notice of them, the petitioner in the probate proceedings has the
burden to prove introduce evidence of such foreign law. (Ancheta vs. Guersey-Dalaygon, G.R.
No. 139868, June 8, 2006).

Courts will presume that the foreign law is the same as local law following the doctrine of
processual presumption in the absence of proof of the applicable foreign law. Where a foreign
law is not pleaded or, even if pleaded, is not proved, the presumption is that the foreign law is
the same as Philippine law.( ATCI Overseas Corporation vs. Etchin, G.R. No. 178551, October
11, 2010)

PUBLICATION AND NOTICE REQUIRED


Compliance with Secs. 3 and 4 of Rule 76, re publication and notice by mail or personally
to known heirs, legatees and devisees of testator resident in the Philippines and to executor,
if he is not the petitioner, required also in wills for reprobate (Vda. de Perez vs. Tolete).

EFFECT OF REPROBATE
When the will is allowed, it shall have the same effect as if originally proved and
allowed in such court (Rule 77, Sec. 3).
The letters testamentary or of administration granted shall extend to all of the estate of
the testator in the Philippines. After payment of just debts and expenses of administration,
the estate shall be disposed of according to such will, so far as such will may operate upon it
(Rule 77, Sec. 4).

E. Letters Testamentary and of Administration

Rule 78
Letters testamentary and of administration, when and to whom issued

Sec. 1. Who are incompetent to serve as executors or administrators

 EXECUTOR – person named in the will to administer decedent’s estate to carry out
provisions thereof
 ADMINISTRATOR – person appointed by the court to administer the estate
 Administrator need not be an heir – can be a stranger to the deceased, such as a
creditor.

GROUNDS FOR INCOMPETENCE

1. Minority
2. Non-residence
3. Unfitness
a. drunkenness
b. incompetence
c. want of understanding
d. want of integrity
e. conviction of offense involving moral turpitude (anything done contrary to justice,
honesty, good morals)
18

 Courts may refuse to appoint a person as executor or administrator on ground


of UNSUITABLENESS – adverse interest or hostile to those immediately
interested in the estate (Lim vs. Diaz-Maillares, 18 SCRA 371 [1966]).

Failure to file an income tax return” is not a crime involving moral turpitude because the
mere omission is already a violation regardless of the fraudulent intent or willfulness of the
individual. (Republic vs. Marcos, G.R. No. 130371, August 4, 2009)

LETTERS TESTAMENTARY ISSUED WHEN WILL ALLOWED (Rule 78, Sec. 4)


When the will is proved and allowed, the court shall issue LETTERS
TESTAMENTARY thereon to the person named as EXECUTOR therein, if he is --
a. competent
b. accepts the trust and
c. gives bond

1. When and to whom letters of administration granted

Rule 78, Sec. 6. When and to whom letters of administration granted

 When administration granted

1 No executor named in will ) letters of administration


2 Executor/s (is/are): ) with will annexed
a. Incompetent
- Minor
- Non-resident
- Unfit
b. Refuse the trust
c. Fail to give bond
3 Person dies intestate ) letters of administration
4 Will void and not allowed )

2. Order of preference

Order of preference in appointment of administrator (Rule 78, Sec. 6)

1. surviving spouse – partner in conjugal partnership and heir of deceased


2. next of kin

 Meaning of next of kin

On the matter of appointment osf administrator of the estate of the deceased, the
surviving spouse is preferred over the next of kin of the decedent. When the law speaks of
“next of kin”, the reference is to those who are entitled, under the statute of distribution, to the
decedent’s property; one whose relationship is such that he is entitled to share in the estate as
distributed, or, in short, an heir. In resolving, therefore, the issue of whether an applicant for
letters of administration is a next of kin or an heir of the decedent, the probate court perforce
has to determine and pass upon the issue of filiation. A separate action will only result in a
multiplicity of suits. (Angeles vs. Maglaya, G.R. No. 153798, September 2, 2005)

3. person requested by spouse or next of kin


4. principal creditors
a. if spouse or next of kin is incompetent or unwilling or
19

b. neglects for 30 days after death of decedent to apply for administration, or to


request that administration be granted to some other person

5. other person selected by court – if no creditor competent or willing

The order of preference in the appointment of a regular administrator as provided in the


afore-quoted provision does not apply to the selection of a special administrator. The
preference under Section 6, Rule 78 of the Rules of Court for the next of kin refers to the
appointment of a regular administrator, and not of a special administrator, as the appointment
of the latter lies entirely in the discretion of the court, and is not appealable. Not being
appealable, the only remedy against the appointment of a special administrator is Certiorari
under Rule 65 of the Rules of Court. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

 Court may reject order of preference

While surviving spouse is entitled to preference in the appointment, circumstances


might warrant his rejection and appointment of someone else, at the discretion of the court.

 Interest in estate as principal consideration

In the appointment of an administrator, the principal consideration is the interest in the


estate of the one to be appointed.

Those who will reap benefit of a wise, speedy and economical administration or will
suffer consequences of waste, improvidence or mismanagement – have the HIGHEST
INTEREST and MOST INFLUENTIAL MOTIVE to administer estate correctly (Gonzales vs.
Aguinaldo, 190 SCRA 112 [1990]).

The order of preference does not rule out the appointment of co-administrators,
especially in cases where justice and equity demand that opposing parties or factions be
represented in the management of the estate.

3. Opposition to issuance of letters testamentary; simultaneous


filing of petition for administration

Rule 79
Opposing issuance of letters testamentary, petition and contest
for letters of administration

 LETTERS TESTAMENTARY – issued to executor

 LETTERS OF ADMINISTRATION WITH WILL ANNEXED – granted to administrator


when there is no executor named in will, or executor is incompetent, refuses trust or
fails to give bond.

 LETTERS OF ADMINISTRATION – granted to administrator in intestate proceedings.

Sec. 1. Opposition to issuance of letters testamentary. Simultaneous petition for


administration

Any person interested in a will may oppose in writing the issuance of letters
testamentary to persons named as executors, and at the same time file petition for letters of
administration with will annexed.
20

Meaning of “interested person” – one who would be benefited by the estate (heir), or
one who has a claim against the estate (creditor). Interest must be MATERIAL and DIRECT,
not merely indirect or contingent (Sagunsin vs. Lindayag, 6 SCRA 874).

An “interested person” has been defined as one who would be benefited by the
estate, such as an heir, or one who has a claim against the estate, such as a creditor. The
interest must be material and direct, and not merely indirect or contingent (San Luis vs. San
Luis, G.R. No. 133743, February 6, 2007)

Where the right of the person filing a petition for the issuance of letters of
administration is dependent on a fact which has not been established or worse, can no longer
be established, such contingent interest does not make her an interested party. (Tayag ve.
Tayag-Gallor, G.R. No. 174680, March 24, 2008)

Sec. 2 Contents of petition for letters of administration

The jurisdictional facts required in a petition for issuance of letters of administration are:
(1) the death of the testator; (2) residence at the time of death in the province where the
probate court is located; and (3) if the decedent was a non-resident, the fact of being a
resident of a foreign country and that the decedent has left an estate in the province where the
court is sitting. (Garcia vda. de Chua vs. Court of Appeals, G.R. No. 116835 March 5, 1998)

PUBLICATION AND NOTICE REQUIRED (Sec. 3, Rule 79)

Publication and notice of hearing (per Sec. 3, Rule 76) jurisdictional.

Also, notice to “known heirs and creditors of the decedent, and to any other person believed
to have an interest in the estate” (per Sec. 4, Rule 76) if names and addresses are known (De
Arranz vs. Galing).

4. Powers and duties of executors and administrators; restrictions


on their powers

Powers:
a. Possess and manage estate of the deceased to pay debts and expenses of
administration. (Rule 84, Sec. 2)
b. (Executor or administrator of estate of a deceased partner) Have access to, examine
and take copies of, books and papers relating to the partnership business, and
examine and make invoices of the property belonging to such partnership (Ibid., Sec.
1).
c. With the approval of the court, to compound or compromise with a debtor of the
deceased (Rule 87, Sec. 4)

Duties
a. Maintain the estate in tenantable repair, and.
b. Deliver the same to the heirs or devisees when directed by the court. (Rule 84,
Sec. 3)

The administrator may only deliver properties of the estate to the heirs after payment of
the debts, funeral charges and other expenses against the estate, except when
authorized by the court (Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September
16, 2009)

5. Appointment of special administrator


21

Rule 80
Special administrator

 WHEN IS SPECIAL ADMINISTRATOR APPOINTED

1. When there is delay in granting letters testamentary or of administration by any


cause
- including appeal from allowance or disallowance of will
2. court may appoint special administrator to take possession and charge of the estate
of the deceased
3. until
a. questions causing delay decided or
b. executors or administrators appointed

The appointment of a special administrator is justified only when there is delay in


granting letters, testamentary (in case the decedent leaves behind a will) or administrative (in
the event that the decedent leaves behind no will, as in the Petition at bar) occasioned by any
cause. The principal object of the appointment of a temporary administrator is to preserve the
estate until it can pass into the hands of a person fully authorized to administer it for the
benefit of creditors and heirs. (Tan vs. Gedorio, Jr., G.R. No. 166520, March 14, 2008)

PUBLICATION AND NOTICE REQUIRED

Even in the appointment of a special administrator, same jurisdictional requirements


under Sec. 3, Rule 79.

 ORDER APPOINTING SPECIAL ADMINISTRATOR NOT APPEALABLE

Order appointing special administrator interlocutory in nature and mere incident in the
judicial proceedings, hence not appealable. The remedy is a petition for certiorari.
(Manungas vs. Loreto, G.R. No. 193161, August 22, 2011)

6. Grounds for removal of administrator

Rule 82
Revocation of Administration,Death,
Resignation and Removal of Executors
and Administrators

Sec. 1. Administration revoked if will discovered. Proceedings thereon.

1. If after letters of administration have been granted as if decedent died intestate, his will
is PROVED AND ALLOWED by the court,
2. letters of administration shall be REVOKED and all powers thereunder cease.
3. Administrator shall forthwith
a. surrender letters to the court and
b. render his account within such time as the court directs
4. Proceedings for issuance of letters testamentary or of administration will follow.

Sec. 2. Court may remove or accept resignation of executor or administrator.


Proceedings upon death, resignation, or removal.

Concerning complaints against the general competence of the administrator, the


proper remedy is to seek the removal of the administrator in accordance with Section 2, Rule
82. While the provision is silent as to who may seek with the court the removal of the
administrator, a creditor, even a contingent one, would have the personality to seek such relief.
22

After all, the interest of the creditor in the estate relates to the preservation of sufficient assets
to answer for the debt, and the general competence or good faith of the administrator is
necessary to fulfill such purpose. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009)

Sec. 3. Acts before revocation, resignation, or removal to be valid.

Effect of revocation, resignation or removal of executor or administrator on his


previous acts – lawful acts shall have same validity as if no revocation, resignation or
removal.

WHAT TO DO WITH PROCEEDINGS – DISCRETIONARY WITH COURT

Whether intestate proceedings already commenced should be discontinued and a new


proceeding under a separate number and title should be constituted – entirely a MATTER OF
FORM and lies within SOUND DISCRETION of court. Does not prejudice substantial rights of
heirs and creditors (Intestate Estate of Wolfson, 45 SCRA 381).

F. Claims Against the Estate

Rule 86
Claims against Estate

 Notice to creditors – immediately after granting letters testamentary or of


administration, court shall issue
- NOTICE requiring all persons having MONEY CLAIMS against the estate
- to FILE them in the office of the clerk of court (Sec. 1).

1. Time within which claims shall be filed; exception

 Time for filing claims – not more than 12 months nor less than 6
months after date of FIRST PUBLICATION of the notice (Sec. 2).

 New period allowed (Sec. 2, second sentence)

At any time before order of distribution is entered, creditor who failed to file his claim
within the time set may move to be allowed to file such claim. Court may for good cause
shown and on such terms as are just allow such claim to be filed within a period NOT
EXCEEDING ONE MONTH.
One month does not commence from expiration of the original period for filing claims. It
begins from the date of the order of the court allowing said filing (Barredo vs. CA, 6 SCRA
620).

2. Statute of Non-Claims

 Statute of Non-Claims (SNC) – the period fixed for the filing of claims against
the estate.

1. Period fixed by probate court must not be less than 6 months nor more than 12 months
from the date of first publication of the notice.
2. Such period once fixed by the court is MANDATORY – it cannot be shortened.
ex. Period fixed within 6 months
3. SNC supersedes statute of limitations – even if claim has not yet prescribed, it may be
barred by SNC.
23

 Ruling spirit of our probate law – SPEEDY SETTLEMENT of the estate of


deceased persons for the benefit of CREDITORS and those entitled to the RESIDUE
by way of INHERITANCE or LEGACY after the debts and expenses of administration
have been PAID (Sikat vs. Villanueva, 57 Phil. 486).

 Publication of notice to creditors (Sec. 3)


Immediately after notice to creditors is issued, executor or administrator shall cause -

1. publication of said notice 3 weeks successively in newspaper of general circulation in


the province, and
2. posting for the same period in
a. 4 public places in the province and
b. 2 public places in the municipality where decedent last resided

PUBLICATION OF NOTICE TO CREDITORS CONSTRUCTIVE NOTICE TO THE


WHOLE WORLD

Hence, creditor cannot be permitted to file his claim beyond the period fixed in the notice
on the ground that he had no knowledge of the administration proceedings (Villanueva vs.
PNB, 9 SCRA 145).

 Claims that must be filed (Sec. 5)

1. Claims for money against the decedent arising from contract, express or
implied, whether due, not due or contingent
2. Claims for funeral expenses and expenses for last sickness of decedent
3. Judgment for money against decedent
a. The judgment must be presented as a claim against the estate where the
judgment debtor dies before levy on execution of his properties (Evangelista vs. La
Provedra, 38 SCRA 379).
b. When the action is for recovery of money arising from contract, and defendant
dies before entry of final judgment, it shall not be dismissed but shall be allowed to
continue until entry of final judgment. A favorable judgment obtained by plaintiff
shall be enforced under Rule 86 (Rule 3, Sec. 20).

 Implied contract includes quasi contract based on solution indebiti (unjust


enrichment) - Metrobank’s claim against Chua’s estate is based on a quasi-contract.
It should reimburse Metrobank in case Metrobank would be held liable in the third-party
complaint filed against it by AMC. (Metropolitan Bank & Trust Company vs. Absolute
Management Corporation, G.R. No. 170498, January 9, 2013

 Money claims against a deceased debtor

1. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money
claims arising from a contract against the estate of a deceased debtor. Those claims are not
actually extinguished. What is extinguished is only the obligee’s action or suit filed before the
court, which is not then acting as a probate court. In the present case, whatever monetary
liabilities or obligations Santos had under his contracts with respondent were not
intransmissible by their nature, by stipulation, or by provision of law. Hence, his death did not
result in the extinguishment of those obligations or liabilities, which merely passed on to his
estate. Death is not a defense that he or his estate can set up to wipe out the obligations under
the performance bond. (Stronghold Insurance Company, Inc. vs. Republic-Asahi Glass
Corporation, G.R. No. 147561, June, 2006)
24

2. The deceased Numeriano Bautista was a passenger in a public utility jeepney owned by
the deceased Rosendo de Guzman and whose driver was Eugenio Medrano. It was a
vehicular accident involving the jeep which caused the death of Numeriano. The civil liability
adjudged in the criminal case, and for which Rosendo de Guzman or his estate became
subsidiary liable, is plainly a money claim. Any direct liability of Rosendo de Guzman or his
estate, for damages for the death of the passenger Numeriano, is not a claim for damages for
injury to person, which should be filed under Section 1, Rule 87. Rosendo de Guzman was not
personally responsible for the death of Numeriano. The claim of the heirs of Numeriano is one
arising from the contract of transportation. A claim for damages arising from breach of contract
is within the purview of Section 5, Rule 86. The claim of plaintiff heirs of Numeriano should
have been presented in the judicial proceedings for the settlement of the estate of Rosendo de
Guzman and, not having been so presented, has already been barred. (Bautista vs. De
Guzman, G.R. No. L-28298 November 25, 1983)

3.. Respondents’ monetary claim shall be governed by Section 20 (then Section 21), Rule 3
In relation to Section 5, Rule 86 of the Rules of Court. Thus, said money claims must be filed
against the estate of petitioner Melencio Gabriel. (Gabriel vs. Bilon, G.R. No. 146989,
February 7, 2007)

 Must be filed within the time limited in the notice, otherwise they are BARRED
FOREVER.

Exception – may be set forth as COUNTERCLAIMS in any action executor or


administrator may bring against the claimants.(Rule 86, Sec. 5)

 Rationale: 1) to protect the estate of the deceased by informing the executor or


administrator of the claims against it, thus enabling him to examine each claim and to
determine whether it is a proper one which should be allowed; 2) speedy settlement of
affairs of deceased; and 3) early delivery of property to distributes, legatees, or heirs
(Union Bank of the Philippines vs. Santibaňez, G.R. No. 149926, February 23, 2005).

A money claim against an estate is more akin to a motion for creditors' claims to be
recognized and taken into consideration in the proper disposition of the properties of the
estate.

A money claim is only an incidental matter in the main action for the settlement of the
decedent's estate; more so if the claim is contingent since the claimant cannot even institute a
separate action for a mere contingent claim. Hence, herein petitioner's contingent money
claim, not being an initiatory pleading, does not require a certification against non-forum
shopping.
(Sheker vs. Estate of Alice Sheker, G.R. No. 157912, December 13, 2007)

 Only MONEY CLAIMS may be presented in the testate or intestate proceedings.

 NOT ALL MONEY CLAIMS but only those arising upon a liability contracted by
decedent before his death.

 Claims arising after his death cannot be presented EXCEPT


- funeral expenses
- expenses for last sickness

N.B. Claims arising after decedent’s death may be allowed as expenses of


administration.

 Enumeration exclusive – refers only to contractual money claims


25

Only claims for money, debt or interest thereon, arising from contract can be presented
in the testate or intestate proceedings.

 Claims which survive death of accused

Claim for civil liability survives notwithstanding death of accused if the same may also
be based on a source of obligation other than delict (contract, law, quasi-contract, quasi-delict)

Separate civil action may be enforced either against

a. Estate of accused (contract)


b. Executor/ administrator (law, quasi-contract, quasi-delict)
(People vs. Bayotas, 236 SCRA 239 [1994]).

Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under
the notice to creditors required under Rule 86. These actions, being civil, survive the death of
the decedent and may be commenced against the administrator pursuant to Section 1, Rule
87.. (Hilado vs. Court of Appeals, G.R. No. 164108, May 8, 2009)

 Execution of final judgment not proper remedy but filing of claim

When judgment in a civil case has become final and executory, execution not proper
remedy to enforce payment; claimant should PRESENT CLAIM before probate court (Domingo
vs. Garlitos, June 29, 1963).

 Mandamus not available – immediate payment of claim by the administrator is NOT A


MATTER OF RIGHT (Echaus vs. Blanco, 179 SCRA 704 [1985]).

 Ordinary action for collection not allowed (Nacar vs. Nistal, 119 SCRA 29)

 Judgment appealable (Sec. 13) – judgment of the court approving or disapproving a


claim is APPEALABLE as in ordinary actions

PROCEDURE FOR FILING OF CLAIMS (Sec. 9)

1. Delivering the claim with the necessary vouchers to the clerk of court and by serving a
copy on the executor/administrator
2. An affidavit must support such claim, stating the amount justly due, that no payments
have been made thereon which are not credited and that there are no offsets to the same.

Answer of Executor/Administrator
Within fifteen (15) days after service of a copy of the claim on the executor or administrator,
he shall file his answer admitting or denying the claim.
Upon the filing of an answer to a claim, or expiration of the time for such filing, the claim
shall be set for trial with notice to both parties.

3. Claim of executor or administrator against the estate

Rule 86, Sec. 8


1. If the executor or administrator has a claim against the estate he represents,
2. he shall give notice thereof, in writing, to the court
3. the court shall appoint a special administrator, and
4. the special administrator shall, in the adjustment of such claim, have the same
26

power and be subject to the same liability as the general administrator or executor in
the settlement of the estate

From an estate proceeding perspective, the Special Administrator’s commission is no less


a claim against the estate than a claim that third parties may make. xxx The ruling on the
extent of the Special Administrator’s commission – effectively, a claim by the special
administrator against the estate – is the lower court’s last word on the matter and one that is
appealable. (Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008)

SOLIDARY OBLIGATION OF DECEDENT AND MORTGAGE DEBT DUE FROM THE


ESTATE
Where the obligation of the decedent is solidary with another debtor, the claim shall be filed
against the decedent as if he were the only debtor. without
prejudice to the right of the estate to recover contribution from the other debtor. In a joint
obligation of the decedent, the claim shall be confined to the portion belonging to him. (Sec.
6)

Creditor Holding a Claim against the Deceased Secured by Mortgage or Other


Collateral Security – He may
1. Abandon the security and prosecute his claim against the estate and share in the general
distribution of the assets of thereof;
2. Foreclose his mortgage or realize upon his security by action in court, making the
executor or administrator a party defendant and if there is judgment for deficiency, he may file
a contingent claim against the estate within the statute of non-claims;
3. Rely solely on his mortgage and foreclose ( extrajudicial) the same at anytime within the
period of the statute of limitations but he cannot be admitted as creditor and shall not receive
in the distribution of the other assets of the estate. (Sec. 7)
Under the third option, the mortgagee has no right to file a claim for any deficiency
(PNB vs. CA, G.R. No. 121597, June 29, 2001)

 These remedies are distinct, independent and mutually exclusive from each other;
thus, the election of one effectively bars the exercise of the others.The plain result of
adopting the last mode of foreclosure is that the creditor waives his right to recover
any deficiency from the estate. Section 7, Rule 86 governs the parameters and the
extent to which a claim may be advanced against the estate, whereas Act No. 3135
sets out the specific procedure to be followed when the creditor subsequently
chooses the third option – specifically, that of extra-judicially foreclosing real property
belonging to the estate. (Maglasang vs. Manila Banking Corporation, G.R. No.
171206, September 23, 2013)

JUDGMENT APPEALABLE
The judgment of the court approving or disapproving a claim shall be appealable.(Sec. 13).

