Magic Areas in REMEDIAL LAW. 2016 Bar Examination Dean ED VINCENT S. ALBANO Bar Review Director, ABRC JURISDICTION Jurisdiction is conferred by law. tna complaint for recovery of possession of a real property before the RTC but failed to allege the assessed value of the property, attached a copy of a Declaration of Real Property showing that the subject property has a market vaiue of 51,965.00 and assessed value of P20,790.00, the RTC has jurisdiction ifitis located outside of Metro Manila, Ics well-settled that jurisdiction over a subject matter is conferred by law, not by the parties’ action or conduct, and 4s, likewise, determined from the allegations in the complaint. Generally, the court should only look into the facts alleged in the complaint to determine whether a suit is within its Jurisdiction. (Barbosa v. Hernandez, GR. No. 133564, July 10, 2007, 527 SCRA 99). There may be instances, however, when a ‘igh application of ths rule may result in defeating substantial justice or in prejudice toa party's substantial right. (See Tan v. Director of Forestry, G.R. No. L 24548, October 27, 1983, 125 SCRA 302). In Marcopper Mining Corp. v. Garcia, 227 Phil 166, 174 (1596), the Court allowed the RTC to consider, in addition to the complaint, other pleadings submitted by the parties in deciding whether or not the complaint should be dismissed for lack of cause of action. In Guaranteed Homes, Inc v.Helrs of Valdez, et al, GR. No, 171531, janiary 30, 2009, 577 SCRA 441, 449, it was held that the factual allegatious in a complaint should be considered in tandem with the statements and inscriptions on the documents attached to it as annexes or integral parts ‘There is no reason to strictly apply the above-mentioned general rule, and to consider the facts contained in the Declaration of Real Property attached to the complaint in deterraining whether the RTC had jurisdiction over the petitioner's case. A mere reference to the attached document could facially resolve the question on jurisdiction and would have rendered Fengthy litigation on this point unnecessary. Accion publiciana; assessed value determines the court with jurisdiction, Accion publiciana is an ordinary civil proceeding to determine the better right of possession of realty independent of title. It refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action ot from the “unlawful withholding of possession of the realty. (Vda. de Aguilar v. Alfaro, G.R. No, 164402, july S, 2010, 623 SCRA 130, 140). ‘The objective of the plaintifis in accion publiciona is to recover possession only, not ownership. However, where the arties raise the issue of ownership, the courts may pass upon the issue to determine who between the parties has the right to possess the property. This adjudication is not a final determination of the issue of ownership; itis only fox the purpose of resolving the 'ssue of possession, where the issue of ownership is inseparably linked to the issue of possession. The adjudication of the Issue of ownership, being provisional, is not a bar to an action between the same parties involving title to the property. The adjudlicatien, in short, is not conclusive on the issue of ownership. (Suapo, etal, v. Sps. De Jesus, et al, G.R. No. 198356, Apri 20, 2015, Brion, J) The RTC aud MTC have jurisdiction over accion pubticiana. sn view of the amendments to the Rule of Law, jurisdiction over actions involving ttle to of pessession of real property is now determined by its assessed value. (See Quano v, PGTT International Investment, 434 Phil. 28 (2002); Hilario v. Salvador, 497 Phil, 327 (2005); Heirs of Sebe v. Heirs of Sevilla, 618 Phil. 395 [2009]; Padre v. Badillo, GR, No. 165423, January 19, 2011, 610 SCRA 50,66); The assessed valve of real property Is its fair market value multiplied by the assessment fevei. tis synonymous to taxable value. (Hilario v. Salvador, supra.; BF Citiland Carp. v, Otake, GR. No, 173351, July 29, 2010, 220 SCRA 220, 229), |n Quinagoran v. Court of Appeals, 557 phil. 650, 657 [2007], it was ruled that as things now stand, a distinction roust be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and PS0,000.00, if within. ff the assessed value as shown by the tax declaration is P39,000.00 and attached to the complaint, the MTC of Manila has jurisdiction even if not alleged. (Suapo, et al. . Sps. De jesus, et al, GR. No. 198356, April 20, 2015, Brion, }) Jurisdiction of a court is determined by the allegations in the complaint. It is a well-settled rule that jurisdiction of the court is determined by the allegations in the complaint and the character of the relief sought. In Russell v. Vesti, G.R. No. 119347, March 17, 1999, 304 SCRA 738, 744), it was ruled that in determining whether an action js