4. Payment of debts

Rule 88
Payment of debts of the estate

Sec. 1. Debts paid in full if estate sufficient

If
a) after hearing all money claims against the estate, and
b) after ascertaining the amount of such claims
27

there are sufficient assets to pay the debts,


the executor or administrator shall pay the same
within the time limited for that purpose

Sec. 2. Part of estate from which debt paid when provision made by will.

Sec. 7. Order of payment if estate insolvent

If assets which can be appropriated for payment of debts are not sufficient, the executor or
administrator shall pay the debts against the estate, observing preference of credits under Arts.
1059, 2239-2251 of Civil Code

If Estate is Sufficient

General rule: The payment of the debts of the estate must be taken (by order of preference):
1. From the portion or property designated in the will;
2. From the personal property, and
3. From the real property.
If there is still a deficiency, it shall be met by contributions by devisees, legatees, or heirs who
have been in possession of portions of the estate BEFORE debts and expenses have been
settled and paid.(Secs. 1-3, 6).

Exceptions: Instances When Realty Can Be Charged First:


1. When the personal property is not sufficient. (Section 3, Rule 88)
2. Where the sale of personal personalty would be detrimental to the participants (everyone)
of the estate. (Section 3, Rule 88)
3. When sale of personal property may injure the business or interests of those interested in
the estate. (Section 2, Rule 89)
4. When the testator has not made sufficient provision for payment of such
debts/expenses/legacies. (Section 2, Rule 89)
5. When the decedent was, in his lifetime, under contract, binding in law, to deed real
property to beneficiary. (Section 8, Rule 89)
6. When the decedent during his lifetime held real property in trust for another person.
(Section 9, Rule 89)

Requisites for Exceptions to Ensue:


1. Application by executor/administrator
2. Written notice to persons interested
3. Hearing

The SAME principles apply if the debt of the estate is in another country.

 TIME FOR PAYING DEBTS (Secs. 15 & 16)

1. Executor/administrator allowed to pay debts (and legacies) for a period not


more than 1 year.
2. Extendible (on application of executor/ administrator and after notice and
hearing) – not exceeding 6 months for a single extension.
3. Whole period allowed to original executor/administrator shall not exceed 2
years.
4. Successor of dead executor/administrator may have time extended on notice
not exceeding 6 months at a time and not exceeding 6 months beyond the time
allowed to original executor/administrator.
28

Sec. 6. Court to fix contributive shares where devisees, legatees or heirs have
been in possession.

1. Where devisees, legatees or heirs have entered into possession or the estate before
debts and expenses settled and paid, and
2. have become liable to contribute for payment of such debts and expenses,
3. Court may, after hearing, order settlement of their several liabilities and order how
much and in what manner each person shall contribute and may issue execution as
circumstances require.

NOTE: This provision clearly authorizes execution to enforce payment of the debts of
the estate. Legacy is not a debt of the estate – legatees are among those against whom
execution is authorized to be issued (Pastor vs. CA, 122 SCRA 885 [1983]).

Compare to: Rule 88, Secs. 15 & 16


Rule 89, Secs. 1-5, 7 (a)
referring to payment of debts and/or legacies

As ruled in Pastor, ordered payment of legacy violative of rule requiring prior liquidation
of estate (determination of assets of estate and payment of debts and expenses) before
apportionment and distributed of residue among heirs; legatees and devisees.

Correct rule: Sec. 1 of Rule 90 does not include legacies as among those that should
be paid before order of distribution – only debts, funeral charges, expenses of administration,
allowance to widow and inheritance tax.

After debts and expenses of administration paid, residue given to heirs and those
entitled by way of inheritance or legacy (Magbanua vs. Akol, 72 Phil. 567). Purpose of
administration – distribution of residue among heirs and legatees after payment of debts and
expenses (Luzon Surety vs. Quebrar, 127 SCRA 301).

 Writ of execution not proper procedure for payment of debts and expenses of
administration

Upon motion of the administrator with notice to all heirs, legatees and devisees residing
in the Philippines, court shall order sale of personal property or sale or mortgage of real
property of the deceased to pay debts and expenses of administration out of the proceeds of
the sale or mortgage.

Exception: where devisees, legatees or heirs have entered into possession of their
respective portions in the estate prior to settlement and payment of debts and expenses (See
Sec. 6, Rule 88 above).

Payment of Contingent Claims (Secs. 4 & 5)

CONTINGENT CLAIM – Claim that is subject to the happening of a future uncertain event.

If the court is satisfied that a contingent claim duly filed is valid, it may order the
executor/administrator to retain in his hands sufficient estate to pay such contingent claim
when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors.

Requisites for the Estate to be Retained to Meet Contingent Claims:


1. Contingent claim is duly filed within the two (2) year period allowed for the creditors to
present claims;
2. Court is satisfied that the claim is valid;
29

3. The claim has become absolute.

Contingent Claims Which Mature AFTER the Two (2) Year Period for Filing of Claims
The assets retained in the hands of the executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order of the court to the persons entitled to the
same.

But the assets so distributed MAY still be applied to the payment of the claim when
established, and the creditor may maintain an action against the DISTRIBUTEES to recover the
debt, and such distributees and their estates shall be liable for the debt in proportion to the
estate they have respectively received form the property of the deceased

G. Actions by and against Executors and Administrators

Rule 87
Actions by and against executors
and administrators

1. Actions that may be brought against executors and


administrators

Sec. 1. Actions which may and which may not be brought against executor or
administrator.

Sec. 2. Executor or administrator may bring or defend actions which survive.

1. NOT ALLOWED AGAINST EXECUTOR OR ADMINISTRATOR – action upon claim for


recovery of money or debt or interest thereon.
- MUST BE AGAINST ESTATE (Secs. 1, 2 & 5, Rule 86)

2. ALLOWED – actions which survive


a. Actions to recover real or personal property or interest thereon, or to enforce a
lien thereon

Civil Case No. 2570 is an action for quieting of title with damages which is an action
involving real property. It is an action that survives pursuant to Section 1, Rule 87 as the claim
is not extinguished by the death of a party. (Saligumba vs. Palanog, G.R. No. 143365,
December 4, 2008)

Civil Case No. 3488, which is an action for the recovery of a personal property, a motor
vehicle, is an action that survives pursuant to Section 1, Rule 87 of the Rules of Court. As
such, it is not extinguished by the death of a party. (Sarsaba vs. Vda. de Te, G.R. No. 175910,
July 30, 2009)

b. Actions to recover damages for an injury to person or property, real or personal

 Executor or administrator may sue upon any cause of action which accrued to
the decedent during his lifetime (Bayot vs. Sorbito, 39 Phil. 650).

 Any action affecting the property rights of a deceased which may be brought by
or against him if he were alive, may be instituted and prosecuted by or against the
administrator, unless by its very nature, it cannot survive, because death extinguishes
such right.
30

Sec. 3. Heir (and devisee) may not sue (executor or administrator to recover title or
possession or for damages to property) until share assigned.

Before distribution is made or before any residue known – heirs and devisees have NO
CAUSE OF ACTION against the administrator for recovery of property left by the deceased
(Lao vs. Dee, 90 Phil. 868).

 When heirs may file action in court

General rule: heirs have no legal standing to sue for recovery or protection of property
rights of the deceased.

Exceptions:

1. Pending the filing of administration proceedings – under Art, 777, rights to


succession are transmitted from the moment of death of the decedent.
2. Administration proceedings have already been commenced but administrator
has not yet been appointed.
3. Executor or administrator is unwilling or refuses to bring suit.
4. Administrator is alleged to have participated in the act complained of and he is
made a party defendant.

Sec. 8. Embezzlement before letters issued.

 Double value rule

If before grant of letters testamentary or of administration, a person embezzles or


alienates money or property of the deceased – liable to an action in favor of
executor/administrator for DOUBLE THE VALUE of the property sold, embezzled or alienated.

3. Requisites before creditor may bring an action for recovery of


property fraudulently conveyed by the deceased

Sec. 10. When creditor may bring action. Lien for costs.

When there is
1. Deficiency of assets
2. Deceased in his lifetime had made or attempted such a conveyance (with intent to
defraud creditors or to avoid any right, debt or duty) as stated in Sec. 9, and
3. Executor or administrator has not commenced the action provided in Sec. 9 (entitled
Property fraudulently conveyed by the deceased may be recovered. When executor
or administrator must bring action)
 Any creditor of the estate may, with the permission of the court, commence and
prosecute to final judgment, in the name of the executor or administrator, a like
action for the recovery of the subject of the conveyance or attempted reconveyance for
the benefit of the creditors.
o Creditor should file a BOND executed to the executor or administrator,
in an amount approved by the judge, conditioned to indemnify the executor or
administrator against the costs and expenses incurred by reason of such action.
o Creditor shall have a LIEN upon any judgment recovered by him for
reasonable costs and expenses
 When conveyance or attempted conveyance made by deceased in his lifetime in favor
of the executor or administrator, action shall be in the name of all the creditors and
permission of the court and filing of bond not necessary
31

H. Distribution and Partition

Rule 90
Distribution and partition of estate

Sec. 1. When order for distribution of residue made

 General rule: distribution of the residue to persons entitled thereto after notice and
hearing and after payment of –
a. debts
b. expenses of administration
c. funeral charges
d. allowance to widow
e. inheritance tax

Exception: distribution before payment of obligations provided distributees give


BOND conditioned for payment thereof within such time as court directs.

1. Liquidation

 Requisites before distribution of estate

1. Liquidation - determination of all assets of the estate and payment of all debts and
expenses
2. Declaration of heirs – to determine to whom residue of the estate should be
distributed. Separate action for declaration of heirs not proper.

The Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid
of authority to render an adjudication and resolve the issue of advancement of the real
property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for
reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to
thresh out said question.
The net estate of the decedent must be ascertained, by deducting all payable
obligations and charges from the value of the property owned by the deceased at the time of
his death; then, all donations subject to collation would be added to it With the partible estate
thus determined, the legitime of the compulsory heir or heirs can be established; and only then
can it be ascertained whether or not a donation had prejudiced the legitimes. (Heirs of Doronio
versus Heirs of Doronio, G.R. No. 169454, December 27, 2007)

2. Project of partition

WHEN PROBATE COURT LOSES JURISDICTION

Project of partition – Towards the end of the proceedings in a settlement of estate petition,
a project of partition is usually prepared and presented to the court. The project of partition is a
PROPOSAL for distribution of the hereditary estimates and determines the persons entitled
thereto (Moran, Comments on the Rules of Court, 1997 ed., Vol. 3, pp. 688-689)

Finality of approval of project of partition by itself does NOT TERMINATE probate


proceeding (Timbol vs. Cano, 1 SCRA 1271).
32

 Probate court loses jurisdiction of an estate under administration only AFTER


payment of all debts and remaining estate DELIVERED to heirs entitled to
receive the same (Guilas vs. Judge of CFI of Pampanga, 43 SCRA 111)

A judicial partition is not final and conclusive and does not prevent the heirs from bringing
an action to obtain his share, provided the prescriptive period has not closed (Mari vs. Bonilla,
83 SCRA 1137).

The RTC of Makati, acting as a special commercial court, has no jurisdiction to


settle, partition, and distribute the estate of a deceased.
A probate court has the power to enforce an accounting as a necessary means to its
authority to determine the properties included in the inventory of the estate to be administered,
divided up, and distributed. Beyond this, the determination of title or ownership over the
subject shares (whether belonging to Anastacia or Oscar) may be conclusively settled by the
probate court as a question of collation or advancement. (Reyes vs. RTC Makati, Branch 142,
G.R. No. 165744, August 11, 2008)

Partial distribution of the estate should not have been allowed. There was no
determination on sufficiency of assets or absence of any outstanding obligations of the
estate of the late Raymond Triviere made by the RTC in this case. In fact, there is a
pending claim by LCN against the estate, and the amount thereof exceeds the value of the
entire estate. (Quasha Ancheta Pena and Nolasco Law Office vs. LCN Construction Corp.,
G.R. No. 174873, August 26, 2008)

Although the right of an heir over the property of the decedent is inchoate as long as the
estate has not been fully settled and partitioned, the law allows a co-owner to exercise rights of
ownership over such inchoate right.
Once an action for the settlement of an estate is filed with the court, the properties included
therein are under the control of the intestate court. And not even the administrator may take
possession of any property that is part of the estate without the prior authority of the Court.
(Silverio, Jr. vs. Court of Appeals, G.R. No. 178933, September 16, 2009)

3. Remedy of heir entitled to residue but not given his share

To demand his share through -

a. a proper motion in the same probate or administration proceedings, OR


b. motion to reopen if it had already been closed, and not through an independent
action which would be tried by another court or judge which might reverse a
decision or order of the probate court already final and executed and reshuffle
properties long ago distributed and disposed of (Guilas vs. Judge of CFI of
Pampanga, infra).

Four cases illustrate the proper remedy: Vda de Lopez vs. Lopez (G.R. No. L-23915
September 28, 1970), Divinagracia vs. Rovira (G.R. No. L-42615 August 10, 1976), Guillas vs.
Judge of CFI of Pampanga (L-26695, January 31, 1972) and Heirs of Jesus Fran vs. Salas.
(G.R. No. L-53546 June 25, 1992)

 Lopez compared to Divinagracia :

Both involved the issue of the reglementary period within which NON-PARTIES to the
partition, heir, devisee or any person interested in the estate, can reopen the case.
33

Conclusion – if proceeding already closed, motion to reopen may be filed by a non-


party deprived of his lawful participation, as long as it is within 30 days (now 15 days) or before
order closing the proceedings becomes final.

 Guilas compared to Fran:

Both involved PARTIES who have not received their shares.

Conclusion – parties to partition agreement who have not received their shares can file
a motion for execution within 5 YEARS. But if other grounds such as forgery of will are raised,
final judgment cannot be attacked except through a separate action. The validity of a final
judgment can be assailed through a petition for relief under Rule 38, annulment of judgment
under Rule 47, and petition for certiorari under Rule 65, assuming the judgment is void for
want of jurisdiction.

REMEDY OF PRETERITED HEIR

The intestate proceedings, although closed and terminated, can still be opened within the
prescriptive period upon petition by the preterited heir (Solivio vs. CA, G.R. No. 83484
February 12, 1990

Prescriptive period – 10 years. Action upon an obligation created by law must be brought
within 10 years from the time the right of action accrues (Art. 1144, Civil Code).

4. Instances when probate court may issue writ of execution

As a general rule, a probate court cannot issue a writ of execution.


Exceptions:
1. To satisfy the distributive shares of devisees, legatees and heirs in possession of the
decedent’s assets
2. To enforce payment of the expenses of partition
3, To satisfy the costs when a person is cited for examination in probate proceedings

SEVEN STAGES IN SETTLEMENT OF ESTATE

1. Petition
2. Hearing
3. Court Order
4. Claims Against Estate
5. Payment of Debts of Estate
6. Distribution and Partition of Estate
7. Closing

SETTLEMENT OF ESTATE
STAGES

PETITION
34

Testate Intestate

Filing of petition Filing of petition


for allowance for issuance of
of will – by executor, letters of
devisee, legatee, administration -
other interested person person
(Rule 76, Secs. 1 & 2) (Rule 79, Sec. 2)

Order setting petition for hearing

Notice of hearing

1. Publication of notice for


three consecutive weeks
(Rule 76, Sec. 3)

2. Notice by mail or personally


to designated or known heirs,
legatees, devisees, executor
(Rule 76, Sec. 4);

known heirs, creditors,


other interested persons
(Rule 79, Sec. 3)

II

HEARING

Proof of notice of hearing


(Rule 76, Sec. 5)
(Rule 79, Sec. 5)

Evidence for petitioner

1. Death of decedent
2. Residence at time of death

Testimony/ies of Decedent left no will or


subscribing there is no competent
witness/es and willing executor
(Rule 76 Secs. 5 & 11) (Rule 79, Sec. 5)

Petitioner is qualified for


appointment
35

(Rule 78, Secs. 1 & 6)


Proof when
testator is petitioner
(Rule 76, Sec. 12)

Evidence for Oppositor

File grounds for contest


(Rule 76, Sec. 10)

III

COURT ORDER

Order or decision allowing


will or admitting it to probate

Certificate of allowance
attached to prove will
(Rule 76, Sec. 13)

Order for issuance


of letters testamentary
(Rule 78, Sec. 4)

Order for issuance of


letters of administration
(Rule 79, Sec. 5)

Issuance of letters by clerk of court

Oath of executor or administrator

Filing of executor or administrator’s bond


(Rule 81, Sec. 1)

Filing of inventory within 3 mos.


(Rule 81, Sec. 1[a])

Accounting within 1 year


(Rule 81, Sec. 1 [c];
Rule 85, Sec. 8)
36

Actions by or against executor or administrator


(Rule 87)

IV

CLAIMS AGAINST ESTATE

Notice of filing of claims –


time for filing not more than
12 mos. nor less than 6 mos.
from first publication
(Rule 86, Secs. 1 & 2)

Publication of notice
for 3 consecutive weeks
and posting
(Rule 86, Secs. 3 & 4)

Filing of claim and answer thereto


(Rule 86, Secs. 9 & 10)

Trial of contested claim


(Rule 86, Sec. 12)

Judgment approving or
disapproving claim
(Rule 86, Sec. 13)

PAYMENT OF DEBTS OF ESTATE

Debts paid in full if estate sufficient


(Rule 88, Sec. 1)

Order of payment if estate insolvent


(Rule 88, Sec. 7)

Order for payment of debts


(Rule 88, Sec. 11)

Time for payment not to exceed


1 year, extendible for 1 more year
(Rule 88, Sec. 15)

Sales, mortgages and other encumbrances


of property of decedent for paying
debts. etc.
(Rule 89)
37

VI

DISTRIBUTION AND PARTITION OF ESTATE

Rule 90

Approval of final accounting


and project of partition

Actual distribution or delivery to


heirs of their respective shares

VII

CLOSING

Order declaring proceedings closed


and terminated

-------------------------------------------------

I. Trustees
Rule 98
Trustees

Sec. 1. When trustee appointed

1. A trustee necessary to carry into effect the provisions of a


a. Will
b. Written instrument
2. shall be appointed by the RTC in which the will is allowed, or
3. RTC of the province in which the property or some portion thereof affected by
the trust is situated

 Trust defined
A trust is a confidence reposed in one person, called the trustee, for the benefit of
another called the cestui que trust, with respect to property held by the former for the benefit
of the latter.

 Exercise of sound judgment by the court in the appointment of a trustee

Although the will does not name a trustee, the probate court exercises sound judgment
in appointing a trustee to carry into effect the provisions of the will – where a trust is actually
created by the will by the provision that certain of the property shall be kept together
undisposed during a fixed period and for a stated purpose (Lorenzo v. Posadas, 64 Phil. 353).

 Acquiring the trust by prescription


38

A trustee may acquire the trust estate by prescription provided there is a repudiation of
the trust, such repudiation being open, clear and unequivocal, known to the cestui qui trust
(Salinas vs. Tuazon, 55 Phil. 729).

Rule 98 applies only to express trust, one which is created by will or written instrument,
and not to an implied trust, which is deducible from the nature of the transaction as a matter of
intent, or which are superinduced on the transaction by operation of law as matters of equity,
independent of the particular intention of the parties (O’Lao vs Co Co Chit, 220 SCRA 656).

1. Distinguished from executor/administrator

A trustee, like an executor or administrator, holds an office of trust, particularly when the
trustee acts as such under judicial authority. Distinction: (1) duties of executors or
administrators are fixed and/or limited by law while those of the trustee of an express trust are
usually governed by the intention of the trustor or the parties, if established by contract; (2)
duties of trustees may cover a wider range than those of executors or administrators of the
estate of deceased persons. (Araneta vs. Perez, G.R. Nos. L-16185-86, May 31, 1962).

2. Conditions of the bond

The trustee must file a bond in an amount fixed by the court payable to the Government of
the Philippines. Failure to do so shall be cosidered as declining or resigning the trust.
Conditions of the bond:
1. Make and return to the court a true inventory of all real and personal estate that at
the time of the inventory shall have come to his possession or knowledge
2. Manage and dispose of all such estate according to law and the will of the testator
or provisions of the instrument or order under which he was appointed
3. Render a true account of the property in his hands
4. At the expiration of the trust, settle his accounts in court and pay over and deliver
all the estate remaining in his hands, or due from him on such settlement, to the person
or persons entitled thereto

3. Grounds for removal and resignation of a trustee

The court may remove a trustee on the following grounds:


1. The removal appears essential in the interest of the petitioners
2. The trustee is insane
3. The trustee is otherwise incapable of discharging the trust or is evidently unsuitable
to act as one
A trustee, whether appointed by the court or under a written instrument, may resign his
trust if it appears to the court proper so allow such resignation

4. Extent of authority of trustee

a. The powers of a trustee appointed by a Philippine court cannot extend beyond the
confines of the territory of the Republic of the Philippines. This is based on the principle that his
authority cannot extend beyond the jurisdiction of the country under whose courts he was
appointed.
b. In the execution of trusts, the trustee is bound to comply with the directions contained
in the trust instrument defining the extent and limits of his authority, and the nature of his power
and duties.

J. Escheat
39

Rule 91
Escheat

 Escheat defined

Escheat is a proceeding whereby the real and personal property of a deceased person
in the Philippines, who died without leaving any will or legal heirs, become the property of the
state upon his death.

Nature of Escheat Proceedings

- rests on the principle of ultimate ownership by the state of all property within its
jurisdiction.

Parties in Escheat Proceedings

An escheat proceeding is initiated by the government through the Solicitor General. All
interested parties, especially the

- actual occupants and


- adjacent lot owners

shall be personally notified of the proceeding and given opportunity to present their valid
claims; otherwise, it will be reverted to the state.

1. When to file

2. Requisites for filing of petition

Requisites for filing petition for escheat


1. person died intestate
2. he left properties in the Philippines
3. he left no heirs or persons entitled to the same.

 Where to file

Regional Trial Court of the place where the deceased was resident, or in which he
had estste, if he was a nonresident.