one the subject matter of which is not capable of pecunlary estimation the criterion of first ascertaining the nature of the principal action or remedy sought Is resorted to. If itis primarily for the recovery of a sum of ‘money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the RTCs would depend on &! e amount of the claim.” But where the,basic issue ls something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal rellef sought, such actions as cases where the subject of the litigation may not be estimated in terms of money, and, hence, ate incapable of pecuniary estimation ‘These cases are cognizable exclusively by RTCs. (Surviving Heits of Alfredo eutista v. Lindo, etal, GR. No, 2082 ch 16, 2014), Jn decermining whether ai action is ome th of the principat uction ur remedy sought must first be uscurtatned, In detennining « hether an actiow is ane ds subject mater of which is not cepabie of pecuniary estimation, the Court has adopted the criterion of first ascertaining the ;uiture of the principal action or remedy souight. If it is primarily for the Fecovery of a sum of money, the claiin is considered capaple of pecuniary estimation, and whether jurisdiction is in the Aivaicipal courts or in the RTCs would depend on the amount of the ciaim. But where the basic issue is someting other tha the righ te cecover a sun uf money, where Ue mo: claim is purely incidental to, of a censeqsieace of, the principal relie! sought, the Court has: considered such actions az cases where the subject of the litigation may not be estimated in terms 9! subject mmuiter of which is not capable of pecuntary estimation, the marie 2 JABRC2OIE.HoImers in Aemedial Lav (con dite with sinters 2OLShwareyate!EWSAerysmoney, and, hence, are incapable of pecuniazy estimation. Thess cases are cognizable exclusively by RTCs. (See Ruselv. Vesti 304 SCRA 738, March 17, 1999; SURVIVING HEIRS OF ALFREDO R. BAUTISTA, et ai. v. FRANCISCO LINDO, et al, G.R. No. 208232, March 10, 2014, Velasco, JJ) Jurisdiction can be raised for the first time on appeal. Iisa well-settled rule of jurisprudence that the issue of jurisdiction can be raised even for the first time on appeal. In Heirs of julao v. De Jesus, G.R. No, 176020, September 29, 2014, Del Castillo |, the SC was confronted with the issue of lack of Jurisdiction being raised in a party's appellant’ brief, It was once again ruled that even if it was raised for the first time on appeal is of no moment. Under Section 1, Rule 9 of the Revised Rules of Court, defenses not pleaded either in a motion to dismiss or in the answer are deemed waived, except for lack of jurisdiction, litis pendentia, res judicata, and prescription, which must be apparent from the pleading or the evidence on record. In other words, the defense of lack of jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. (Heirs of jose Fernando v De Belen, GR. No. 186366, july 3, 2013, 700 SCRA $56, 562). In fact, the court may motu proprio dismiss a complaint at any time when itappears from the pleadings or the evidence on record that lack of jurisdiction exists. Jurisdiction over the subject matter is conferred by law and is determined by the material allegations of the complaint. Thus, it cannot be acquired through, or waived by, any act or omission of the parties: nor can it be cured by their sil_nce, acquiescence, or even express consent. (Heirs of Julian Dela Cruz v. Heirs of Alberto Cruz, 512 Phil. 389, 400 2005}; Helrs of lao v. De Jesus, G.R No. 176020, September 29, 2014), Doctrii.e of non-interference or doctrine of judicial stability > The rehabilitation case is distinct and dissimilar from the annulment of foreclosure case, in that the first case is a ‘special proceeding while the second is a civil action. civil action is one by which a party sues another for the enforcement or Protection of a right or the prevention or redress of a wrong. Strictly speaking, it is only in civil actions that one speaks of a ‘cause of action. A cause of action is defined as the act or omission by which a party violates a right of another. Thus, in the annulment of foreclosure case, the cause of action of Rombe is the act of Asiatrust in foreclosing the mortgage on Rombe's properties by which the latter’s right to the properties was allegedly violated. Indeed, the two cases are different with respect to their nature, purpose, and the reliefs sought such that the injunctive writ issued in the annulment of foreciosure case did not interfere with the rehabilitation case. The purpose of the ‘rehabilitation case and the reliefs prayed for by Rombe are the suspension of payments because it “foresees the impossibility cof meeting its debts when they respectively fall due,” and the approval ofits proposed rehabilitation