 Parties in a petition for escheat


Escheat proceeding must be initiated by the Solicitor General. All interested parties,
especially the actual occupant and the adjacent lot owners shall be personally notified
of the proceedings and given the opportunity to present their vaid claims, otherwise the
property will be reverted to the State (Tan vs. City of Davao, G.R. No. L-44347,
September 26, 1988).

 Notice and Publication (Sec. 2, Rule 91)

1. Date of hearing not more than 6 months after entry of order.


2. Publication of order at least once a week for 6 consecutive weeks in newspaper of
general circulation in the province.
40

Publication jurisdictional

Publication of the notice of hearing is a jurisdictional requisite, non-compliance with


which affects the validity of the proceedings (Divino v. Hilario, 62 Phil. 926).

 Escheat of unclaimed balances

Unclaimed balances which include credits or deposits of money, bullion, security or other
evidence of indebtedness of any kind, and interest thereon with banks in favor of any person
unheard from for a period of ten (10) years of more, together with the interest and proceeds
thereof shall be deposited with the Insular Government of the Philippines as the Philippine
Legislature may direct (Act No. 3936, Unclaimed Balances Act, Sec. 1)
Action to recover unclaimed balances shall be commenced by the Solicitor General in an
action for escheat in the name of the People of the Philippines in the Regional Trial Court of
the province where the bank is located, in which shall be joined as parties the bank and such
creditors or depositors. All or any member of such creditors or depositors or banks, may be
included in one action. (Id., Sec. 3; Republic vs. Court of First Instance of Manila and Pres..
Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988)

3. Remedy of respondent against petition; period for filing a claim

Remedy of respondent against escheat petition

Motion to dismiss for failure to state a cause of action. where petition for escheat does not
state facts which entitle petitioner to the remedy prayed for (Go Poco Grocery vs. Pacific
Biscuit Co., 65 Phil. 443; Rep. vs, PNB, G.R. No. L-16016, Dec. 30, 1961); or other grounds for
dismissal under the rules (Municipal Council of San Pedro, Laguna vs. Colegio de San Jose,
65 Phil. 318).

Filing of claim to estate (Sec. 4, Rule 91)

1. Devisee, legatee, widow, widower or other person entitled to such estate who
2. appears and files claim thereto within 5 years from date of judgment
(Note: 5-year period is prescribed to encourage would-be claimants to be punctilious in
asserting their claims, otherwise they may lose them forever in a final judgment.)
3. shall have possession and title thereto or if sold, municipality or city accountable to him
for proceeds, after deducting reasonable charges of care of estate.
4. Claim not made within said time barred forever.

K. Guardianship

Guardianship – a trust relation in which one person acts for another whom the law regards as
incapable of managing his own affairs. The person who acts is called the guardian and the
incompetent is called the ward.

 Basis of Guardianship (Parens Patriae)

Where minors are involved, the State acts as parens patriae. It is the duty of protecting
the rights of persons or individuals who because of age or incapability are in an unfavorable
position vis-à-vis other parties.

 Purpose of Guardianship
41

Safeguard the rights and interests of minors and incompetent persons Courts should be
vigilant to see that the rights of such persons are properly protected.

 Guardian – a person in whom the law has entrusted the custody and control of the
person or estate or both of an infant, insane, or other person incapable of managing his
own affairs.

1. General powers and duties of guardians

a. Care and custody of person of the ward and


b. Management of his estate, or
c. Management of his estate only
d. The guardian of the estate of a non-resident shall have the management of his estate
within the Philippines, and no other court than that in which such guardian was appointed shall
have jurisdiction over the guardianship (Sec. 1, Rule 96)

KINDS OF GUARDIANS

1) Legal Guardian – such by provision of law without the need for judicial appointment, as in
the case of the parents over the persons of their minor children, or in his absence the mother,
with respect to the property of the minor children not exceeding P50,000 in value; (2)
Guardian ad litem, who is a competent person appointed by the court for purposes of a
particular action or proceeding involving a minor; (3) the Judicial guardian, or a person
appointed by the court for the person and/or property of the ward to represent the latter in all
civil acts and litigation .

 Parents as guardians

When the property of the child under parental authority is worth P2,000.00 or less, the
father or the mother, without the necessity of court appointment, shall be his legal guardian.
When the property of the child is worth more than P2,000.00, the father or the mother shall be
considered guardian of the child’s property, with the duties and obligations of guardians under
these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the
court may, however, appoint another suitable person.(Sec. 7, Rule 93)

 Bond of parents as guardians of property of minor. -


If the market value of the property or the annual income of the child exceeds P50,000.00,
the parent concerned shall furnish a bond in such amount as the court may determine, but in
no case less than 10% of the value of such property or annual income, to guarantee the
performance of the obligations prescribed for general guardians. ( Sec. 16, RGM)

2. Conditions of the bond of the guardian

(a) Within 3 months after the issuance of letters of guardianship make inventory of all the
property; (b) faithfully execute the duties of the trust; (c) render a true and just account of all
the property of the ward; and (d) perform all orders of the court (Sec. 1, Rule 94)

3. Rule on guardianship over minors

Governing rule on guardianship of minors

Guardianship of minors as distinguished from “incompetents” other than minority is now


governed by the RULE ON GUARDIANSHIP OF MINORS (A.M. No. 003-03-05-SC), effective
May 1, 2003. This was promulgated by the Supreme Court pursuant to the Family Courts Act
of 1997 ( RA 8369). which vested in the Family Courts exclusive jurisdiction on guardianship of
minors.
42

Sections 1 and 27 of the RGM make it clear that it shall apply only to petitions for
guardianship over the person, property or both, of a minor. Petitions for guardianship of
incompetents who are not minors shall continue to be governed by Rules 92-97 and heard and
tried by regular Regional Trial Courts.

Rules 92-97 may therefore be deemed modified by the RGM.

Aside from the RGM, the Supreme Court also issued the following rules pursuant to the Family
Courts Act:

1. Rule on Examination of a Child Witness (A.M. No. 00-4-07-SC), effective December 15,
2000
2. Rule on Juveniles in Conflict with the Law (A.M.No. 02-1-18-SC), effective April 15,
2002
3. Rule on Commitment of Children (A.M. No. 02-1-19-SC), effective April 15, 2002
4. Rule on Domestic and Inter-Country Adoption (A.M.No. 02-6-02-SC), effective August
22, 2002
5. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
(A.M. No. 02-11-10-SC), effective March 15, 2003
6. Rule on Legal Separation (A.M. No. 02-11-11-SC), effective March 15, 2003
7. Rule on Provisional Orders (A.M. No. 02-11-12-SC), effetive March 15, 2003
8. Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors (A.M.
No. 03-04-04-SC), effective May 15, 2003
9. Rule on Violence Against Women and Their Childen (A.M. No. 04-10-11-SC),
effective November 15, 2004 (following the enactment of RA 9262, An Act Defining
Violence against Women and their Children, Providing for Protective Measures for
Victims, Prescribing Penalties Therefor, and for Other Purposes, or Anti-VAWCI Law,
effective March 27, 2004)

Minors – those below 18 years old.


Incompetents – include
a. persons suffering under the penalty of civil interdiction
b. hospitalized lepers
c. prodigals
d. deaf and dumb who are unable to read and write
e. those of unsound mind, even though they have lucid intervals
f. persons not being of unsound mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside aid, take care of themselves and
manage their property

 Who may petition for appointment of guardian of incompetent ? (Sec. 1, Rule


93)

Relative, friend, or other person on behalf of incompetent who has no parent or lawful
guardian, for the appointment of a general guardian for the person or estate or both of such
incompetent.

 Who may petition for appointment of guardian of minor? (Sec. 2, RGM)

1. Relative or other person on behalf of the minor


2. Minor himself if 14 years of age or over
for the appointment of a general guardian over the person or property, or both, of such
minor.
43

The petition may also be filed by the Secretary of Social Welfare and Development and
Secretary of Health in the case of an insane minor person who needs to be hospitalized.

 Jurisdictional facts (Sec. 2, Rule 93)


1. incompetency of person for whom guardianship is sought;
2. domicile

 Notice of application and hearing (Sec. 3) – NO PUBLICATION REQUIRED

Notice of hearing of the petition shall be served on


1. persons mentioned in the petition residing in the Philippines;
2. incompetent himself
* minor if 14 years of age or over (Sec. 8, RGM)

NOTICE IS JURISDICTIONAL

Service of notice upon the minor if 14 years of age or over or upon the incompetent is
jurisdictional. Without such notice, the court acquired no jurisdiction to appoint a guardian
(Nery vs. Lorenzo, 44 SCRA 431 [1972]).

The rules do not necessitate that creditors of the minor or incompetent be likewise
identified and notified. The reason is simple: because their presence is not essential to the
proceedings for appointment of a guardian. They will only insist that the supposed minor or
incompetent is actually capacitated to enter into contracts, so as to preserve the validity of said
contracts and keep the supposed minor or incompetent obligated to comply therewith.
(Alamayri vs. Pabale, G.R. No. 151243, April 30, 2008)

Grounds of petition (Sec. 4, RGM)


1. death, continued absence, or incapacity of his parents
2. suspension, deprivation or termination of parental authority
3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental
authority
4. when the best interests of the minor so require

Who may be appointed guardian of the ward, or order of preference (Sec. 6. RGM)
1. surviving grandparent and in case several grandparents survive, the court shall select any of
them taking into account all relevant considerations
2. oldest brother or sister of the minor over 21 years of age, unless unfit or disqualitied
3. actual custodian of the minor over 21 years of age, unless unfit or disqualified
4. any other person, who in the sound discretion of the court, would serve the best interests of
the minor

L. Adoption
 Nature and concept of adoption

Adoption is a juridical act, a proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate paternity and filiation.

 Purpose of Adoption
44

Adoption used to be for the benefit of the adoptor. It was intended to afford persons
who have no child of their own the consolation of having one by creating thru legal fiction the
relation of paternity and filiation where none exists by blood relationship.

Present tendency – more toward the promotion of the welfare of the child, and
enhancement of his opportunities for a useful and happy life.

Under the law now in force, having legitimate, legitimated, acknowledged natural
children or children by legal fiction is no longer a ground for disqualification to adopt.

 Objectives of Rule on Adoption

a. Best interests of child – paramount consideration in all matters relating to his care,
custody and adoption.
b. The state shall provide alternative protection and assistance thru foster care or
adoption for every child who is a foundling, neglected, orphaned, or abandoned.

 Laws on adoption

The prevailing laws on adoption are RA 8552 ( Domestic Adoption Act of 1998) and RA
8043 (Inter-Country Adoption Act of 1995). Relevant also is the Family Code (EO 209, effective
August 3, 1988, which repealed the substantive provisions of PD 603 and EO 91 on adoption).

Rule on Adoption (A.M. No. 02-6-02-SC), or ROA, effective August 22, 2002 –
Guidelines issued by the Supreme Court in petitions for adoption. The Rule repealed Rules
99-100. It covers domestic adoption (Secs. 1-25) and inter-country adoption (Secs. 26-32).

1. Distinguish domestic adoption from inter-country adoption

KIND Domestic Adoption Inter-country Adoption


Type of Proceeding Judicial Adoption Extrajudicial Adoption
Who may adopt The following may adopt: An alien or a Filipino citizen
(a) Any Filipino citizen; permanently residing abroad
(b) Any alien possessing the may file an application for
same qualifications as above inter-country adoption of a
stated for Filipino nationals; Filipino child.
(c)The guardian with respect to
the ward.
Who may be adopted The following may be adopted: Only a legally free child may
(a) Any person below eighteen be the subject of inter-country
(18) years of age who has adoption
been administratively or
judicially declared available
for adoption;
(b) The legitimate son/daughter
of one spouse by the other
spouse;
(c) An illegitimate son/daughter
by a qualified adopter to
45

improve his/her status to that


of legitimacy;
(d) A person of legal age if, prior
to the adoption, said person
has been consistently
considered and treated by
the adopter(s) as his/her own
child since minority;
(e) A child whose adoption has
been previously rescinded; or
(f) A child whose biological or
adoptive parent(s) has died;
Provided, That no
proceedings shall be initiated
within six (6) months from the
time of death of said
parent(s) (Section 8)

Where to file application Family Court of the place where RTC having jurisdiction over
the adopter resides the child, or with the Inter-
Country Adoption Board,
through an intermediate
agency, whether
governmental or an
authorized and accredited
agency, in the country of the
prospective adoptive parents.
(Section 10)
What petition for adoption May include prayer for change of Only petition for adoption.
may include name, rectification of simulated
birth or declaration that the child
is a foundling, abandoned,
dependent or neglected child.
Supervised trial custody Supervised trial custody period Supervised trial custody
in the Philippines for at least six period in the Philippines for at
(6) months (Court may reduce least six (6) months. (Section
period or exempt parties from 14)
trial custody) (Section 12)

2. Domestic Adoption

 Who may adopt (Sec. 7, RA 8552; Sec. 4, ROA)

1. Any FILIPINO
- of legal age
- in possession of full civil capacity and legal rights
- of good moral character
- has not been convicted of any crime involving moral turpitude
- emotionally and psychologically capable of caring for children
- at least 16 yrs. older than the adoptee
* may be waived when adopter is biological parent of adoptee or is spouse of
adoptee’s parent
- in a position to support and care for his children in keeping with means of the
family.
46

2. Any ALIEN possessing same qualifications, subject to certain conditions.

 HUSBAND AND WIFE MUST JOINTLY ADOPT(Sec. 7, RA 8552; Sec. 4, ROA)

EXCEPTIONS:
a) if one spouse seeks to adopt legitimate child of the other;
b) if one spouse seeks to adopt his own illegitimate child (provided the other spouses
signified his consent thereto)
c) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of
the other, joint parental authority shall be exercised by the spouses.

 Venue (Sec. 6, ROA)


Family court of province or city where prospective adoptive parents reside

 Whose consent necessary (Sec. 9, RA 8552)

1. biological parents of adoptee, if known


*However, consent of biological parents, even if they are known, is not necessary if
they have ABANDONED the child (Lang vs. CA, 298 SCRA 128 [1998]).

2. adoptee, if 10 years of age or older


3. legitimate or adopted children of adopter or adoptee, if 10 years of age or older
4. illegitimate children of adopter, if living with him, if 10 years of age or older
5. spouse of adopter or adoptee

 Change of name (Sec. 10, ROA)

In case petition also prays for change of name, title or caption must contain:

1. registered name of child


2. aliases of other names by which child has been known
3. full name by which child is to be known

 PUBLICATION JURISDICTIONAL

Adoption is action in rem – involves the status of persons.

 Decree of Adoption
If supervised trial custody SATISFACTORY and
- court CONVINCED from trial custody report and evidence adduced that
- adoption shall redound to BEST INTERESTS of adoptee
- DECREE OF ADOPTION issued which shall take effect as of date original petition filed
even if petitioners DIE before issuance

a. effects of adoption – parental authority, legitimacy, succession (See Secs. 16-


18, RA 8552)
47

(1) For civil purposes the adopted shall be deemed to be a legitimate child of the
adoptioners and both shall acquire the reciprocal rights and obligations arising from the
relationship of parents and child, including the right of the adopted to use the surname of the
adopters; (2) The parental authority of the parents by nature over the adoped shall terminate
and be vested in the adopters, except that if the adopter is the spouse of the parents by
nature of the adopted, the parental authority over the adopted shall be exercised jointely by
both spouses; and (3) The adopted shall remain an intestate heir of his parents and other
blood relatives. (Art. 189, Family Code)

 Adoption strictly between adopter and adopted

If adopting parent should die before adopted child, latter cannot represent the adopter
in the inheritance from the parents and ascendants of the adopter. Adopted child is not related
to the deceased in that case because filiation created by fiction of law is exclusive between
adopted and adopter. By adoption, the adopters can make for themselves an heir but they
cannot make one for their relatives.(Republic vs. Valencia, G.R. No. L-32181, March 5, 1986)

 An illegitimate child, upon adoption by her natural father, may use the surname
of her natural mother as her middle name. (In the Matter of the Adoption of Stephanie
Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.)

b. instances when adoption may be rescinded

 RESCISSION OF ADOPTION BY ADOPTEE

Petition VERIFIED

Filed by adoptee
- over 18 years of age
- with assistance of DSWD, if minor
- by guardian or counsel, if over 18 but incapacitated
Grounds committed by ADOPTER:
1. repeated physical and verbal maltreatment by adopter despite having undergone
counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with parental obligations

Adoption, being for the best interest of the child, is not subject to rescission by ADOPTER.
However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the
Civil Code.(Sec. 19, R.A. 8552). These causes are as follows:

1) When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence


causes the testator to make a will or to change one already made;
48

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits
such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

 Venue - Family Court of province where adoptee resides (Sec. 20, ROA)

 Time within which to file petition

If MINOR – within 5 yrs. after reaching age of majority


If INCOMPETENT – within 5 yrs. after recovery from incompetency.

, c. Effects of rescission of adoption ( Sec. 23, ROA)

(a) parental authority of the biological parent of the adoptee, if known, or the legal custody of
DSWD is restored if the adoptee is still a minor or incapacitated;
(b) reciprocal rights and obligations of the adopter and adoptee to each other are
extinguished;
(c) succession rights revert to their status prior to adoption, as of the date of judgment of
rescission, but vested rights acquired prior to rescission are to be respected
(d) court shall order adoptee to use the name stated In the original birth or foundling
certificate
(e) court shall order the Civil Registrar where the adoption decree was registered to
cancel the new birth certificate of the adoptee and reinstate the original birth or foundling
certificate

3. Inter-country Adoption
a. when allowed

Inter-country adoption of Filipino children by foreign nationals and Filipino citizens


permanently residing abroad is allowed by law if such children cannot be adopted by
qualified Filipino citizens or aliens.

b. functions of the RTC (Family Court )

A verified petition for inter-country adoption may be filed by a foreign national or Filipino
citizen permanently residing abroad with the Family Court having jurisdiction over the place
where the child resides or may be found. Its functions are (1) receive the application, (b)
assess the qualification of the prospective adopter and (3) refer its findings, if favorable, to
the Inter-Country Adoption Board. The latter, on its own, however, can receive the original
application (RA 8043, Sec. 10; Rule on Adoption, Secs. 28 & 32))

The Inter-Country Adoption Board is the central authority in matters relating to


inter-country adoption. It is the policy-making body for purposes of carrying out the
provisions of the law, in consultation and coordination with the DSWD, the different child-
care and placement agencies, adoptive agencies as well as non-governmental
organizations engaged in child care and placement activities (RA 8043, Sec. 4).
49

c. “best interest of the minor” standard

Inter-country adoption is allowed only when the same shall prove beneficial to the child’s
best interests, and shall serve and protect his/her fundamental rights (RA 8043, Sec. 2)

Only a child legally available for domestic adoption may be the subject of inter-
country adoption (Rule on Adoption, Sec. 29).

Financial qualification in adoption

Since the primary consideration in adoption is the best interest of the child, it follows
that the financial capacity of prospective parents should also be carefully evaluated and
considered. Certainly, the adopter should be in a position to support the would-be adopted
child or children, in keeping with the means of the family..(Landingin vs. Republic, G.R. No.
164948, June 27, 2006)

M. Writ of Habeas Corpus

Rule 102
Habeas Corpus

 To what habeas corpus extends (Sec. 1)


1. All cases of illegal confinement of detention
2. by which any person is deprived of his liberty, or
3. by which the rightful custody of any person is withheld from the person entitled
thereto

 Purpose of habeas corpus – relieve a person from unlawful restraint.

Specifically:
1. to obtain immediate relief from illegal confinement
2. to liberate those who may be imprisoned without sufficient cause
3. to deliver them from unlawful custody

Essentially a writ of inquiry and is granted to test the right under which a person is
detained (Velasco v. CA, 245 SCRA 677).

It is a remedy intended to determine whether the person under detention is held under lawful
authority (Sombong vs. CA, G.R. No. 111876, January 31, 1996)

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when


instituted for the sole purpose of having the person of restraint presented before the judge in
order that the cause of his detention may be inquired into and his statements final.The writ
of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who
holds him in what is alleged to be the unlawful authority.Hence, the only parties before the
court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only
question to be resolved is whether the custodian has authority to deprive the petitioner of his
liberty (Caballes vs. CA, G.R. No. 163108, February 23, 2005)

This writ may issue even if another remedy which is less effective may be availed of –
failure by accused to perfect his appeal before the CA does not preclude recourse to the writ.
50

The writ may be granted upon a judgment already final (Chavez v. CA, 24 SCRA 663 [1968]).

1. Contents of the petition


a. That the person in whose behalf the application is made is imprisoned or restrained
of his liberty;
b. The officer or name of the person by whom he is so imprisoned or restrained;
c. The place where he is so imprisoned or restrained, if known;
d. Copy of the commitment or caue of detention of such person. If it can be procured
without any legal authority, such fact shall appear. (Sec. 3)

2. Contents of the Return


a. Whether he has or has not the party in his custody or power, or under restraint;
b. If the party is in his custody or power, or under restraint -- the authority and the true
and whole cause thereof, with a copy of the writ, order, execution, or other processes upon
which the party is held
c. If the party, etc. , and is not produced – nature and gravity of sickness or infirmity
d. If the party was in his custody, etc. and has transferred such custody or restraint to
another – to whom, at what time, for what cause and by what authority such transfer was
made. (Sec. 10)

3. Distinguish peremptory writ from preliminary citation

Peremptory writ of habeas corpus – unconditionally commanding the respondent to


have the body of the detained person before the court at a time and place therein specified.

Preliminary citation – requiring the respondent to appear and show cause why the
peremptory writ should not be granted.

 Order to produce body not a grant of the remedy of habeas corpus

In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition. The respondent must produce the person and
explain the cause of his detention. However, this order is not a ruling on the propriety of the
remedy or on the substantive matters covered by the remedy. Thus, the Court’s order to the
Court of Appeals to conduct a factual hearing was not an affirmation of the propriety of the
remedy of habeas corpus. (In the Matter of the Petition for Habeas Corpus of Alejano vs.
Cabuay, G.R. No. 160792, August 25, 2005

4. When not proper/applicable

a. For asserting or vindicating denial of right to bail (Enrile vs. Salazar, 186 SCRA 217
[1990])
b. For correcting errors in appreciation of facts and/or in the application of law. It is not a
writ of error. (Sotto vs. Director of Prisons, May 30, 1962).

5. When writ disallowed/discharged authorized (Sec. 4)


a. When the person alleged to be restrained of his liberty is in the custody of an officer
1. under process issued by a court or judge or
2. by virtue of a judgment or order of a court of record and
3. the court or judge had jurisdiction to issue the process, render the judgment
or make the order
 the writ shall not be allowed
b. When a person is
1. charged with or
51

2. convicted of an offense or
3. suffering imprisonment under lawful judgment
 his discharge shall not be authorized

Writ of habeas corpus cannot be issued once person is charged with a criminal
offense

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to
“all case of illegal confinement or detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person entitled thereto.” The
remedy of habeas corpus has one objective: to inquire into the cause of detention of a person,
and if found illegal, the court orders the release of the detainee. If, however, the detention is
proven lawful, then the habeas corpus proceedings terminate. (In the Matter of the Petition for
Habeas Corpus of Kunting, G.R. No. 167193, April 19, 2006)

6. Distinguish writ of habeas corpus from writ of amparo and


habeas data (See Table)

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA


DEFINITION “Habeas corpus” is a It is a remedy available It is a remedy
Latin phrase which to any person whose available to any
literally means “you right to life, liberty, and person whose right
have the body.” It is a security has been to privacy in life,
writ directed to the violated or is threatened liberty or security is
person detaining with violation by an violated or
another, commanding unlawful act or omission threatened by an
him to produce the body of a public official or unlawful act or
of the prisoner at a employee, or of a omission of a public
designated time and private individual or official or employee,
place, with the day and entity. The writ covers or of a private
cause of his capture extralegal killings and individual or entity
and detention, to do, enforced engaged in the
submit to, and receive disappearances or gathering, collecting
whatsoever the court or threats thereof. or storing data or
judge awarding the writ information regarding
shall consider in that the person, family,
behalf. home and
correspondence of
the aggrieved party.
AVAILABILITY Sec. 1 Sec. 1 Sec. 1

To all cases of illegal To any person whose To any person whose


confinement or right to life, liberty and right to privacy in life,
detention: security is violated or liberty and security is
threatened with violation violated or
1. By which any person by an unlawful act or threatened with
is deprived of his liberty; omission of a public violation by an
or official or employee, or unlawful act or
of a private individual or omission of a public
2. By which the rightful entity. official or employee,
custody of any person is or of a private
withheld from the individual or entity
person entitled thereto. engaged in:
52

1. Gathering
2. Collecting
3. Storing

Of data or
information regarding
the person family,
home and
correspondence of
the aggrieved party.
PETITIONER Sec. 3 Sec. 2 Sec. 2

By the party for whose By the aggrieved party, General rule:


relief it is intended, or or by any qualified
by some other person in person or entity in the The aggrieved party
his behalf order provided in Sec. 2
Except:

In cases of extralegal
killings and enforced
disappearances:

1. Immediate family;
2. In default of no. 1,
ascendant,
descendant or
collateral relative
within the 4th civil
degree of
consanguinity or
affinity.
VENUE If filed with RTC, where Sec. 3 Sec. 3
detainee is detained
SC, CA and SB SC, CA and SB
.
RTC of the place where RTC:
the threat, act or
omission was 1. Where petitioner
committed or any of its resides; or
elements occurred. 2. Where
respondent resides;
or
3. Which has
jurisdiction over the
place where data or
information is
gathered, etc.

All at the option of


petitioner.
EXTENT OF SC, CA and SB: Anywhere in the Anywhere in the
ENFORCEABILITY anywhere in the Philippines Philippines
Philippines
53

RTC: only within its


judicial district
WHEN TO FILE/ Sec. 2 Sec. 3
EXEMPTION FROM
DOCKET FEES On any day and at any On any day and at any
time time. Petitioner exempt Indigent petitioner
from docket fees exempt from docket
fees
SETTING OF Sec. 12 Sec. 6 Sec. 7
HEARING
Hearing on return Not later than 7 days Not later than 10
from date of issuance of days from date of
writ issuance of writ
HOW SERVED Sec. 7 Sec. 8 Sec. 9

Service of the writ shall If the writ cannot be If the writ cannot be
be made by leaving the served personally on served personally on
original with the person respondent, the rules on respondent, the rules
to whom it is directed substituted service shall on substituted
and preserving a copy apply service shall apply
on which to make return
of service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
exercising such custody
FILING OF RETURN Sec. 10 Sec. 9 Sec. 9

Signed and shall also Verified written return Verified written return
be sworn to if the within 5 work days from within 5 days from
prisoner is not produced service of writ service of writ

- cannot be extended -may be reasonably


except on highly extended by the
meritorious grounds court for justifiable
grounds
EFFECT OF FAILURE Sec. 12 Sec. 14
TO FILE RETURN
In case respondent fails In case respondent
to file a return, the court, fails to return, the
justice or judge shall court, justice or
proceed to hear the judge shall proceed
petition ex parte to hear the petition
ex parte, granting
petitioner such relief
as the petition may
warrant unless the
court in its discretion
requires petitioner to
submit evidence.
PROHIBITED Sec. 11 Sec. 13
54

PLEADINGS AND
MOTIONS (a) Motion to dismiss; (a) Motion to
(b) Motion for extension dismiss;
of time to file return, (b) Motion for
opposition, affidavit, extension of time to
position paper and other file return,
pleadings; opposition, affidavit,
(c) Dilatory motion for position paper and
postponement; other pleadings;
(d) Motion for a bill of (c) Dilatory motion
particulars; for postponement;
(e) Counterclaim or (d) Motion for a bill of
cross-claim; particulars;
(f)Third-party complaint; (e) Counterclaim or
(g)Reply; cross-claim;
(h) Motion to declare (f) Third-party
respondent in default; complaint;
(i)Intervention; (g) Reply;
(j)Memorandum; (h) Motion to declare
(k)Motion for respondent in
reconsideration of default;
interlocutory orders or (i) Intervention;
interim relief orders; and (j) Memorandum;
(l) Petition for certiorari, (k) Motion for
mandamus or reconsideration of
prohibition against any interlocutory orders
interlocutory order. or interim relief
orders; and
(l) Petition for
certiorari, mandamus
or prohibition against
any interlocutory
order.
SUMMARY HEARING Sec. 13 Sec. 15

The hearing on the Same as WOA


petition shall be
summary. However, the
court, justice or judge
may call for a
preliminary conference
to simplify the issues
and determine the
possibility of obtaining
stipulations and
admissions from the
parties.

The hearing shall be


from day to day until
completed and given
the same priority as
petitions for habeas
corpus.
INTERIM RELIEFS SEC. 12 Sec. 14
55

1. Unless for good (a) Temporary


cause shown, the Protection Order.
hearing is adjourned, in
which event the court (b) Inspection Order.
shall make an order for
the safekeeping of the (c) Production Order.
person imprisoned or
restrained as the nature (d) Witness Protection
of the case requires; Order.

2. The court or judge


must be satisfied that
the person's illness is so
grave that he cannot be
produced without any
danger.
JUDGMENT Sec. 15 Sec. 18 Sec. 16

When the court or judge The court shall render Same with WOA with
has examined into the judgment within ten (10) an addition that upon
cause of caption and days from the time the finality, the judgment
restraint of the prisoner, petition is submitted for shall be enforced by
and is satisfied that he decision. If the the sheriff or any
is unlawfully imprisoned allegations in the lawful officers as
or restrained, he shall petition are proven by may be designated
forthwith order his substantial evidence, by the court, justice
discharge from the court shall grant the or judge within 5
confinement, but such privilege of the writ and working days.
discharge shall not be such reliefs as may be
effective until a copy of proper and appropriate;
the order has been otherwise, the privilege
served on the officer or shall be denied.
person detaining the
prisoner. If the officer or
person detaining the
prisoner does not desire
to appeal, the prisoner
shall be forthwith
released.
APPEAL Sec. 15 in relation to Sec. 19 Sec. 19
Sec. 3 Rule 41 and Sec.
39 of BP 129: Rule 45 by petition for Same as WOA
review on certiorari with
48 hours from notice of peculiar features:
judgment appealed from
by ordinary appeal 1. Appeal may raise
questions of fact or law
or both;

2. Period of appeal shall


be 5 working days from
the date of notice of the
adverse judgment;
56

3. Same priority as
habeas corpus cases
INSTITUTION OF Sec. 21 Sec. 20
SEPARATE ACTIONS
This Rule shall not Same as WOA
preclude the filing of
separate criminal, civil
or administrative
actions.
EFFECT OF FILING Sec. 2 Sec. 21
CRIMINAL ACTION
When a criminal action Same as WOA
has been commenced,
no separate petition for
the writ shall be filed.
The reliefs under the
writ shall be available by
motion in the criminal
case.
CONSOLIDATION Sec. 23 Sec. 22

When a criminal action Same as WOA


is filed subsequent to
the filing of a petition for
the writ, the latter shall
be consolidated with the
criminal action.

When a criminal action


and a separate civil
action are filed
subsequent to a petition
for a writ of amparo, the
latter shall be
consolidated with the
criminal action.

 Grant of writ

When court is satisfied that prisoner does not desire to appeal, the prisoner shall be
forthwith released (Sec. 15, Rule 102)

 Period to appeal – within 48 hours from notice of judgment or final order


appealed from (A.M.N. 01-1-03-SC, July 19, 2001).

 Habeas corpus as a post-conviction remedy

The writ of habeas corpus applies to all cases of illegal confinement or detention in
which individuals are deprived of liberty. The writ may not be availed of when the person in
custody is under a judicial process or by virtue of a valid judgment.
However, as a post-conviction remedy, it may be allowed when, as a consequence of a
judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has
57

been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court
had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive,
thus voiding the sentence as to such excess. (Go vs. Dimagiba, G.R. No. 151876, June 21,
2005; Andal v. People, 307 SCRA 605 [1999])

In Evangelista vs. Sistoza (G.R. No. 143881, August 9, 2001), the accused filed a petition
for habeas corpus to secure his release from prison, due to the amendment of PD 1866 by RA
8249, reducing the penalty for illegal possession of low powered firearms -- from reclusion
temporal in its maximum period to reclusion perpetua, to prision correcccional in its maximum
period.The court granted the petition, as he has already served 9 years in prison, more
than the maximum term of his imprisonment for robbery. He need not serve anymore his
sentence of 18 years of reclusion temporal as minumum to reclusion perpetua as maximum for
illegal possession of firearm, in view of said amendment and the ruling in People vs.
Ladjaalam. (G.R. Nos. 136149-51, September 19, 2000).

 Retroactive effect of favorable law - People vs. Caco, 269 SCRA 271 (1997)

1. Caco sentenced to life imprisonment for violation of Dangerous Drugs Act (RA 6425)
2. Filed motion for modification of sentence pursuant to RA 7659 and People v. Simon
that where marijuana less than 200 grams penalty is prision correccional
3. Petition granted – provisions of RA 7659 favorable to accused should be given
retroactive effect.
4. Where decision already final, appropriate remedy of accused to secure release from
prison is petition for habeas corpus

 When constitutional rights disregarded – writ may issue Exceptional remedy


to release a person whose liberty is illegally restrained such as when the constitutional
rights of the accused are disregarded. Such defect results in the absence or loss of
jurisdiction and therefore invalidates the trial and consequent conviction of the accused.
That void judgment may be challenged by collateral attack which precisely is the
function of habeas corpus.

 No right to bail where applicant is serving sentence by reason of final judgment

Respondent judge contends that under Section 14, Rule 102 of the Rules of Court, he
has the discretion to allow Te to be released on bail. However, the Court reiterates its
pronouncement in its Resolution of February 19, 2001 in G.R. Nos. 145715-18 that Section 14,
Rule 102 of the Rules of Court applies only to cases where the applicant for the writ of habeas
corpus is restrained by virtue of a criminal charge against him and not in an instance, as in the
case involved in the present controversy, where the applicant is serving sentence by reason of
a final judgment. (Vicente vs. Majaducon, A.M. No. RTJ-02-1698 (Formerly OCA IPI No. 00-
1024-RTJ), June 23, 2005)

 Effect of filing of charges in court

Bernarte vs. CA, 263 SCRA 323 (1996)

1. Once person detained is duly charged in court, he may no longer


question his detention by petition for habeas corpus
2. Remedy: motion to quash the information and/or warrant of arrest
.
58

Office of the Solicitor General vs. Judge de Castro, A.M. No. RTJ-06-2018 (Formerly Adm.
Matter OCA-IPI No. 05-2360-RTJ), August 3, 2007

Once a person detained is duly charged in court, he may no longer question his
detention through a petition for issuance of a writ of habeas corpus. His remedy would
be to quash the information and/or the warrant of arrest duly issued. The writ of habeas
corpus should not be allowed after the party sought to be released had been charged before
any court. The term “court” includes quasi-judicial bodies or governmental agencies
authorized to order the person’s confinement, like the Deportation Board of the Bureau
of Immigration.
The provisional or temporary release of Gao Yuan also effectively granted the petition for
habeas corpus insofar as the discharge of the detainee is concerned, since the main prayer in
a petition for habeas corpus relates to the release or discharge of the detainee. The general
rule is that the release, whether permanent or temporary, of a detained person renders the
petition for habeas corpus moot and academic

.Go, Sr. vs. Ramos, G.R. No. 167569, September 4, 2009

The writ of habeas corpus should not be allowed after the party sought to be
released had been charged before any court. The term “court” in this context includes
quasi-judicial bodies of governmental agencies authorized to order the person’s confinement,
like the Deportation Board of the Bureau of Immigration. Likewise, the cancellation of his bail
cannot be assailed via a petition for habeas corpus. When an alien is detained by the Bureau
of Immigration for deportation pursuant to an order of deportation by the Deportation Board,
the Regional Trial Courts have no power to release such alien on bail even in habeas corpus
proceedings because there is no law authorizing it.

Larrañaga vs. CA, 287 SCRA 581 (1998) – Kidnapping & serious illegal detention

1. Filing of charges and issuance of warrant of arrest cures defect of


invalid detention
2. Absence of preliminary investigation – will not nullify information and warrant of
arrest

Velasco vs. CA, 245 SCRA 667 (1995)


Even if arrest illegal, supervening events may bar his release or discharge from
custody, such as filing of complaint and issuance of order denying petition to bail.

 Absence of preliminary investigation not ground for habeas corpus

Paredes vs. SB, 193 SCRA 464: absence of preliminary investigation not a ground for habeas
corpus. Remedy: motion to quash warrant of arrest and/or information, or ask for
investigation/reinvestigation

Note: Rule 114, Sec. 26 of 2000 Revised Rules of Criminal Procedure: Bail not a bar
to objections on illegal arrest, lack of or irregular preliminary investigation, provided he raises
them BEFORE entering his plea.

 Habeas corpus and certiorari


Galvez vs. CA, 237 SCRA 685

1. Habeas corpus and certiorari may be ancillary where necessary to give effect to
supervisory power of higher courts
2. Habeas corpus – reaches body and jurisdictional matters but not the records
3. Certiorari – reaches record but not the body
59

4. Not appropriate for asserting right to bail – file petition to be admitted to bail

Section 1, Rule 102 of the Rules of Court provides that a petition for the issuance of a writ
of habeas corpus may be availed of in cases of illegal confinement by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the
person entitled thereto. The writ may also be issued where, as a consequence of a judicial
proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of
a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty
has been imposed, as such sentence is void as to such excess. (In the Matter of the
Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353 in Behalf
of Rogelio Ormilla, et al. vs, The Director, Bureau of Corrections, G.R. No. 170497, January
22, 2007)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting
him for the crimes of carnapping and illegal possession of firearms. He is therefore not entitled
to the writ of habeas corpus.
The rule is that if a person alleged to be restrained of his liberty is in custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of a court of
record the writ of habeas corpus will not be allowed. (Barredo vs. Vinarao,. G.R. No. 168728,
August 2, 2007)

In general, the purpose of the writ of habeas corpus is to determine whether or not a
particular person is legally held. A prime specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint
of liberty. (In the Matter of the Petition of Habeas Corpus of Eufemia Rodriguez vs. Luisa
Villanueva, G.R. No. 169482, January 29, 2008)

Strict compliance with the technical requirements for a habeas corpus petition as provided
in the Rules of Court may be dispensed with where the allegations in the application are
sufficient to make out a case for habeas corpus.
Nonetheless, we agree with the OSG that petitioner is not entitled to the issuance of the
writ. A convict may be released on parole after serving the minimum period of his sentence.
However, the pendency of another criminal case is a ground for the disqualification of such
convict from being released on parole. (Fletcher vs. The Director of Bureau of Corrections,
UDK-14071, July 17, 2009)

The writ of habeas corpus is different from the final decision on the petition for the
issuance of the writ. It is the writ that commands the production of the body of the
person allegedly restrained of his or her liberty. On the other hand, it is in the final decision
where a court determines the legality of the restraint.
Between the issuance of the writ and the final decision on the petition for its issuance, it is
the issuance of the writ that is essential. The issuance of the writ sets in motion the speedy
judicial inquiry on the legality of any deprivation of liberty. Courts shall liberally issue writs of
habeas corpus even if the petition for its issuance "on [its] face [is] devoid of merit[.]" Although
the privilege of the writ of habeas corpus may be suspended in cases of invasion, rebellion, or
when the public safety requires it, the writ itself may not be suspended.
Instead of availing themselves of the extraordinary remedy of a petition for habeas corpus,
persons restrained under a lawful process or order of the court must pursue the orderly course
of trial and exhaust the usual remedies. This ordinary remedy is to file a motion to quash the
information or the warrant of arrest. However, Ilagan and Umil do not apply to this case.
Petitioner Salibo was not arrested by virtue of any warrant charging him of an offense. He was
not restrained under a lawful process or an order of a court. He was illegally deprived of his
liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus. Habeas
60

corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In
such cases, the person is not under any lawful process and is continuously being
illegally detained. (In The Matter of the Petition for Habeas Corpus of Datukan Malang Salibo,
G.R. No. 197597, April 8, 2015 )

Habeas corpus in custody cases

Habeas corpus may be resorted to in cases where rightful custody is withheld from a
person entitled thereto. Under Article 211 of the Family Code, respondent Loran and petitioner
Marie Antonette have joint parental authority over their son and consequently joint custody.
Further, although the couple is separated de facto, the issue of custody has yet to be
adjudicated by the court. In the absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the present case, private respondent’s
cause of action is the deprivation of his right to see his child as alleged in his petition. Hence,
the remedy of habeas corpus is available to him.

In a petition for habeas corpus, the child’s welfare is the supreme consideration. The
Child and Youth Welfare Code unequivocally provides that in all questions regarding the care
and custody, among others, of the child, his welfare shall be the paramount consideration.
(Salientes vs. Abanilla, G.R. No. 162734, August 29, 2006)

A writ of habeas corpus extends to all cases of illegal confinement or detention or by which
the rightful custody of person is withheld from the one entitled thereto. Respondent, as the
judicial guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform
her obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of
habeas corpus after she was unduly deprived of the custody of her ward. (Hernandez vs. San
Juan-Santos, G.R. No. 166470, August 7, 2009)

 Marital rights including co-venture and living in conjugal dwelling may not be
enforced by the extraordinary writ of habeas corpus. (Ilusorio vs. Bildner, et.al.,
G.R. No. 139808, May 12, 2000)

7. Rule on Custody of Minors and Writ of Habeas Corpus in Relation


to Custody of Minors (A.M. No. 03-04-04-SC) – took effect May 15, 2003
a. A verified petition for the rightful custody of a minor may be filed by any person claiming
such right. The petition shall be filed with the Family Court of the province or city where the
petitioner resides or where the minor may be found.
b. After trial, the court shall render judgment awarding custody of the minor to the proper
party considering the best interests of the minor.
c. However, if it appears that both parties are unfit to have the care and custody of the
minor, the court may designate either the paternal or maternal grandparent of the minor or his
oldest brother or sister, or any reputable person to take charge of such minor, or commit him to
any suitable home for children.
d. The court may issue any order that is just and reasonable permitting the parent who is
deprived of the care and custody of the minor to visit or have temporary custody.

 Court of Appeals has jurisdiction to issue writs of habeas corpus in cases


involving custody of minors

There is nothing in RA 8369 which revoked the Court of Appeals’ jurisdiction to issue
writs of habeas corpus involving the custody of minors. (In the Matter of Application for the
Issuance of a Writ of Habeas Corpus: Thornton vs. Thornton, G.R. No. 154598, August 16,
2004) In fact, the Court of Appeals and Supreme Court have concurrent jurisdiction with family
61

courts in habeas corpus cases where the custody of minors is involved. (Madriňan vs.
Madriňan, G.R. No. 159374, July 12, 2007)

N. Writ of Amparo (A.M. No. 07-9-12-SC) - October 24, 2007

Nature of the writ of amparo


The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard
the right of the people to life, liberty and security as enshrined in the 1987 Constitution.The
Rule on the Writ of Amparo was issued as an exercise of the Supreme Court's power to
promulgate rules concerning the protection and enforcement of constitutional rights. It aims to
address concerns such as, among others, extrajudicial killings and enforced disappearances.
(De Lima vs. Gatdula, G.R. No. 204528, February 19, 2013)

The privilege of the writ of amparo is a remedy available to victims of extra-judicial killings
and enforced disappearances or threats of similar nature, regardless of whether the
perpetrator of the unlawful act or omission is a public official or employee or a private
individual. (Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010)

The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs available to
the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable
doubt, or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive proceedings.
(Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

1. Coverage (See Table under Definition)

 “Extralegal killings” – killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings.

 “Enforced disappearances” – attended by the following characteristics: an arrest,


detention or abduction of a person by a government official or organized groups or
private individuals acting with the direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such persons outside the
protection of law.