plan. The and the reliefs sought by Rombe in the annulment of foreclosure case are, among others, to annul the unilateral increase in the interest rate and to cancel the auction of the mortgaged properties. Hence, being dissimilar as to the nature, purpose and reliefs sought, the order granting the injunctive writ in the annulment of foreclosure case did not interfere with the order dismissing the rehabilitation pettion and lifting of the stay order issued by RTC Branch 7. (ROMBE EXIMTRADE (PHILS), INC, et al. vs ASIATRUST DEVELOPMENT BANK, GR. No. 164479, February 13,2008, Velasco .) Action for quieting of tities within the MTC or RTC jurisdiction depending upon its assessed vaiue. ‘The original and exclusive furisdiction over-a complaint for quieting of ttle and reconveyance involving friar land belongs to either the Regional Trial Court (RTC) or the Municipal Trial Court (MTC), depending upon the assessed value of the property. : Conformably with Sec. 19, BP 129 as amended by RA 7691, because an action for reconveyance orto remove a cloud on one's tile Involves the tile to, or possession of, real property, or any interest therein, exclusive original jurisdiction over such action pertained to the RTC, unless the assessed value of the property does not exceed 20,000.00 or P50,000.00 in which instance the MTC having territorial jurisdiction would have exclusive original furisdiction. Determinative of wiich ‘egular court has jurisdiction would be the allegations ofthe conrplaint onthe assessed value ofthe property andthe principal rellef thereby sought (Heirs of Generoso Sebe v. Heirs of Sevilla, GR. No. 174497, October 2, 2009, 603 SCRA 395; Heirs of Reterta, et al. v.Sps. Lopez, GR. No. 159941, August 17, 2011, Bersamin, J In jartition cases, assessed value determines the court with jurisdiction. MTCC has jurisdiction to take cognizance of real actions or those affecting ttle to real property, oF for the recovery cf possession, or for the partition or condemnation of, or foreclosure of a mortgage on real property. * Here, the subject property's assessed value was merely P8,080.00, an amount which certainly does not exceed the required limit of P20,000.00 for civil actions outside Metro Manila to fall within the Jurisdiction of the MTCC. Therefore, the lower court correctly took cognizance of the instant case, (Barrido v. Nonato, G.R. No. 176492, October 20, 2014, Peralta, |) Action to enforce right to repurchase lot fs beyond pecuniary estimation. ‘An action to enforce a right to repurchase the lot of a party formerly owned pursuant to the right of a free patent holder under Sec. 119 of CA 141 or the Public Land Act is ane beyond pecuniary estimation. It is not one involving ttle to or Possession of real property or interest therein. The reacquisition’of the lots is but an offshoot of the exercise of the right to Fedeem the same. The reconveyance of the ttle is solely dependent on the exercise of such right to repurchase and is not the principal main relief or remedy. The right to repurchase is provided for by the law which is five (5) years from the date of conveyance which is deemed to be written in the contract. Thus, it is a binding prestation which the owsier may svek to enforce. He filed a complaint to enforce his right granted by law to cover the lot subject of free patent. Ergo, itis clear that his action is for specific performance, or if not strictly such action, then itis akin or analogous to one of specifie performance. Such being the case, his action for specific performance is incapable uf pecuniary estimation and ognizable by the RTC. (Surviving Heirs of Alfredo Bautista v. Lindo, et al, GR. No. 208232, March 10, 2014, Velasco, J) Recovery of damages due to maticious prosecution; total amount of damages determines the jurisdiction of the court. It is settled that jurisdiction is conferred by law based on the facts alleged in the complaint since the latter comprises ® concise statement of the ultimate facts constituting the plaintiff's causes of action. If the main action is for damages, eg, exemplary damages, attorney's fees and litigation expenses, they are not merely Incidental to or consequences of the main action but constitute the primary relief prayed for in the complaint, hence, the totality rule applies. 