2. Distinguish from habeas corpus and habeas data (See Table)

3. Differences between Amparo and search warrant

The production order under the Amparo Rule should not be confused with a search warrant
or law enforcement under Art. III, Sec. 2 of the Constitution. The Constitutional provision is a
protection of the people from the unreasonable intrusion of the government, not a protection of
the government from the demand of the people as such respondents. Instead, the amparo
production order may be limited to the production of documents or things under Sec. 1, Rule
27 of the Rules of Civil Procedure (Secretary of National Defense vs. Manalo, G.R. No.
180906, October 7, 2008).

4. Who may file (See Table)


62

5. Contents of return

(a) Lawful defenses to show that respondent did not violate or thereaten with violation the
right to life, liberty or security of the aggrieved party, through any act or omisson .
(b) Steps or actions taken by the respondent to determine the facts or whereabouts of the
aggrieved party and person /s responsible for the threat, act or omission;
(c) All relevant information in the possession of respondent pertaining to the threat, act or
omission against the aggrieved party;
(d) If respondent is a public official or employee, the return shall further state the actions
that have been or will be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the death or disappearance of the person
identified in the petition which may aid in the prosecution of the person or persons
responsible;
(iii) to identify witnesses and obtain statements from them concerning the death or
disappearance
(iv) to determine the cause, manner, location and time of death or disappearance as well
as any pattern or practice that may have brought about the death or disappearance;
(v) to identify and apprehend the person or persons involved in the death or
disappearance; and
(vi) to bring the suspected offenders before a competent court.

A general denial of the allegations in the petition shall not be allowed.

6. Effects of failure to file return (See Table)

7. Omnibus waiver rule


Defenses Not Pleaded Deemed Waived. --All defenses shall be raised in the return,
otherwise, they shall be deemed waived (Sec. 10).

8. Procedure for hearing (See Table on Summary Hearing)

Judgment – Sec. 18 (See Table)


1. The court shall render judgment within ten (10) days from the time the petition is submitted
for decision.
2. If the allegations in the petition are proven by substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and appropriate;
3. Otherwise, the privilege shall be denied.

Appeal – Sec. 19 (See Table)

9. Institution of separate action (See Table)

10. Effect of filing of a criminal action (See Table)

11. Consolidation (See Table)

12. Interim reliefs available to petitioner and respondent (See Table)

13. Quantum of proof in application for issuance of Writ of Amparo


63

Burden of proof and standard of dilligence required – The parties shall establish their
claims by substantial evidence.
Respondent private individual or entity – prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
Respondent public official or employee
– prove that extraordinary diligence as required, etc. was observed in the performance of
duty.
- cannot invoke presumption that official duty has been regularly performed to evade
ressponsibility or liability (Sec. 17)

 Both preventive and curative

It is preventive in that it breaks the expectation of impunity in the commission of these


offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action.

 Jurisprudence

The remedy is initiated through a petition to be filed in a Regional Trial Court,


Sandiganbayan, the Court of Appeals, or the Supreme Court.The judge or justice then makes
an "immediate" evaluation of the facts as alleged in the petition and the affidavits submitted
"with the attendant circumstances detailed". After evaluation, the judge has the option to issue
the Writ of Amparo or immediately dismiss the case. Dismissal is proper if the petition and
the supporting affidavits do not show that the petitioner's right to life, liberty or security is under
threat or the acts complained of are not unlawful. On the other hand, the issuance of the writ
itself sets in motion presumptive judicial protection for the petitioner. The court compels the
respondents to appear before a court of law to show whether the grounds for more permanent
protection and interim reliefs are necessary. (De Lima vs. Gatdula, G.R. No. 204528, February
19, 2013)

The privilege of the Writ of Amparo should be distinguished from the actual order called
the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M.
No. 07-9-12-SC, the Rule on the Writ ofAmparo. After examining the petition and its attached
affidavits, the Return and the evidence presented in the summary hearing, the judgment
should detail the required acts from the respondents that will mitigate, if not totally eradicate,
the violation of or the threat to the petitioner's life, liberty or security. (De Lima vs. Gatdula,
G.R. No. 204528, February 19, 2013)

The writ of amparo partakes of a summary proceeding that requires only substantial
evidence to make the appropriate interim and permanent reliefs available to the petitioner. As
explained in the Decision, it is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or even
administrative responsibility requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court, as first laid down in Razon
v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible under
our usual rules to be admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to
the relevance of the evidence to the issue at hand and its consistency with all other
pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test.
(Rodriguez vs. Arroyo, G.R. No. 191805, April 16, 2013)
64

The Rules on the Writs of Habeas Corpus and Amparo are clear; the act or omission or the
threatened act or omission complained of - confinement and custody for habeas corpus and
violations of, or threat to violate, a person’s life, liberty, and security for amparo cases - should
be illegal or unlawful.
Certainly, with the dismissal of the non-bailable case against accused Guisande, she is no
longer under peril to be confined in a jail facility, much less at the NCMH. Effectively, accused
Guisande’s person, and treatment of any medical and mental malady she may or may not
have, can no longer be subjected to the lawful processes of the RTC Mandaluyong City. In
short, the cases have now been rendered moot and academic (So vs. Tacla, G.R. No.
190108, October 19, 2010)

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right
to life, liberty and security may be caused by either an act or an omission of a public
official. Moreover, in the context of amparo proceedings, responsibility may refer to the
participation of the respondents, by action or omission, in enforced disappearance.
Accountability, on the other hand, may attach to respondents who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of
the enforced disappearance (Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011)

What is prohibited under Section 11 of A.M. No. 07-9-12-SC are motions for
reconsideration directed against interlocutory orders or interim relief orders, not those
assailing the final judgment or order. The pleadings and motions enumerated in Section 11 of
A.M. No. 07-9-12-SC would unnecessarily cause delays in the proceedings; they are, thus,
proscribed since they would run counter to the summary nature of the rule on the writ of
amparo. A motion seeking a reconsideration of a final judgment or order in such case,
obviously, no longer affects the proceedings.
Nevertheless, considering that under Section 19 of A.M. No. 07-9-12-SC a party is only
given five working days from the date of notice of the adverse judgment within which to
appeal to this Court through a petition for review on certiorari, a motion for reconsideration
of a final judgment or order must likewise be filed within the same period. Thereafter,
from the order denying or granting the motion for reconsideration, the party concerned may file
an appeal to the Court via a Rule 45 petition within five working days from notice of the order
pursuant to the fresh period rule
A writ of amparo may still issue in the respondent's favor notwithstanding that he has already
been released from detention. In such case, the writ of amparo is issued to facilitate the
punishment of those behind the illegal detention through subsequent investigation and action.
The writ of amparo likewise covers violations of the right to security. At the core of the
guarantee of the right to security, as embodied in Section 2, Article III of the Constitution, is the
immunity of one's person, including the extensions of his/her person, i.e., houses, papers and
effects, against unwarranted government intrusion. Section 2, Article III of the Constitution not
only limits the State's power over a person's home and possession, but more importantly,
protects the privacy and sanctity of the person himself.
The right to security is separate and distinct from the right to life. The right to life
guarantees essentially the right to be alive - upon which the enjoyment of all other rights is
preconditioned. On the other hand, the right to security is a guarantee of the secure
quality of life, i.e., the life, to which each person has a right, is not a life lived in fear
that his person and property may be unreasonably violated by a powerful ruler.(Mamba
vs. Bueno, G.R. No. 191416, February 7, 2017)

The threatened demolition of a dwelling by virtue of a final judgment of the court is not
included among the enumeration of rights for which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they still have any despite the final and
executory judgment adverse to them, does not constitute right to life, liberty and security.
65

There is, therefore, no legal basis for the issuance of the writ of amparo. (Canlas vs. Napico
Homeowners Association I – XIII, Inc.,. G.R. No. 182795, June 5, 2008)

Under these legal and factual situations, we are far from satisfied with the prima facie
existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than
acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent
incidents alleged appear to us to be purely property-related and focused on the disputed land.
Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally
accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than
on the use of the extraordinary remedy of the writ of amparo. (Tapuz vs. Judge del Rosario,
G.R. No.182484, June 17, 2008)

To start off with the basics, the writ of amparo was originally conceived as a response to
the extraordinary rise in the number of killings and enforced disappearances, and to the
perceived lack of available and effective remedies to address these extraordinary concerns. It
is intended to address violations of or threats to the rights to life, liberty or security, as an
extraordinary and independent remedy beyond those available under the prevailing Rules, or
as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that
are purely property or commercial. Neither is it a writ that we shall issue on amorphous
and uncertain grounds. (Castillo vs. Cruz, G.R. No. 182165, November 25, 2009)

Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal
action have, in the meanwhile, been commenced. The succeeding Sec. 23, on the other hand,
provides that when the criminal suit is filed subsequent to a petition for amparo, the petition
shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern
the disposition of the relief under the Rule.
Rubrico vs. Arroyo, G.R. No. 183871, February 18, 2010

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the
criminal case filed against him was not unlawful. Petitioner has also failed to establish that his
right to travel was impaired in the manner and to the extent that it amounted to a serious
violation of his right to life, liberty and security, for which there exists no readily available legal
recourse or remedy. (Issuance of Hold Departure Order against Fr. Robert Reyes, who was
among those charged with rebellion in connection with the Manila Peninsula siege)
Reyes vs. Gonzales, G.R. No. 182161, December 3, 2009

An inspection order is an interim relief designed to give support or strengthen the claim of a
petitioner in an amparo petition, in order to aid the court before making a decision. A basic
requirement before an amparo court may grant an inspection order is that the place to be
inspected is reasonably determinable from the allegations of the party seeking the order. In this
case, the issuance of inspection order was properly denied since the petitioners specified
several military and police establishments based merely on the allegation that the testimonies
of victims and witnesses in previous incidents of similar abductions involving activists disclosed
that those premises were used as detention centers. In the same vein, the prayer for issuance
of a production order was predicated on petitioners’ bare allegation that it obtained confidential
information from an unidentified military source, that the name of James was included in the
so-called Order of Battle. Indeed, the trial court could not have sanctioned any "fishing
expedition" by precipitate issuance of inspection and production orders on the basis of
insufficient claims of one party.
Balao vs. Arroyo, G.R. No. 186050, December 13, 2011

The Amparo Rule placed a potent safeguard—requiring the "respondent who is a public
official or employee" to prove that no less than "extraordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty." Thus, unless
and until any of the public respondents is able to show to the satisfaction of the amparo court
66

that extraordinary diligence has been observed in their investigations, they cannot shed the
allegations of responsibility despite the prevailing scarcity of evidence to that effect.
With this in mind, We note that extraordinary diligence, as required by the Amparo Rule, was
not fully observed in the conduct of the police and military investigations in the case at bar.
Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

While the right to life under Article III, Section 1 guarantees essentially the right to be alive -
upon which the enjoyment of all other rights is preconditioned - the right to security of person is
a guarantee of the secure quality of this life.
First, the right to security of person is “freedom from fear.” (Universal Declaration of
Human Rights [UDHR] and International Covenant on Civil and Political Rights [ICCPR]) The
Philippines is a signatory to both the UDHR and the ICCPR.
Second, the right to security of person is a guarantee of bodily and psychological
integrity or security. (Article III, Section 12 of the 1987 Constitution)
Third, the right to security of person is a guarantee of protection of one’s rights by
the government. Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of
justice. (The Secretary of National Defense vs. Manalo, G.R. No. 180906, October 7, 2008)

Ku claims that he fears for his life and feels the serious danger of being detained for a long
period of time without any cause, and that he fears that the BI will fabricate criminal cases
against him to hold him under detention. According to Ku, what he seeks to obtain in filing an
amparo petition is the protection it will give to his person against the actions of some
government officials who will likely take advantage of their positions and use the power of the
government at their command. Ku adds that the longer he stays in confinement the more he is
exposed to life-threatening situations and the further the violation of his guaranteed rights.
The allegations of Ku, though, are specious. It is to be noted that the Amparo Rule
requires the parties to establish their claims by substantial evidence. Other than making
unfounded claims, however, Ku was not able to present evidence that he was exposed to “life-
threatening situations” while confined at the BI Detention Center. On the contrary, the records
show that he is afforded visitorial rights and that he has access to his counsel.
Moreover, his primary fear, which prompted him to file the amparo petition, was that the BI
would trump up charges against him so as to justify his detention. The fact remains, however,
that even before his arrest, deportation charges against him were already duly filed and ruled
upon by the BI.
The RTC’s grant of the privilege of the writ of amparo was improper in this case as
Ku and his whereabouts were never concealed, and as the alleged threats to his life,
liberty and security were unfounded and unsubstantiated. It is to be emphasized that the
fundamental function of the writ of amparo is to cause the disclosure of details concerning the
extrajudicial killing or the enforced disappearance of an aggrieved party. As Ku and his
whereabouts were never hidden, there was no need for the issuance of the privilege of the writ
of amparo in the case at bar. (Mison vs. Gallegos, G.R. No. 210759, June 23, 2015 )

O. Writ of Habeas Data (A.M. No. 08-1-16-SC) – February 2, 2008

The writ of habeas data provides a judicial remedy to protect a person’s right to control
information regarding oneself, particularly in instances where such information is being
collected through unlawful means in order to achieve unlawful ends. As an independent and
summary remedy to protect the right to privacy – especially the right to informational
privacy – the proceedings for the issuance of the writ of habeas data does not entail any
67

finding of criminal, civil or administrative culpability. If the allegations in the petition are
proven through substantial evidence, then the Court may (a) grant access to the database or
information; (b) enjoin the act complained of; or (c) in case the database or information
contains erroneous data or information, order its deletion, destruction or rectification.
Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011

The writ of habeas data is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to provide
a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a
person’s right to control information regarding oneself, particularly in instances in
which such information is being collected through unlawful means in order to achieve
unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted,
there must exist a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other.
Gamboa vs. Chan, G.R. No. 193636, July 24, 2012
1. Scope of writ (See Table under Definition)

2. Availability of writ (See Table under Availability)

3. Distinguish from Habeas Corpus and Amparo (See Table)

4. Who may file (See Table)

5. Contents of petition

(a) The personal circumstances of the petitioner and the respondent;


(b) The manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent. In case of threats, the relief may include a prayer for an order enjoining
the act complained of; and
(f) Such other relevant reliefs as are just and equitable (Sec. 6).

Issuance of the Writ - Sec. 6


Upon the filing of the petition,
1. the court, justice or judge shall immediately order the issuance of the writ if on its
face it ought to issue.
2. The clerk of court shall issue the writ under the seal of the court; or in case of urgent
necessity,
3. the justice or the judge may issue the writ under his or her own hand, and may
deputize any officer or person to serve it.

6. Contents of return

(a) Lawful defenses such as national security, state secrets, privileged communication,
confidentiality of the source of information of media and others;
(b) If respondent in charge, in possession or in control of the data or information
subject of the petition --
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(i) a disclosure of the data or information about petitioner, nature of such data or
information, and purpose of its collection;
(ii) steps or actions taken by respondent to ensure the security and confidentiality
of the data or information;
(iii) currency and accuracy of the data and information held; and
(c) other allegations relevant to the resolution of the proceeding;

A general denial of the allegations in the petition shall not be allowed.

 Omnibus waiver rule – Sec. 10


Defenses Not Pleaded Deemed Waived. -- All defenses shall be raised in the return,
otherwise, they shall be deemed waived

7. Instances when petition heard in chambers

Hearing in chambers may be conducted where respondent invokes the defense that
the release of the data or information shall compromise national security or state secrets,
or when the data or information cannot be divulged to the public due its nature or privileged
character (Sec.12).

Judgment – Sec. 18 (See Table)


1. The court shall render judgment within ten (10) days from the time the petition is submitted
for decision.
2. If the allegations in the petition are proven by substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and appropriate;
3. Otherwise, the privilege shall be denied.

Appeal – Sec. 19 (See Table)

8. Consolidation (SeeTable)

9. Effect of filing a criminal action (See Table)

10. Institution of separate action (See Table)

 Jurisprudence

Section 6 of the Rule on the Writ of Habeas Data requires material allegations of ultimate
facts in a petition for the issuance of a writ of habeas data:
Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to
privacy related to the right to life, liberty or security. The petition likewise has not alleged,
much less demonstrated, any need for information under the control of police authorities other
than those it has already set forth as integral annexes. The necessity or justification for the
issuance of the writ, based on the insufficiency of previous efforts made to secure information,
has not also been shown. In sum, the prayer for the issuance of a writ of habeas data is
nothing more than the “fishing expedition” that this Court - in the course of drafting the Rule on
habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In
these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully
in order.
Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008
69

This Court rules that Gamboa was unable to prove through substantial evidence that her
inclusion in the list of individuals maintaining PAGs (private armed groups) made her and her
supporters susceptible to harassment and to increased police surveillance. In this regard,
respondents sufficiently explained that the investigations conducted against her were in
relation to the criminal cases in which she was implicated. As public officials, they enjoy the
presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far
outweighs the alleged intrusion on the private life of Gamboa, especially when the collection
and forwarding by the PNP of information against her was pursuant to a lawful mandate.
Therefore, the privilege of the writ of habeas data must be denied.
Gamboa vs. Chan, G.R. No. 193636, July 24, 2012

Needless to state, an indispensable requirement before the privilege of the writ may be
extended is the showing, at least by substantial evidence, of an actual or threatened violation
of the right to privacy in life, liberty or security of the victim. This, in the case at bench, the
petitioner failed to do.
The main problem behind the ruling of the Court of Appeals is that there is actually no
evidence on record that shows that any of the public respondents had violated or
threatened the right to privacy of the petitioner. The act ascribed by the Court of Appeals to
the public respondents that would have violated or threatened the right to privacy of the
petitioner, i.e., keeping records of investigations and other reports about the petitioner’s ties
with the CPP-NPA, was not adequately proven—considering that the origin of such records
were virtually unexplained and its existence, clearly, only inferred by the appellate court from
the video and photograph released by Representatives Palparan and Alcover in their press
conference. No evidence on record even shows that any of the public respondents had access
to such video or photograph
Roxas vs. Arroyo, G.R. No. 189155, September 7, 2010

Castillo v. Cruz underscores the emphasis laid down in Tapuz v. del Rosario that the writs of
amparo and habeas data will NOT issue to protect purely property or commercial concerns nor
when the grounds invoked in support of the petitions therefor are vague or doubtful.
Employment constitutes a property right under the context of the due process clause of the
Constitution. It is evident that respondent’s reservations on the real reasons for her transfer - a
legitimate concern respecting the terms and conditions of one’s employment - are what
prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such
concerns is inarguably lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that petitioners
committed any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-
vis the right to life, liberty or security. To argue that petitioners’ refusal to disclose the
contents of reports allegedly received on the threats to respondent’s safety amounts to a
violation of her right to privacy is at best speculative. Respondent in fact trivializes these
threats and accusations from unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if they existed at all." And she
even suspects that her transfer to another place of work "betray[s] the real intent of
management]" and could be a "punitive move." Her posture unwittingly concedes that the issue
is labor-related.
Manila Electric Company vs. Lim, G.R. No. 184769, October 5, 2010

The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to
the filing of a petition for the privilege of the writs of amparo and habeas data, not only direct
evidence, but circumstantial evidence, indicia, and presumptions may be considered, so
long as they lead to conclusions consistent with the admissible evidence adduced.
Given that the totality of the evidence presented by the petitioner failed to support his claims
(his inclusion in the “order of battle” and monitoring activities conducted against him), the
reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas
70

data cases does not mean that a claimant is dispensed with the onus of proving his case.
"Indeed, even the liberal standard of substantial evidence demands some adequate evidence."
Saez vs. Arroyo, G.R. No. 183533, September 25, 2012

It thus appears that respondents are not without recourse and have in fact taken full
advantage of the legal system with the filing of civil, criminal and administrative
charges.avvphi1
It need not be underlined that respondents’ petitions for writs of amparo and habeas
data are extraordinary remedies which cannot be used as tools to stall the execution of
a final and executory decision in a property dispute.
At all events, respondents’ filing of the petitions for writs of amparo and habeas data should
have been barred, for criminal proceedings against them had commenced after they were
arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of
the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense
that may be set up by respondents during trial and not before a petition for writs of amparo
and habeas data. The reliefs afforded by the writs may, however, be made available to the
aggrieved party by motion in the criminal proceedings.
Castillo vs. Cruz, G.R. No. 182165, November 25, 2009

Support for the habeas data aspect of the present petition only alleges that:

"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the
PNP may release the report on the burning of the homes of the petitioners and the acts
of violence employed against them by the private respondents, furnishing the Court and
the petitioners with copy of the same;

[…]

66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine
National Police [PNP] to produce the police report pertaining to the burning of the
houses of the petitioners in the land in dispute and likewise the investigation report if an
investigation was conducted by the PNP."

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a
minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete
allegations of unjustified or unlawful violation of the right to privacy related to the right to life,
liberty or security. The petition likewise has not alleged, much less demonstrated, any need for
information under the control of police authorities other than those it has already set forth as
integral annexes.
Tapuz vs. Judge del Rosario, G.R. No.182484, June 17, 2008

The writ of habeas data can be availed of as an independent remedy to enforce one’s
right to privacy, more specifically the right to informational privacy. The remedies against
the violation of such right can include the updating, rectification, suppression or destruction of
the database or information or files in possession or in control of respondents.
STC did not violate petitioners’ daughters’ right to privacy. There can be no quibbling
that the images in question, or to be more precise, the photos of minor students scantily clad,
are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any evidence, other
than bare assertions that they utilized Facebook’s privacy settings to make the photos visible
only to them or to a select few. Without proof that they placed the photographs subject of this
case within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.
Had it been proved that the access to the pictures posted were limited to the original
uploader, through the “Me Only” privacy setting, or that the user’s contact list has been
71

screened to limit access to a select few, through the “Custom” setting, the result may have
been different, for in such instances, the intention to limit access to the particular post, instead
of being broadcasted to the public at large or all the user’s friends en masse, becomes more
manifest and palpable. (Vivares vs. St. Theresa’s College, G.R. No. 202666, September 29,
2014)

As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as “a
remedy available to any person whose right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home, and correspondence of the aggrieved party.” Thus,
in order to support a petition for the issuance of such writ, Section 6 of the Habeas Data Rule
essentially requires that the petition sufficiently alleges, among others, “[t]he manner the
right to privacy is violated or threatened and how it affects the right to life, liberty or
security of the aggrieved party.” In other words, the petition must adequately show that
there exists a nexus between the right to privacy on the one hand, and the right to life,
liberty or security on the other. Corollarily, the allegations in the petition must be supported
by substantial evidence showing an actual or threatened violation of the right to privacy in
life, liberty or security of the victim. In this relation, it bears pointing out that the writ of habeas
data will not issue to protect purely property or commercial concerns nor when the grounds
invoked in support of the petitions therefor are vague and doubtful.

In this case, the Court finds that Ilagan was not able to sufficiently allege that his right
to privacy in life, liberty or security was or would be violated through the supposed
reproduction and threatened dissemination of the subject sex video. While Ilagan
purports a privacy interest in the suppression of this video – which he fears would somehow
find its way to Quiapo or be uploaded in the internet for public consumption – he failed to
explain the connection between such interest and any violation of his right to life, liberty or
security. Indeed, courts cannot speculate or contrive versions of possible transgressions. As
the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the
nexus between one’s privacy right to the cogent rights to life, liberty or security are crucial in
habeas data cases, so much so that a failure on either account certainly renders a habeas
data petition dismissible, as in this case. (Lee vs. Ilagan, G.R. No. 203254, October 8, 2014)

P. Change of Name
Rule 103
Change of Name

 Purpose of Rule

Under Art. 376, Civil Code – no person can change his name or surname without
juridical authority

Involving substantial changes, objective is the prevention of fraud.

 Nature of proceeding

To establish the status of a person involving his relation with others, that is, his legal
position in, or, with regard to the rest of the community

 Who may file petition


“Person” – all natural persons regardless of status. Includes
72

1. Alien - - domiciled in the Philippines, not one temporarily staying (Ong Huan Ting
vs. Rep., G.R. No. L-20997, April 27, 1967)
2. Adopted child (Rep. v. Wong, 209 SCRA 189)

 Venue - Sec. 1
Regional Trial Court of place in which petitioner resides.

 Order for hearing – Sec. 3


1. If petition sufficient in form and substance,
2. The court, by an order reciting the purpose of the petition, shall
a. fix a date and place for the hearing thereof,
b. direct that copy of the order be published at least once a week for 3 successive weeks
in a newspaper of general circulation
3. The date set for hearing shall not be
a. within 30 days prior to an election nor
b. within 4 months after the last publication of the notice

 Jurisdictional requirements
1. Publication of petition for 3 consecutive weeks in newspaper, etc.
2. Both title or caption and body shall recite
a. name or names or alias of applicant
b. cause for which change of name is sought
c. new name asked for

Reason: change of name a matter of public interest


- petitioner might be in rogues gallery or hiding to avoid service of sentence or
escaped from prison
- if alien might have given case for deportation, or subject of deportation order

1. Differences under Rule 103, RA 9048 and Rule 108

Rule 103 Rule 108 R.A. 9048


Rule or Law Change of Name Cancellation/ Correction Clerical Error Act
of Entries in the Civil
Registry
Subject Matter Change of full name or Cancellation or Change of first name or
family name (substantial correction of civil nickname and
corrections) registry entries corrrection of civil
(substantial corrections) registry entries (only
typographical or clerical
errors)
Who may File A person desiring to Any person interested in Any person having
change his name. any act, event, order or direct and personal
(Section 1) decree concerning the interest in the correction
civil status of persons of a clerical or
which has been typographical error in an
recorded in the civil entry and/or change of
register. (Section 1) first name or nickname.
(Section 3)
Venue RTC of the province in RTC of city or province 1. Local civil registry
which petitioner resided where the office of the city or
for 3 years prior to filing. corresponding civil municipality where the
73

registry is located. record being sought to


be corrected or changed
is kept;

2. Local civil registrar of


the place where the
interested party is
presently residing or
domiciled;

3. Philippine Consulate
Contents of petition (a) That petitioner has (a) Facts necessary to
been a bona fide establish the merits of
resident of the province petition;
where the petition is
filed for at least three (b) Particular erroneous
(3) years prior to the entry or entries, which
date of such filing; are sought to be
corrected and/or the
(b) The cause for which change sought to be
the change of made.
petitioner's name is
sought; Petition shall be
supported by the
(c) The name asked for. following documents:
(Section 2)
(1) A certified true
machine copy of the
certificate or of the page
of the registry book
containing the entry or
entries sought to be
corrected or changed;

(2) At least two (2)


public or private
documents showing the
correct entry or entries
upon which the
correction or change
shall be based; and

(3) Other documents


which petitioner or the
city or municipal civil
registrar or the consul
general may consider
relevant and necessary
for the approval of
petition. (Section 5)
Grounds 1. Name is ridiculous, Upon good and valid 1. Petitioner finds the
tainted with dishonor grounds. first name or nickname
and extremely difficult to to be ridiculous, tainted
write of pronounce; with dishonor or
extremely difficult to
74

2. Consequence of write or pronounce;


change of status;
2. The new first name or
3. Necessity to avoid nickname has been
confusion; habitually and
continuously used by
4. Having continuously petitioner and he has
used and been known been publicly known by
since childhood by a that first name or
Filipino name, unaware nickname in the
of her alien parentage; community; or

5. A sincere desire to 3. The change will avoid


adopt a Filipino name to confusion. (Section 4)
erase signs of former
alienage all in good faith
and without prejudicing
anybody.
Kind of proceeding Judicial Proceeding Judicial Proceeding Administrative
Proceeding
Adversarial in nature
because involves
substantial changes and
affects the status of an
individual
What to file File a signed and File a verified petition File an affidavit.
verified petition. for the cancellation or
correction of any entry.
.
Notice and Publication At least once a week for At least once a week for At least once a week for
three consecutive three consecutive two consecutive weeks
weeks in a newspaper weeks in a newspaper (publish the whole
circulation (notice of of general circulation affidavit) – in change of
hearing) (notice of hearing) first name or nickname
Posting No posting No posting Duty of the civil registrar
or Consul to post
petition in a
conspicuous place for
10 consecutive days
Who participates on the The Solicitor General or The Civil Registrar. The CivilRegistrar or
part of the Government the proper provincial or Consul.
city fiscal shall appear
on behalf of the
Government of the
Republic.
Where to appeal: Appeal decision to the Appeal decision to the Appeal decision to the
Court of Appeals. Court of Appeals. Civil Registrar General
(head of NCSO).

2. Grounds for change of name


75

The State has an interest in the names borne by individuals and entities for purposes of
identification. A change of name is a privilege and not a right, so that before a person can be
authorized to change his name, he must show proper or reasonable cause, or any compelling
reason which may justify such change.

Grounds for change of name which have been held valid:


1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce;
2) Change results as a legal consequence, as in legitimation;
3) Change will avoid confusion;
4) When one has continuously used and been known since childhood by a Filipino
name, and was unaware of alien parentage;
5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good
faith and without prejudicing anybody;
6) Surname causes embarrassment and there is no showing that the desired change
of name was for a fraudulent purpose or that the change of name would prejudice
public interest.

Illegitimate child now allowed to use surname of father

N. B. R.A. 9255 amended Article 176 of the Family Code allowing the Illegitimate Child To
Use The Surname Of The Father If The Latter Expressly Recognized Filiation In A Record Of
Birth (approved February 24, 2004). This modifies Leonardo vs. Court of Appeals (G. R. No.
125329, September 10, 2003) disallowing an illegitimate child the right to use his/her father’s
name.

 Other cases

Under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never
recognized by his father while his mother has always recognized him as her child. A change of
name will erase the impression that he was ever recognized by his father. It is also his best
interest as it will facilitate his mother’s intended petition to have him join her in the United
States. The Court will not stand in the way of the reunification of moter and son. (Republic of
the Philippines vs. Capote, G.R. No. 157043, February 2, 2007)

Middle names serve to identify the maternal lineage or filiation of a person as well as
further distinguish him from others who may have the same given name and surname as he
has. In the case at bar, the only reason advanced by petitioner for dropping his middle name
is convenience (In Re Petition for Change of Name and/or Correction/Cancellation of Entry of
Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005)

The court shall grant the petition under Rule 103 only when satisfactory proof has been
presented in open court that the order had been published as directed, the allegations in the
petition are true, and proper and reasonable causes appear for changing the name of the
petitioner. (RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE RTC, BR.
67, PANIQUI, TARLAC, A.M. No. 06-7-414-RTC, October 19, 2007)

A person’s first name cannot be changed on the ground of sex reassignment


Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to
“Mely,” and his sex from “male” to “female.”. Petitioner’s basis in praying for the change of his
first name was his sex reassignment. He intended to make his first name compatible with the
sex he thought he transformed himself into through surgery. However, a change of name does
not alter one’s legal capacity or civil status. RA 9048 does not sanction a change of first name
on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in the civil registry and the
public interest.
76

Before a person can legally change his given name, he must present proper or reasonable
cause or any compelling reason justifying such change. In addition, he must show that he
will be prejudiced by the use of his true and official name. In this case, he failed to show,
or even allege, any prejudice that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first
name was not within that court’s primary jurisdiction as the petition should have been filed with
the local civil registrar concerned, assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had no merit since the use of his
true and official name does not prejudice him at all (Silverio vs Republic, G.R. No. 174689,
October 22, 2007)

Where change of name allowed arising from change of gender


As for respondent’s change of name under Rule 103, this Court has held that a change of
name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons
adduced and the consequences that will follow. The trial court’s grant of respondent’s change
of name from Jennifer to Jeff implies a change of a feminine name to a masculine name.
Considering the consequence that respondent’s change of name merely recognizes his
preferred gender, we find merit in respondent’s change of name. Such a change will conform
with the change of the entry in his birth certificate from female to male. (Republic vs.
Cagandahan, G.R. No. 166676, September 12, 2008)

Q. Absentees
Rule 107
Absentees

1. Purpose of the rule

2. Who may file; when to file

 Provisional representative
When a person disappears from his domicile, his whereabouts being unknown, and
without having left an agent to administer property or the power conferred on the agent has
expired, an interested party, relative or friend may file a petition in the RTC of the place where
the absentee resided before disappearanceo appoint provisionally a representative for him
(Sec. 1).

 Trustee or administrator
After 2 years without any news or after 5 years if an agent was left to administer the
absentee’s property, a petition for declaration of absence and appointment of a trustee or
administrator may be filed.(Sec. 2)

 Notice and publication required


Copies of tne notice and hearing shall be served on known heirs and creditors and
other interested persons and published once a week for 3 consecutive weeks in a newspaper
of general circulation. (Sec. 4)

 Declaration of presumptive death

No independent action for declaration of presumption of death – presumption may arise


and be invoked in an action or special proceeding
77

Exception

Under Art. 41 of Family Code, for purpose of present spouse contracting a second
marriage, he must file summary proceeding for declaration of presumptive death of the
absentee, without prejudice to the latter’s reappearance.

This is intended to protect present spouse from criminal prosecution for bigamy under
Art. 349 of RPC. With judicial declaration that missing spouse is presumptively dead, good
faith of present spouse in contracting marriage is established.

 Period of absence of spouse before subsequent marriage


- 4 consecutive years – well founded belief that absent spouse already dead
- 2 years – danger of death

R. Cancellation or Correction of Entries in the Civil


Registry

Rule 108
Cancellation or correction of entries
in the civil registry

 Who may file petition

1. Any person interested in any


- act
- event
- decree
2. concerning the civil status of persons
3. which has been recorded in the civil registry

 Venue
Regional Trial Court of place where corresponding civil registry is located (Sec. 1)

 Correction of entry under Rule 108 proceeding in rem – publication binds the whole
world

Substantial corrections or cancellations of entries in civil registry records affecting the


status or legitimacy of a person may be effected through the institution of a petition under Rule
108 of the Revised Rules of Court, with the proper Regional Trial Court. Being a proceeding in
rem, acquisition of jurisdiction over the person of petitioner is therefore not required in the
present case. It is enough that the trial court is vested with jurisdiction over the subject matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof
in a newspaper of general circulation in Manila, sufficiently complied with the requirement of
due process, the essence of which is an opportunity to be heard. The publication of the order is
a notice to all indispensable parties, including Armi and petitioner minor, which binds the whole
world to the judgment that may be rendered in the petition. (Alba vs. CA, G.R. No. 164041,
July 29, 2005)

 Indispensable parties must be notified

Under Sec. 3, Rule 108 not only the civil registrar but also all persons who have or claim
any interest which would be affected by a proceeding concerning the cancellation or correction
of an entry in the civil register must be made parties thereto.
No party could be more interested in the cancellation of Rosilyn’s birth certificate than
Rosilyn herself. Her filiation, legitimacy, and date of birth are at stake.
78

The lack of summons on Rosilyn was not cured by the publication of the order of the trial
court setting the case for hearing for three consecutive weeks in a newspaper of general
circulation. Summons must still be served, not for the purpose of vesting the courts with
jurisdiction, but to comply with the requirements of fair play and due process. This is but
proper, to afford the person concerned the opportunity to protect her interest if she so chooses.
(Ceruila vs. Delantar, G.R. No. 140305, December 9, 2005)

1.Entries subject to cancellation or correction under Rule 108, in


relation to RA 9048

 Administrative correction of clerical or typographical errors

The obvious effect of Republic Act 9048 is merely to make possible the administrative
correction of clerical or typographical errors or change of first name or nickname in entries in
the civil register, leaving to Rule 108 the correction of substantial changes in the civil registry in
appropriate adversarial proceedings. (Republic v. Benemerito G.R. No. 146963, March 15,
2004).

Republic Act 9048

 Who may file petition

1. Any person of legal age


2. having direct and personal interest in the
3. correction of a clerical or typographical error in an entry and/or
4. change of first name or nickname in the civil register

A person is considered to have direct and personal interest when he is the owner of the
record, or the owner's spouse, children, parents, brothers, sisters, grandparents, guardian,
or any other person duly authorized by law or by the owner of the document sought to be
corrected:

 Venue
Local Civil Registrar of place where record is located.
Exc. (a) If impractical in terms of transportation expenses, time and effort as where
petitioner has transferred to another place – LCR of petitioner’s residence.
(b) If person presently residing or domiciled in a foreign country -- nearest
Philippine Consulate, or LCR of place where record is located

 Change of name under Rule 108

The enactment in March 2001 of Republic Act No. 9048 has been considered to lend
legislative affirmation to the judicial precedence that substantial corrections to the civil status of
persons recorded in the civil registry may be effected through the filing of a petition under Rule
108. When all the procedural requirements under Rule 108 are thus followed, the appropriate
adversary proceeding necessary to effect substantial corrections to the entries of the civil
register is satisfied.
With respect to the correction in Carlito’s birth certificate of his name from “Carlito John” to
“Carlito,” the same was properly granted under Rule 108 of the Rules of Court. As correctly
pointed out by the CA, the cancellation or correction of entries involving changes of name falls
under letter “o” of the following provision of Section 2 of Rule 108: “Entries subject to
cancellation or correction. — Upon good and valid grounds, the following entries in the civil
register may be cancelled or corrected: x x x (o) changes of name.” Hence, while the
jurisdictional requirements of Rule 103 (which governs petitions for change of name) were not
79

complied with, observance of the provisions of Rule 108 suffices to effect the correction sought
for. (Republic vs. Kho, G.R. No. 170340, June 28, 2007)

 Registered name of illegitimate child

An illegitimate child whose filiation is not recognized by the father bears only a
given name and his mother’s surname, and does not have a middle name. The name of
the unrecognized illegitimate child therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten instrument that he bears both his
mother’s surname as his middle name and his father’s surname as his surname, reflecting his
status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration
in the civil registry of the birth of such individuals requires that the middle name be indicated in
the certificate. The registered name of a legitimate, legitimated and recognized illegitimate
child thus contains a given or proper name, a middle name, and a surname. (In Re: Petition for
Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin
Carulasan Wang, G.R. No. 159966, March 30, 2005).

 No intent on the part of the lawmakers to remove the authority of the trial courts
to make judicial corrections of entries in the civil registry

It can thus be concluded that the local civil registrar has primary, not exclusive,
jurisdiction over such petitions for correction of clerical errors and change of first name or
nickname, with R.A. No. 9048 prescribing the procedure that the petitioner and local civil
registrar should follow. Since R.A. No. 9048 refers specifically to the administrative summary
proceeding before the local civil registrar it would be inappropriate to apply the same
procedure to petitions for the correction of entries in the civil registry before the courts. ( Re:
Final Report on the Judicial Audit Conducted at the Regional Trial Court, Br. 67, Paniqui,
Tarlac, A.M. No. 06-7-414-RTC, October 19, 2007).

 Change of first name is within the primary jurisdiction of the local civil registrar

RA 9048 now governs the change of first name. It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil registrar or consul
general concerned. Under the law, therefore, jurisdiction over applications for change of first
name is now primarily lodged with the aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative petition for change of name is first filed and
subsequently denied. It likewise lays down the corresponding venue, form and procedure. In
sum, the remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial (Silverio vs Republic, G.R. No. 174689, October 22, 2007)

 Change of sex or gender allowed where person has both male and female sexual
characteristics

The trial court ordered the correction of entries in the birth certificate of respondent to
change her sex or gender, from female to male, on the ground of her medical condition known
as Congenital Adrenal Hyerplasia (CAH), and her name from “Jennifer” to “Jeff,” under Rules
103 and 108 of the Rules of Court. xxx CAH is one of many conditions that involve intersex
anatomy. The term “intersexuality” applies to human beings who cannot be classified as either
male or female. We respect respondent’s congenital condition and his mature decision to be a
male. Where the person is biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having reached the age of majority,
with good reason thinks of his/her sex. Respondent here thinks of himself as a male and
80

considering that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual development in
cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent, is fixed (Republic vs. Jennifer Cagandahan,
G.R. No. 166676, September 12, 2008).

 No law allows the change of entry in the birth certificate as to sex on the ground
of sex reassignment.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include
even those that occur after birth. However, no reasonable interpretation of the provision can
justify the conclusion that it covers the correction on the ground of sex reassignment. To
correct simply means “to make or set aright; to remove the faults or error from” while to change
means “to replace something with something else of the same kind or with something that
serves as a substitute.” The birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct. No correction is
necessary.
While petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis for his petition for the correction or change
of the entries in his birth certificate. (Silverio vs Republic, G.R. No. 174689, October 22, 2007)

 Administrative correction of (a) day and month in the date of birth and (b) sex of
a person now allowed - provided it is patently clear that there was a clerical or
typographical error or mistake in the entry (RA 10172, September 8, 2012)

 Other Jurisprudence

Ty Kong Tin (1954): followed by Chua Wee vs. Rep., Wong vs. Rep., Rep. vs. Medina –
Rule 108 should be limited solely to implementation of Art. 412, the substantive law on the
matter of correcting errors in the civil register.

Art. 412 contemplates a summary procedure, involving correction of clerical errors, or a


harmless, innocuous nature, not changes involving civil status, nationality or citizenship, which
are substantial and/or controversial

Rep. vs. Macli-ing – proceedings, although filed under Rule 108, not summary because
published for 3 consecutive weeks; SolGen notified and filed opposition, etc.

Rep. vs. Valencia (141 SCRA 462 [1986]) – turning point, paradigm shift:
Rule 108 embodies two kinds of proceedings:
1. procedure summary in nature for correcting clerical or unsubstantial matters to
make it less tedious and expensive
2. procedure adversary in nature to govern proceedings involving substantial changes

If all procedural requirements have been followed, petition for correction/or


cancellation even if filed under Rule 108 no longer summary.

Even substantial errors may be corrected and true facts established prov. parties
aggrieved by the error avail of the appropriate adversary proceeding.

 Appropriate proceeding:
a. where all relevant facts have been fully weighed and considered
81

b. where opposing counsel have been given opportunity to demolish the opposing
party’s case
c. where evidence has been thoroughly weighed and considered

 Procedure becomes ADVERSARY proceedings when opposition to petition is


filed by LCR or any person having or claiming interest in entries sought to be
cancelled and/ or corrected and opposition is actively prosecuted.

 Substantial corrections allowed: citizenship from Chinese to Filipino; status


from legitimate to illegitimate’ status of mother from married to single

 Valencia ruling (en banc) reiterated in Chia Ben Lim vs. Zosa (en banc),
Rep. vs. Bautista and Zapanta vs. LCR of Davao

 Attempts to revert to Ty Kong Tin – Labayo Rowe vs. Rep., Leonor vs. CA
and Rep. vs. Labrador

However, all doubts resolved in Lee vs. CA (367 SCRA 110 [2001]):
1. Substantial corrections – Rule 108
2. Clerical or typographical errors (including change of first name) – RA 9048
(administrative correction)

Substantial corrections
“Appropriate adversary proceeding” is “one having opposing parties; contested, as
distinguished from an ex parte application, one of which the party seeking relief has given legal
warning to the other party, and afforded the latter an opportunity to contest it.”
When all the procedural requirements under Rule 108 are thus followed, the appropriate
adversary proceeding necessary to effect substantial corrections to the entries of the civil
register is satisfied.
No substantial change or correction in an entry in a civil register can be made without a
judicial order, and, under the law, a change in citizenship status is a substantial change.
(Republic vs. Kho, G.R. No. 170340, June 29, 2007)

N.B. A correction is SUBSTANTIAL OR CONTROVERSIAL if it involves the change of the


age, sex, nationality or civil status of a person. (Rule 11.1.2, Implementing Rules and
Regulations, RA 9048)

Republic Act No. 9048 provides in Section 2 (3) that a summary administrative proceeding
to correct clerical or typographical errors in a birth certificate cannot apply to a change in
nationality. Substantial corrections to the nationality or citizenship of persons recorded in the
civil registry should, therefore, be effected through a petition filed in court under Rule 108 of
the Rules of Court. (Kilosbayan Foundation vs. Ermita, G.R. No. 177721, July 3, 2007)

The local civil registrar has primary, not exclusive, jurisdiction over such petitions for
correction of clerical errors and change of first name or nickname, with R.A. No. 9048
prescribing the procedure that the petitioner and local civil registrar should follow. (Re: Final
Report on the Judicial Audit Conducted at the RTC, BR. 67, Paniqui, Tarlac, A.M. No. 06-7-
414-RTC, October 19, 2007)

S. Appeal in Special Proceedings


Rule 109
82

Appeals in special proceeding

1. Judgments and orders for which appeal may be taken

2. When to appeal

Sec. 1. Any INTERESTED PERSON may appeal from an order or judgment rendered by the
RTC, where such order or judgment

1. Allows or disallows a WILL


2. Determines who are the lawful heirs of a deceased or the DISTRIBUTIVE SHARE of
the estate to which he is entitled
3. Allows or disallows, in whole and any part, any CLAIM against the estate, or any
CLAIM presented in behalf of the estate IN OFFSET to any claim against it
4. Settles the ACCOUNT of an executor, administrator, trustee or guardian
5. Constitutes, in proceedings relating to the SETTLEMENT of the estate of the deceased,
or the ADMINISTRATION of a trustee or guardian, a FINAL DETERMINATION in the
lower court of the rights of the party appealing. Exception: no appeal from appointment
of special administrator.
6. Is the FINAL ORDER or JUDGMENT rendered in the case, and affects the
SUBSTANTIAL RIGHTS of the person appealing. Unless it be an order granting or
denying a motion for new trial or reconsideration – Sec. 1 (a), Rule 41: no appeal may
be taken from an order denying a motion for new trial or reconsideration.

 In certain kinds of special proceedings, such as settlement of estate, appeal may


be taken at various stages of the proceedings.

3. Modes of appeal

Rules 40, 41, 42 and 45 apply in conformity with Rule 72, Sec. 2 (applicability of rules of
civil actions). If it is an ordinary appeal under Rules 40 or 41, and the special proceedings are
subject to multiple appeals, like settlement of estates, the appeal period is 30 days, a notice of
appeal and record on appeal being required.

Rationale for multiple appeals


The rationale behind allowing more than one appeal in the same case is to enable the rest
of the case to proceed in the event that a separate and distinct issue is resolved by the court
and held to be final. In this multi-appeal mode, the probate court loses jurisdiction only over
the subject matter of the appeal but retains jurisdiction over the special proceeding from which
the appeal was taken for purposes of further remedies the parties may avail of.
Where multi-appeals are allowed, we see no reason why a separate petition for certiorari
cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an
issue from the aspect of the case that has been adjudged with finality by the lower court.
(Briones vs. Henson-Cruz, G.R. No. 159130, August 22, 2008) - LPB

Record of appeal is required only in cases where multiple appeals may arise
Rule 109 contemplates multiple appeals during the pendency of special proceedings. A
record on appeal – in addition to the notice of appeal – is thus required to be filed as the
original records of the case should remain with the trial court to enable the rest of the case to
proceed in the event that a separate and distinct issue is resolved by said court and held to be
final.
In the present case, the filing of a record on appeal was not necessary since no other matter
remained to be heard and determined by the trial court after it issued the appealed
83

order granting respondent’s petition for cancellation of birth record and change of surname in
the civil registry.(Republic vs. Nishina, G.R. No. 186053, November 15, 2010)

4. Rule on advance distribution


Notwithstanding a pending controversy or appeal in prccedings to settle the estate of a
decedent, the court may, in its discretion and upon such terms as it may deem proper and just,
permit that such part of the estate as may be affected by the controversy or appeal be
distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule
90.
Rule 90, Sec. 1 - Distribution before payment of obligations is allowed provided
distributees give BOND conditioned for payment thereof within such time as court directs.

VENUE OF SPECIAL PROCEEDINGS

1. Settlement of estate (Rule 73):


RTC (or MTC) of province where deceased last resided/property situated.

2. Escheat (Rule 91):


RTC of province where deceased last resided/property situated.

3. Guardianship:
(Rule on Guardianship of Minors [A.M. No. 03-02-05-SC])
Family Court of province or city where minor resides/property situated.

Rule 92
RTC of province or city where incompetent resides/property situated.

4. Adoption (Rule on Adoption [A.M. No. 02-6-02-SC]):


Family Court of province or city where prospective adoptive parents reside.
Rescission – where adoptee resides.

5. Habeas Corpus (Rule 102):


If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent
jurisdiction. However, the writ of habeas corpus issued by the RTC shall be
enforceable only within its judicial region (Sec. 21, BP 129).

Habeas Corpus for custody of minors:


Family courts have exclusive jurisdiction (Family Courts Act of 1997 [RA 8309].
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in relation
to Custody of Minors (A.M. No. 03-04-04-SC), the petition may be filed with SC, CA or
any of its members, and the writ shall be enforceable anywhere in the Philippines.

6. Amparo (A.M. No. 07-9-12-SC)


SC, CA and SB

RTC of the place where the threat, act or omission was committed or any of its
elements occurred

7. Habeas Data (A.M. No. 08-1-16-SC)


SC, CA and SB
RTC:
1. Where petitioner resides; or
84

2. Where respondent resides; or


3. Which has jurisdiction over the place where data or information is gathered, etc.
All at the option of petitioner.

8. Kalikasan (A.M. No. 09-6-8 – SC)


SC and CA

9. . Change of name (Rule 103):


RTC of province of residence of petitioner.

Absentees (Rule 107):


RTC of place where absentee resided before his disappearance.

10. Cancellation or correction of entries (Rule 108):


RTC of place where civil registry is located.

Correction of clerical or typographical errors (RA 9048):


Local Civil Registrar of place where record is located.
Exc. – if impractical in terms of transportation expenses, time and effort as where
petitioner has transferred to another place – Local Civil Registrar of petitioner’s
residence.

SPECIAL PROCEEDINGS THAT REQUIRE NO PUBLICATION

1. Guardianship
2. Trustees
3. Custody of minors
4. Hospitalization of insane persons
5. Rescission of adoption
6. Administrative cancellation or correction of entries
7. Habeas corpus
8. Writ of amparo
9. Writ of habeas data
10. Writ of kalikasan
11. Petitions for foster care and temporary custody
12. Cases of domestic violence against women and children
13. Summary proceedings

-------------------------------------------------------------

2017 REMEDIAL LAW BAR SYLLABUS

7. REVISED RULE ON SUMMARY PROCEDURE (November 15, 1991)

A. Cases Covered by the Rule

Civil Cases
85

1. Forcible entry and unlawful detainer cases, irrespective of the amount of damages or unpaid
rentals sought to be recovered; where awarded, attorney’s fees shall not exceed twenty
thousand pesos (P20,000.00).
2. All other civil cases, except probate proceedings, where the total amount of the plaintiff's
claim does not exceed one hundred thousand pesos (P100,000.00) and two hundred thousand
pesos (P200,000.00) in Metro Manila exclusive of interest and costs.(A.M. No. 02-11-09-SC,
November 25, 2002)
.

Criminal Cases
1. Violations of traffic laws, rules and regulations
2. Violations of the rental law
3. Violations of municipal or city ordinances
4. Violations of Batas Pambansa Blg. 22 (Bouncing Checks Law) (A.M. No. 00-11-01-SC,
March 30, 2003)
5. All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, that in offenses involving damage to property through criminal
negligence, the Rule shall govern where the imposable fine does not exceed ten thousand
pesos (P10,000.00).
This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the
same complaint with another cause of action subject to the ordinary procedure; nor to a
criminal case where the offense charged is necessarily related to another criminal case subject
to the ordinary procedure.

CIVIL CASES

B. Pleadings Allowed

In civil cases the only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers thereto.

C. Effect of Failure to Answer

Under Section 6, should the defendant fail to answer the complaint within ten (10) days from
service of summons, the court, motu proprio, OR on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is
prayed for therein.

D. Preliminary Conference and Appearances of Parties

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

Plaintiff’s failure to appear in the preliminary conference shall be a cause for the dismissal of
his complaint.

The defendant who appears in the absence of the plaintiff shall be entitled to judgment on
his counterclaim in accordance with Section 6 hereof. All cross-claims shall be dismissed
(Section 7).

E. Submission of Affidavits and Position Papers


86

Within ten (10) days from receipt of the record of preliminary conference (which the court
must issue within five (5) days after the termination of the preliminary conference), the
parties shall submit the affidavits of their witnesses and other evidence on the factual issues
defined in the order, together with their position papers setting forth the law and the facts
relied upon by them. (Section 9)

F. Rendition of Judgment.
Within thirty (30) days after receipt of the last affidavits and position papers, or the expiration
of the period for filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain material facts, it may, during the
said period, issue an order specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days after the receipt of the last
clarificatory affidavits, or the expiration of the period for filing the same.
The court shall not resort to clarificatory procedure to gain time for the rendition of the
judgment. (Section 10)

CRIMINAL CASES

G. Arraignment and Trial.

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

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he
enters a plea of guilty, he shall forthwith be sentenced. (Section 13)

H. Preliminary Conference

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

I. Procedure of Trial

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

.
J. Arrest of Accused

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

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

COMMON PROVISIONS

L. Prohibited Pleadings and Motions

(a) Motion to dismiss the complaint or to quash the complaint or information except on
the ground of lack of jurisdiction over the subject matter, or failure to comply with
the preceding section (Barangay Conciliation)
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in default;
(I) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions. (Section 19)

M. Appeal

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

8. KATARUNGANG PAMBARANGAY LAW (P.D. No. 1508; R.A. 7610, as


amended)

A. Cases Covered

General Rule – Pursuant to the Revised Katarungang Pambarangay Law, ALL disputes are
subject to Barangay Conciliation; such prior recourse is a pre-condition before filing a
complaint in court or any government offices.

Exceptions
1. Where one party is the government or any subdivision or instrumentality thereof
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5,000.00
4. Offenses where there is no private offended party (e.g. genocide)
5. Where the dispute involves real properties located in different cities or municipalities
UNLESS the parties thereto agree to submit their differences to amicable settlement by
an appropriate lupon
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6. Disputes involving parties who actually reside in barangays of different cities or


municipalities, EXCEPT:
a. Where such barangay units adjoin each other
b. The parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon
7. Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically the following:
a. Criminal cases where accused is under police custody or detention [Sec. 412 (b) (1),
Revised Katarungang Pambarangay Law]
b. Petitions for habeas corpus by a person illegally deprived of his rightful custody
over
another or a person illegally deprived of or on acting in his behalf
c. Actions coupled with provisional remedies such as preliminary injunction,
attachment,
delivery of personal property and support during the pendency of the action
d. Actions which may be barred by the Statute of Limitations
8. Such other classes of disputes which the President may determine in the interest of
justice
9. Where one of the parties is a juridical entity
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL) [Secs.
46 & 47, R. A.6657]
11. Labor disputes or controversies arising from employer-employee relations. Art. 226,
Labor Code; Montoya v. Escayo, et. al. [171 SCRA 442]
12. Actions to annul judgment upon a compromise which may be filed directly in court.
Sanchez v. Tupaz, [158 SCRA 459]

B. Subject matter for amicable settlement

At any time before trial, the court may, motu proprio, refer the case concerned to the lupon
for amicable settlement non criminal cases not falling within the authority of the latter; or
while the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for
offenses and cause of action under existing laws shall be interrupted upon filing of the
complaint with the punong barangay. Such interruption shall not exceed sixty (60) days
from the time of the filing of the complaint with the punong barangay.

C. Venue

1. Disputes between residents of the same barangay shall be brought for settlement before
lupon of said barangay
2. Residents of different barangays within the same city or municipality – in the barangay
where the respondent or any of the respondents reside at the election of the complainant
3. Disputes involving real property or any interest therein – where real property or larger
portion thereof is situated
4. Disputes arising at the workplace where the contending parties are employed or at the
institution where such parties are enrolled for study – in the barangay where such
workplace or institution located

D. When the Parties May Directly Go to Court

1.
2. Where the person has otherwise been deprived of personal liberty calling for habeas
corpus proceeding
3. Where the actions are coupled with provisional remedies such as preliminary injunction,
attachment, delivery of personal property, and support pendente lite
89

4. Where the action may otherwise be barred by the statute of limitations


5. Labor disputes
6. Any class of dispute which the President may determine in the interest of justice or
upon recommendation of the secretary of Justice
7. CARL disputes
8. Disputes involving the traditions of indigenous cultural community
9. Actions to annul judgment upon a compromise.

E. Execution

At any stage of the proceedings, the parties may agree in writing to have the matter in
dispute decided by arbitration by either the Lupong Barangat or Pangkat. In such case
arbitrational hearings shall follow order of adjudicative trials.

F. Repudiation

The settlement and arbitration agreement may be repudiated on the ground that consent is
vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint in court or any government office for
adjudication.

9. RULE OF PROCEDURE FOR SMALL CLAIMS (A.M. No. 08-8-7-SC,


October 1, 2008), Revised Rules of Procedure for Small Claims
Cases (A.M. No. 08-8-7-SC), effective February 1, 2016.

A. Scope and applicability of the rule

Scope

This Rule shall govern the procedure in actions before the Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim does not exceed Two Hundred Thousand
Pesos (P200,000.00) exclusive of interest and costs.

Applicability
The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall apply this Rule in all actions, which are:
1. Purely civil in nature, where the claim or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money
2. The civil aspect of criminal actions, either filed before the institution of the criminal
action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of
the Revised Rules of Criminal Procedure

B. Commencement of small claims action; response

Small claims action is commenced by filing with the court an accomplished and verified
Statement of Claim (Form 1-SCC) in duplicate, accompanied by a Certification of Non-
forum Shopping (Form 1-A, SCC), and two (2) duly certified photocopies of the actionable
document/s subject of the claim, as well as the affidavits of witnesses and other evidence
to support the claim.
90

No evidence shall be allowed during the hearing which was not attached to or submitted
together with the Claim, unless good cause is shown for the admission of additional
evidence.

Under Section 5, no formal pleading, other than the Statement of Claim described in this
Rule, is necessary to initiate a small claims action.

The defendant shall file with the court and serve on the plaintiff a duly accomplished and
verified Response within a non-extendible period of ten (10) days from receipt of summons.
The Response shall be accompanied by certified photocopies of documents, as well as
affidavits of witnesses and other evidence in support thereof.

No evidence shall be allowed during the hearing which was not attached to or submitted
together with the Response, unless good cause is shown for the admission of additional
evidence.

The grounds for the dismissal of the claim, under Rule 16 of the Rules of Court, should be
pleaded.

Should the defendant fail to file his Response within the required period, and likewise fail to
appear at the date set for hearing, the court shall render judgment on the same day, as may
be warranted by the facts.

Should the defendant fail to file his response within the required period but appears at the
date set for hearing, the court shall ascertain what defense he has to offer and proceed to
hear, mediate and adjudicate the case on the same day as if a response has been filed.

C. Prohibited pleadings and motions

Under Section 14, the following pleadings, motions, or petitions shall not be allowed
in the cases covered by this Rule:
1. Motion to dismiss the complaint
2. Motion for a bill of particulars
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file pleadings, affidavits, or any other paper
6. Memoranda
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued
by the court
8. Motion to declare the defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions

D. Appearances

Attorneys
No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is
the plaintiff or defendant.

If the court determines that a party cannot properly present his/her claim or defense and
needs assistance, the court may, in its discretion, allow another individual who is not an
attorney to assist that party upon the latter’s consent.
91

Parties
Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice.
The defendant who appears shall be entitled to judgment on a permissive counterclaim.

Failure of the defendant to appear shall have the same effect as failure to file a Response
under Section 12 of this Rule, wherein the court, by itself, shall render judgment as may be
warranted by the facts alleged in the Statement of Claim limited to what is prayed for. The
Court, however, may, in its discretion, reduce the amount of damages for being excessive or
unconscionable.

Failure of both parties to appear shall cause the dismissal with prejudice of both the claim and
counterclaim.

E. Hearing; Duty of the Judge

At the hearing, the judge shall conduct Judicial Dispute Resolution (JDR) through mediation,
conciliation, early neutral evaluation, or any other mode of JDR.

Any settlement (Form 7- SCC) or resolution (Form 8-SCC) of the dispute shall be reduced
into writing, signed by the parties and submitted to the court for approval (Form 12-SCC)
(Section 21)

F. Finality of Judgment

After the hearing, the court shall render its decision on the same day, based on the facts
established by the evidence (Form 13-SCC).

The decision shall immediately be entered by the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the parties.

Under Section 23, the decision shall be final and unappealable.

10. RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M. No.


09-6-8-SC, April 29, 2010)

A. Scope and Applicability of the Rule

These Rules shall govern the procedure in civil, criminal, and special civil actions before the
Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules and regulations such as but not limited to the
following:

1. Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees
2. P.D. No. 705, Revised Forestry Code
3. P.D. No. 856, Sanitation Code
4. P.D. No. 979, Marine Pollution Decree
5. P.D. No. 1067, Water Code
6. P.D. No. 1151, Philippine Environmental Policy of 1977
7. P.D. No. 1433, Plant Quarantine Law of 1978
8. P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other
Environmental Management Related Measures and for Other Purposes
9. R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or
Growing Trees,Flowering Plants and Shrubs or Plants of Scenic Value along Public
Roads, in Plazas, Parks, School Premises or in any Other Public Ground
92

10.R.A. No. 4850, Laguna Lake Development Authority Act


11.R.A. No. 6969, Toxic Substances and Hazardous Waste Act
12.R.A. No. 7076, People’s Small-Scale Mining Act
13.R.A. No. 7586, National Integrated Protected Areas System Act including all laws,
decrees, orders, proclamations and issuances establishing protected areas
14. R.A. No. 7611, Strategic Environmental Plan for Palawan Act
15. R.A. No. 7942, Philippine Mining Act;
16. R.A. No. 8371, Indigenous Peoples Rights Act
17. R.A. No. 8550, Philippine Fisheries Code
18. R.A. No. 8749, Clean Air Act
19. R.A. No. 9003, Ecological Solid Waste Management Act
20. R.A. No. 9072, National Caves and Cave Resource Management Act
21. R.A. No. 9147, Wildlife Conservation and Protection Act
22. R.A. No. 9175, Chainsaw Act
23. R.A. No. 9275, Clean Water Act
24. R.A. No. 9483, Oil Spill Compensation Act of 2007
25. Provisions in C.A. No. 141, The Public Land Act; R.A.No. 6657, Comprehensive Agrarian
Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161,
Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws
(Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No.
7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act;
R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The
Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008;
R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the environment
and natural resources.

B. Civil Procedure

1. Prohibition against temporary restraining order and preliminary


injunction

Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction
against lawful actions of government agencies that enforce environmental laws or
prevent violations thereof.

2. Pre-trial conference; consent decree

The parties and their counsels shall remain under oath in all pre-trial conferences.

Judge to persuade the parties to arrive at a settlement of the dispute; former may issue
a consent decree approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the people to a balanced
and healthful ecology.

Evidence not presented during the pre-trial, except newly discovered evidence, shall be
deemed waived.

3. Prohibited pleadings and motions

1. Motion to dismiss
2. Motion for extension of time to file return
3. Motion for postponement
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim
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6. Third-party complaint
7. Reply
8. Motion to declare respondent in default

4. Temporary environmental protection order (TEPO)

a) Issuance

If it appears from the verified complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge of the
multiplesala court before raffle or the presiding judge of a single-sala court as the case
may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date
of the receipt of the TEPO by the party or person enjoined. Within said period, the court
where the case is assigned, shall conduct a summary hearing to determine whether the
TEPO may be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts
that are the subject matter of the TEPO even if issued by the executive judge, and may
lift the same at any time as circumstances may warrant.

The applicant shall be exempted from the posting of a bond for the issuance of a
TEPO.

b) Dissolution

The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party
or person enjoined which the applicant may oppose, also by affidavits.

The TEPO may be dissolved if it appears after hearing that its issuance or continuance
would cause irreparable damage to the party or person enjoined while the applicant
may be fully compensated for such damages as he may suffer and subject to the
posting of a sufficient bond by the party or person enjoined.

5. Judgment and execution; reliefs in a citizen’s suit

a) Reliefs in a Citizen Suit

If warranted, the court may grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and the payment of
attorney’s fees, costs of suit and other litigation expenses.
It may also require the violator to submit a program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the violator, or to contribute to a
special trust fund for that purpose subject to the control of the court.

b) Judgment Not Stayed by Appeal

Any judgment directing the performance of acts for the protection, preservation or
rehabilitation of the environment shall be executory pending appeal unless restrained
by the appellate court.

6. Permanent environmental protection order; writ of continuing


mandamus
94

In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of
continuing mandamus directing the performance of acts which shall be effective until
the judgment is fully satisfied.

The court may, by itself or through the appropriate government agency, monitor the
execution of the judgment and require the party concerned to submit written reports on
a quarterly basis or sooner as may be necessary, detailing the progress of the
execution a satisfaction of the judgment.

The other party may, at its option, submit its comments or observations on the
execution of the judgment.

7. Strategic lawsuit against public participation

A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that
any person, institution or the government has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion of environmental rights
shall be treated as a SLAPP and shall be governed by these Rules.

C. Special Proceedings

1. Writ of Kalikasan

a) Nature of the Writ

The writ is a remedy available to a natural or juridical person, entity authorized by law,
people’s organization, non-governmental organization, or any public interest group
accredited by or registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or employee, or private
individual or entity, involving environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or provinces.

b) Contents of the Verified Petition

1. The personal circumstances of the petitioner


2. The name and personal circumstances of the respondent or if the name and personal
circumstances are unknown and uncertain, the respondent may be described by an
assumed appellation
3. The environmental law, rule or regulation violated or threatened to be violated, the act
or omission complained of, and the environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two or more cities or provinces
4. All relevant and material evidence consisting of the affidavits of witnesses,
documentary evidence, scientific or other expert studies, and if possible, object
evidence
5. The certification of petitioner under oath that:
a) Petitioner has not commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency, and no such other action or claim
is pending therein
b) If there is such other pending action or claim, a complete statement of its present
status; (3) if petitioner should learn that the same or similar action or claim has been
filed or is pending, petitioner shall report to the court that fact within five (5) days
therefrom; and
6. The reliefs prayed for which may include a prayer for the issuance of a TEPO.
95

c) Where to File

The petition shall be filed with the Supreme Court or with any of the stations of the
Court of Appeals.

d) No Docket Fees

The petitioner shall be exempt from the payment of docket fees.

e) Issuance of the Writ

Within three (3) days from the date of filing of the petition, if the petition is sufficient in
form and substance, the court shall give an order issuing the writ
And requiring the respondent to file a verified return as provided in Section 8 of this
Rule.

The clerk of court shall forthwith issue the writ under the seal of the court including the
issuance of a cease and desist order and other temporary reliefs effective until further
order.

f) How the Writ is Served

The writ shall be served upon the respondent by a court officer or any person deputized
by the court, who shall retain a copy on which to make a return of service.

In case the writ cannot be served personally, the rule on substituted service shall apply.

2. Prohibited pleadings and motions

1. Motion to dismiss
2. Motion for extension of time to file return
3. Motion for postponement
4. Motion for a bill of particulars
5. Counterclaim or cross-claim
6. Third-party complaint
7. Reply
8. Motion to declare respondent in default

3. Discovery Measures

A Party May File A Verified Motion For the Following Reliefs:


1. Ocular Inspection; order — The motion must show that an ocular inspection order is
necessary to establish the magnitude of the violation or the threat as to prejudice the life,
health or property of inhabitants in two or more cities or provinces. It shall state in detail the
place or places to be inspected. It shall be supported by affidavits of witnesses having
personal knowledge of the violation or threatened violation of environmental law. After
hearing, the court may order any person in possession or control of a designated land or
other property to permit entry for the purpose of inspecting or photographing the property or
any relevant object or operation thereon. The order shall specify the person or persons
authorized to make the inspection and the date, time, place and manner of making the
inspection and may prescribe other conditions to protect the constitutional rights of all
parties.
96

2. Production or inspection of documents or things; order – The motion must show that a
production order is necessary to establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or more cities or provinces. After
hearing, the court may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to the
petition or the return, to produce and permit their inspection, copying or photographing by or
on behalf of the movant. The production order shall specify the person or persons authorized
to make the production and the date, time, place and manner of making the inspection or
production and may prescribe other conditions to protect the constitutional rights of all
parties.

*** WRIT OF KALIKASAN


What is the Writ of Kalikasan?

It is a special remedy available to a natural or juridical person, entity authorized by law,


people’s organization, non-governmental organization, or any public interest group accredited
by or registered with any government agency, on behalf of persons whose constitutional right
to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act
or omission of a public official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M. No. 09-6-8-SC).

Who may avail of the writ?

The petition can be filed by the following:


a. A natural or juridical person;
b. Entity authorized by law; or
c. POs, NGOs or any public interest group accredited by or registered with any
government agency on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated (Sec. 1, Rule 7, A.M. No. 09-6-8-SC 7).

Where should the petition be filed?

Supreme Court or Court of Appeals (Sec. 3, Rule 7, A.M. No. 09-6-8-SC 7).

What is the magnitude of environmental damage in a writ of kalikasan?

It must be of environmental damage of such magnitude as to prejudice the life, health or


property of inhabitants in two or more cities or provinces (Sec. 1, Rule 7, A.M..No. 09-6-8-SC).

Is the petitioner required to pay docket fees?

No, the petitioner is exempt from payment of docket fees (Sec. 4, Rule , A.M. No. 09-6-8-SC
7).

The exemption encourages the public to avail of the remedy.

Within what time should the issuance of the writ be made?


97

Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and
substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent
to file a verified return as provided in Section 8 of Rule 8 (Sec. 5, Rule 7, A.M. No. 09-6-8-SC

What shall the return contain?

Within a non-extendible period of ten (10) days after service of the writ, the respondent shall
file a verified return which shall contain all defenses to show that respondent did not
a. violate or
b. threaten to violate, or
c. allow the violation of any environmental law, rule or regulation or
d. commit any act
resulting to environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.

All defenses not raised in the return shall be deemed waived.

The return shall include affidavits of witnesses, documentary evidence, scientific or other
expert studies, and if possible, object evidence, in support of the defense of the respondent.

A general denial of allegations in the petition shall be considered as an admission thereof.


(Sec. 8, Rule 7, A.M .No. 09-6-8-SC).

What are the prohibited pleadings and motions?

1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default (Sec. 9, Rule 7, A.M. No. 09-6-8-SC).

What are the interim reliefs available to the petitioner upon filing a verified motion?

1. Ocular inspection; or
2. Production or inspection of documents or things (Sec. 12, Rule 7, A.M. No. 09-6-8-SC).

What are the requisites for granting an ocular inspection?

The motion must show:


1. that an ocular inspection order is necessary to establish the magnitude of the violation
or the threat as to prejudice the life, health or property of inhabitants in two or more
cities or provinces;
2. it shall state in detail the place or places to be inspected; and
3. It shall be supported by affidavits of witnesses having personal knowledge of the
violation or threatened violation of environmental law [Sec. 12(a), Rule 7, A.M. No. 09-
6-8-SC].

What does the ocular inspection order contain?


98

The order shall specify the person or persons authorized to make the inspection and the date,
time, place and manner of making the inspection and may prescribe other conditions to protect
the constitutional rights of all parties [Sec. 12(a), Rule 7, A.M. No. 09-6-8-SC)

What must the motion asking for the issuance of a production order or inspection of
documents?

The motion must show that a production order is necessary to establish the magnitude of the
violation or the threat as to prejudice the life, health or property of inhabitants in two or more
cities or provinces [Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC].

What must the production order state?

The production order shall specify the person or persons authorized to make the production
and the date, time, place and manner of making the inspection or production and may
prescribe other conditions to protect the constitutional rights of all parties (Sec. 12(b), Rule 7,
A.M. No. 09-6-8-SC).

Note: After hearing, the court may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which constitute or contain evidence relevant
to the petition or the return, to produce and permit their inspection, copying or photographing
by or on behalf of the movant [Sec. 12(b), Rule 7, A.M. No. 09-6-8-SC].

On what grounds may a respondent be cited for contempt?

The court may after hearing punish the respondent who refuses or unduly delays the filing of a
return, or who makes a false return, or any person who disobeys or resists a lawful process or
order of the court for indirect contempt under Rule 71 of the Rules of Court (Sec. 13, Rule 7,
A.M. No. 09-6-8-SC).
Note: This section is similar to Sec. 16 of the Rule on the Writ of Amparo.

When should the court render judgment?

Within sixty (60) days from the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.(Sec. 15, Rule 7, Ibid.)

What reliefs may be granted under the writ?

(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
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environment, except the award of damages to individual petitioners. .(Sec. 15, Rule 7,
Ibid.)

What is the period to appeal from the judgment?

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for
reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of
Court. The appeal may raise questions of fact. (Sec. 16, Rule 7, Ibid.)

May separate actions be filed after the filing of a petition for issuance of writ of
kalikasan?

The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.(Sec. 17, Rule 7. Ibid.)

-------------------------------------------------------------------------------------

4. Writ of Continuing Mandamus

a) Petition

When any agency or instrumentality of the government or officer thereof unlawfully


neglects the performance of an act which the law specifically enjoins as a duty resulting
from an office, trust or station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein, or unlawfully excludes another from
the use or enjoyment of such right and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty, attaching thereto supporting
evidence, specifying that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent to do an act or series
of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner
by reason of the malicious neglect to perform the duties of the respondent, under the law,
rules or regulations. The petition shall also contain a sworn certification of non-forum
shopping.

b) Where to File

The petition shall be filed with the Regional Trial Court exercising jurisdiction over the
territory where the actionable neglect or omission occurred or with the Court of Appeals or
the Supreme Court.

c) No Docket Fees

The petitioner shall be exempt from the payment of docket fees.

d) Order to Comment

If the petition is sufficient in form and substance, the court shall issue the writ and require
the respondent to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court may
direct, together with a copy of the petition and any annexes there

D. Criminal Procedure
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1. Who may file

Any offended party, peace officer or any public officer charged with the enforcement of an
environmental law may file a complaint before the proper officer in accordance with the
Rules of Court.

2. Institution of criminal and civil action

When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charged, shall be deemed instituted with the criminal action unless the
complainant waives the civil action, reserves the right to institute it separately or institutes
the civil action prior to the criminal action.

Unless the civil action has been instituted prior to the criminal action, the reservation of the
right to institute separately the civil action shall be made during arraignment.

In case civil liability is imposed or damages are awarded, the filing and other legal fees
shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the
fees shall constitute a first lien on the judgment award.

The damages awarded in cases where there is no private offended party, less the filing
fees, shall accrue to the funds of the agency charged with the implementation of the
environmental law violated.
The award shall be used for the restoration and rehabilitation of the environment adversely
affected.

3. Arrest without warrant, when valid

A peace officer or an individual deputized by the proper government agency may, without a
warrant, arrest a person:
1. When, in his presence, the person to be arrested has committed, is actually committing
or is attempting to commit an offense
2. When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it.

Individuals deputized by the proper government agency who are enforcing environmental
laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of
Court when effecting arrests for violations of environmental laws.

4. Procedure in the custody and disposition of seized items

a) Custody and Disposition of Seized Items

The custody and disposition of seized items shall be in accordance with the applicable laws
or rules promulgated by the concerned government agency.

b) Procedure

In the absence of applicable laws or rules promulgated by the concerned government


agency, the following procedure shall be observed:
1. The apprehending officer having initial custody and control of the seized items,
equipment, paraphernalia, conveyances and instruments shall physically inventory and
whenever practicable, photograph the same in the presence of the person from whom
such items were seized.
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2. Thereafter, the apprehending officer shall submit to the issuing court the return of the
search warrant within five (5) days from date of seizure or in case of warrantless arrest,
submit within five (5) days from date of seizure, the inventory report, compliance report,
photographs, representative samples and other pertinent documents to the public
prosecutor for appropriate action.
3. Upon motion by any interested party, the court may direct the auction sale of seized
items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after
hearing, fix the minimum bid price based on the recommendation of the concerned
government agency. The sheriff shall conduct the auction.
4. The auction sale shall be with notice to the accused, the person from whom the items
were seized, or the owner thereof and the concerned government agency.
5. The notice of auction shall be posted in three conspicuous places in the city or
municipality where the items, equipment, paraphernalia, tools or instruments of the
crime were seized.
6. The proceeds shall be held in trust and deposited with the government depository bank
for disposition according to the judgment.

5. Bail

a) Where Filed

Bail in the amount fixed may be filed with the court where the case is pending, or in the
absence or unavailability of the judge thereof, with any regional trial judge, metropolitan
trial judge, municipal trial judge or municipal circuit trial judge in the province, city or
municipality.

If the accused is arrested in a province, city or municipality other than where the case is
pending, bail may also be filed with any Regional Trial Court of said place, or if no judge
thereof is available, with any metropolitan trial judge, municipal trial judge or municipal
circuit trial judge therein.

If the court grants bail, the court may issue a hold-departure order in appropriate cases.

a) Duties of the Court

Before granting the application for bail, the judge must read the information in a language
known to and understood by the accused and require the accused to sign a written
undertaking, as follows:
1. To appear before the court that issued the warrant of arrest for arraignment purposes
on the date scheduled, and if the accused fails to appear without justification on the
date of arraignment, accused waives the reading of the information and authorizes the
court to enter a plea of not guilty on behalf of the accused and to set the case for trial
2. To appear whenever required by the court where the case is pending
3. To waive the right of the accused to be present at the trial, and upon failure of the
accused to appear without justification and despite due notice, the trial may proceed in
absentia.

6. Arraignment and plea

a) Arraignment

The court shall set the arraignment of the accused within fifteen (15) days from the time it
acquires jurisdiction over the accused, with notice to the public prosecutor and offended
102

party or concerned government agency that it will entertain plea-bargaining on the date of
the arraignment.

b) Plea Bargaining

On the scheduled date of arraignment, the court shall consider plea-bargaining


arrangements.
Where the prosecution and offended party or concerned government agency agree to the
plea offered by the accused, the court shall:
1. Issue an order which contains the plea-bargaining arrived at
2. Proceed to receive evidence on the civil aspect of the case, if any
3. Render and promulgate judgment of conviction, including the civil liability for damages

7. Pre-trial

a) Setting of Pre-Trial Conference

After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It
may refer the case to the branch clerk of court, if warranted, for a preliminary conference to
be set at least three (3) days prior to the pre-trial.

b) Manner of Questioning

All questions or statements must be directed to the court.

c) Agreements or Admissions

All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel; otherwise, they cannot be used
against the accused. The agreements covering the matters referred to in Section 1, Rule
118 of the Rules of Court shall be approved by the court.

d) Record of Proceedings

All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties or their counsels.

e) Pre-Trial Order

The court shall issue a pre-trial order within ten (10) days after the termination of the pre-
trial, setting forth the actions taken during the pre-trial conference, the facts stipulated, the
admissions made, evidence marked, the number of witnesses to be presented and the
schedule of trial. The order shall bind the parties and control the course of action during the
trial.

8. Subsidiary liabilities

In case of conviction of the accused and subsidiary liability is allowed by law, the court may,
by motion of the person entitled to recover under judgment, enforce such subsidiary liability
against a person or corporation subsidiarily liable under Article 102 and Article 103 of the
Revised Penal Code.

E. Evidence
103

1. Precautionary principle

a) Applicability

When there is a lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.

b) Standards for Application

In applying the precautionary principle, the following factors, among others, may be
considered:
1. threats to human life or health
2. inequity to present or future generations
3. prejudice to the environment without legal consideration of the environmental rights of
those affected.

2. Documentary evidence

a) Photographic, Video and Similar Evidence

Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife by-
products or derivatives, forest products or mineral resources subject of a case shall be
admissible when authenticated by the person who took the same, by some other person
present when said evidence was taken, or by any other person competent to testify on the
accuracy thereof.

b) Entries in Official Records

Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.

11. JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC)

1. SCOPE AND WHERE APPLICABLE(Section 1)

This Rule shall apply to all actions, proceedings, and incidents requiring the reception of
evidence before:

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial
Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply
to small claims cases under A.M. 08-8-7-SC;
2. The Regional Trial Courts and the Shari'a District Courts;
3. Appellate Courts;
4. The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP); and
5. The special courts and quasi-judicial bodies, whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as their existing rules of procedure contravene
the provisions of this Rule.
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2. CONTENTS AND PROCEDURE

Contents(Section 3)
A judicial affidavit shall be prepared in the language known to the witness and, if not in English
or Filipino, accompanied by a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully conscious that
he does so under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered,
that:
(1) Show the circumstances under which the witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are relevant to the issues that the case presents;
and
(3) Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court.

(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who is
authorized by law to administer the same.

Sworn attestation of the lawyer(Section 4)


The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who
conducted or supervised the examination of the witness, to the effect that:

1. He faithfully recorded or caused to be recorded the questions he asked and the


corresponding answers that the witness gave; and
2. Neither he nor any other person then present or assisting him coached the witness
regarding the latter's answers.

PROCEDURE

WHAT MUST BE FILED AND SERVED


The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses'
direct testimonies; and
(2) The parties' documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant
or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the respondent or the
defendant. (Section 2(a), Judicial Affidavit Rule)

WHEN JUDICIAL AFFIDAVITS AND DOCUMENTARY/OBJECT EVIDENCE FILED; MODES


OF SERVICE
The parties shall file with the court and serve on the adverse party, personally or by licensed
courier service, not later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents. (Section 2(a), Judicial Affidavit
Rule)

FILING AND SERVICE IN CRIMINAL CASES


The prosecution shall submit the judicial affidavits of its witnesses not later than five days
before the pre-trial, serving copies if the same upon the accused. The complainant or public
105

prosecutor shall attach to the affidavits such documentary or object evidence as he may have,
marking them as Exhibits A, B, C, and so on. No further judicial affidavit, documentary, or
object evidence shall be admitted at the trial.

If the accused desires to be heard on his defense after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such affidavits and serve a copy of each
on the public and private prosecutor, including his documentary and object evidence previously
marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the court to testify. (Section 9(b and c),
Judicial Affidavit Rule)

SUBPOENA
If the government employee or official, or the requested witness, who is neither the witness of
the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, documents, or other things under his
control available for copying, authentication, and eventual production in court,the requesting
party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena
to the witness in this case shall be the same as when taking his deposition except that the
taking of a judicial affidavit shal1 be understood to be ex parte. (Section 5, Judicial Affidavit
Rule)

HOW OFFER OF TESTIMONY IN JUDICIAL AFFIDAVIT MADE


The party presenting the judicial affidavit of his witness in place of direct testimony shall state
the purpose of such testimony at the start of the presentation of the witness. (Section 6,
Judicial Affidavit Rule)

GROUNDS ON WHICH THE ADVERSE PARTY MAY OBJECT TO THE TESTIMONY GIVEN
The adverse party may move to disqualify the witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility. The court shall promptly rule on the motion
and, if granted, shall cause the marking of any excluded answer by placing it in brackets under
the initials of an authorized court personnel, without prejudice to a tender of excluded evidence
under Section 40 of Rule 132 of the Rules of Court. (Section 6, Judicial Affidavit Rule)

CROSS-EXAMINATION AND RE-DIRECT EXAMINATION OF THE WITNESS IN HIS


JUDICIAL AFFIDAVIT
The adverse party shall have the right to cross-examine the witness on his judicial affidavit and
on the exhibits attached to the same. The party who presents the witness may also examine
him as on re-direct. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the answers that it
needs for resolving the issues.(Section 7, Judicial Affidavit Rule)

PROCEDURE FOR ORAL OFFER OF AND OBJECTIONS TO EXHIBITS


(a) Upon the termination of the testimony of his last witness, a party shall immediately make
an oral offer of evidence of his documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for which he offers the particular
exhibit.

(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for his
objection, if any, to its admission, and the court shall immediately make its ruling respecting
that exhibit.

(c) Since the documentary or object exhibits form part of the judicial affidavits that describe
and authenticate them, it is sufficient that such exhibits are simply cited by their markings
during the offers, the objections, and the rulings, dispensing with the description of each
exhibit. (Section 8, Judicial Affidavit Rule)
106

3. APPLICATION TO CRIMINAL ACTIONS (Section 9)

The judicial affidavit can be used in criminal cases only in the following cases:

(1) Where the maximum of the imposable penalty does not exceed six years;

(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty
involved; or

(3) With respect to the civil aspect of the actions, whatever the penalties involved are.

4. EFFECT OF NON-COMPLIANCE(Section 10)

The effects are:


(a) A party who fails to submit the required judicial affidavits and exhibits on time shall be
deemed to have waived their submission. The court may, however, allow only once the
late submission of the same provided, the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting party pays a fine of not less
than P 1,000.00 nor more than P 5,000.00 at the discretion of the court.
(b) The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's right to confront by cross-
examination the witnesses there present.
(c) The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4 above. The court
may, however, allow only once the subsequent submission of the compliant replacement
affidavits before the hearing or trial provided the delay is for a valid reason and would not
unduly prejudice the opposing party and provided further, that public or private counsel
responsible for their preparation and submission pays a fine of not less than P 1,000.00
nor more than P 5,000.00, at the discretion of the court.

5. EFFECT ON OTHER RULES (Section 11)


The provisions of the Rules of Court and the rules of procedure governing investigating officers
and bodies authorized by the Supreme Court to receive evidence are repealed or modified
insofar as these are inconsistent with the provisions of this Rule.
The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby
disapproved.

12. EFFICIENT USE OF PAPER RULE (A.M. No. 11-9-4-SC)

Note:Please take note that the relevant Rules of Court provisions stating the number of copies
required to be filed have been changed. The Efficient Use of Paper Rule is now followed.

TITLE OF THE RULE (Section 1)

Efficient Use of Paper Rule.

APPLICABILITY(Section 2)

All courts and quasi-judicial bodies under the administrative supervision of the Supreme Court.

FORMAT AND STYLE(Section 3)


107

a. All pleadings, motions, and similar papers intended for the court and quasi-judicial body's
consideration and action (court-bound papers) shall be written in single space with a one-
and-a-half space between paragraphs, using an easily readable font style of the party's
choice, of 14-size font, and on a 13-inch by 8.5-inch white bond paper; and

b. All decisions, resolutions, and orders issued by courts and by quasi-judicial bodies under
the administrative supervision of the SC shall comply with these requirements. Similarly
covered are the reports submitted to the courts and TSNs.

MARGINS AND PRINTS (Section 4)


The parties shall maintain the following margins on all court-bound papers:
1. A left hand margin of 1.5 inches from the edge;
2. An upper margin of 1.2 inches from the edge;
3. A right hand margin of 1.0 inch from the edge; and
4. A lower margin of 1.0 inch from the edge.

Every page must be consecutively numbered.


COPIES TO BE FILED(Section 5)
Unless otherwise directed by the court, the number of court-bound papers that a party is
required or desires to file shall be as follows:
a. In the SUPREME COURT,
 1 original (properly marked) and
 4 copies.

If cases are referred to the court en banc:


 10 additional copies; and
 2 sets of annexes (one attached to the original and an extra copy).

For the division:


 2 sets of annexes (one attached to the original and an extra copy)

All members of the Court shall share the extra copies of annexes in the interest of
economy of paper.

Parties to cases before the Supreme Court are further required, on voluntary basis for the
first 6 months following the effectivity of this Rule and compulsorily afterwards
unless the period is extended, to submit, simultaneously with their court-bound papers:
 soft copies of the same and their annexes (the latter in PDF format) either by email to
the Court'se-mail address or by compact disc (CD).
(This requirement is in preparation for the eventual establishment of an e-filing
paperless system in the judiciary)

b. In the COURT OF APPEALS and the SANDIGANBAYAN:


 1 original (properly marked) and
 2 copies with their annexes.

c. In the COURT OF TAX APPEALS,


 1 original (properly marked) and
 2 copies with annexes.

On appeal to the En Banc,


 1 original (properly marked) and
 8 copies with annexes.

d. In OTHER COURTS:
108

 1 original (properly marked) with the stated annexes attached to it.

ANNEXES SERVED ON ADVERSE PARTY(Section 6)

A party required by the rules to serve a copy of his/her court-bound paper on the adverse party
need not enclose copies of those annexes that based on the record of the court such party
already has in his/her possession. In the event a party requests a set of the annexes actually
filed with the court, the party who filed the paper shall comply with the request within 5 days
from receipt.