2 | ABRC2U16 Pointers in Remedial Law (eornbined with pointers 2015}segregate/EVSA/erYS‘The total amount of monetary claims including the claims for damages was the basis to determine the jurisdictional ‘amount. (Iniego v. Purganan. G.R. No, 166876, March 24, 2006, 485 SCRA 394; Sante v. Hon. Claravall,et. al, G.R. No. 173915, February 22, 2010; Mendoza v. Soriano, GR. No, 145022, September 23, 2005, 470 SCRA 639),). When the doctrine of estoppel to question jurisdiction applies. The operation of estoppel on the question of jurisdiction depends on whether the lower court actually ‘had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the Parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by the consent of the parties or by estoppel." However, ifthe lower court had jurisdiction, and the case was heard and decided upon a given theory, as that the court had no jurisdiction, the party who induced it to adopt such theory will nat bbe permitted, on appeal, to assume an inconsistent position—that the lower court had jurisdiction. (See also: Metromedia ‘Times Corp. v. Pastorin, GR, No. 154295, July 25, 2005, 465 SCRA 320; Lazon v, NLRC, 310 Phil 1 (1995}). RULE 2- ACTIONS Effect of misjoinder of causes of action. Misjoinder of causes of action is not a ground for dismissal. Indeed, the courts have the power, acting upon the motion of a party to the case or sua sponte, to order the severance of the misjoined cause of action. to be proceeded with separately. However, if there is no objection to the Improper joinder or the court did not motu proprio direct a severance, then ‘here exists no bar in the simultaneous adjudication ofall the erroneously joined causes of action. In Republic ofthe Philippines \: Herbieto it was ruled: Misjoinder of causes of action and parties do not involve a question of jurisdiction of the court to hear and proceed with the case, They are not even accepted grounds for dismissal thereof. Instead, under the Rules of Court, the misjoinder of causes of action and parties involve an implied admission of the court's jurisdiction. Itacknowledges the power of the court, acting upon the motion of a party to the case or on its own initiative, to order the severance of the misjoined cause of action, to be proceeded with separately (in case of misjoinder of ‘causes of action); and/or the dropping of a party and the severance of any claim against said misjoined party, also to be proceeded with separately (in case of misjoinder of parties (498 Phil 227 [2005)). It should be emphasized that the foregoing rule only applies if the court trying the case has jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the same, (Lilia Ada, et al. v. Baylon, GR. No, 182435, August 13, 2012). Failure to state a cause of action Lack of cause of action is nota ground for a distnissal of the complaint through a motion to dismiss under Rule 16 of the Rules of Court, for the determination of a lack of cause of action can only be made during and/or after trial. What is dismissible via that mode is failure of the compiaint to state a cause of action. The rule is that in a motion to dismiss, a defendant hypothetically admits the truth of the material allegations of the ultimate facts contained in the plaintift's complaint. When a motion to dismiss is grounded on the failure to state a cause of action, a ruling thereon should, as rule, be based only on the facts alleged in the complaint. New Vista's threshold contention that De Guzmans SPA to sell should not be considered for not having been incorporated as part ofits amended complaint is incorrect since Vitangcol duly submitted that plece of document in court In the course of the hearing on the motion to dismiss. Thus, the trial court acted within its discretion in considering sald SP felative to the motion to dismiss the amended complaint. This is so because it is deemed part of the pleading. (ALICE VITANGCOL and NORBERTO VITANGCOL. V. NEW VISTA PROPERTIES, INC, GR. No. 176014, September 17, 2009, VELASCO, WR) = RULE 3 ~ Parties Real parties in interest. According to Sec. 2 of Rule 3 of the Rules uf Court, a real party-in-interest Is the party who stands to be benefited or {injured by the judgment in the suit or the party entitled to the avails of the suit. The Supreme Court stood by its ruling in Fortich v. Corona that farmer-beneficlaries, who are not approved awardees of CARP, are not real parties-in-interest, [n Fortich, the farmers who intervened in the case were inere recommetidees. in the case at bar, members of petiticner Samahan ‘are mere qualified beneficiaries of CARP. The certification that CLOAs were already generated in thelr names, but were not Issued because of the present dispute, does not vest any right to the farmers since the fact remains that they have not yet been approved as awardees, actually awarded lands, or granted CLOAs. (SAMAHANG MAGSASAKA NG 53 HEKTARYA v. WILFREDO MOSQUERA, et al, G.R. No. 152430, 22 March 2007, Velasco, jr |). Capacity Of mammals to sue. ‘A novel case was recently decided by the Supreme Court where a suit was filed by resident marine mammals, lke whales, dolphins, etc. inorder to prevent the exploration, development and explottation of petroleum resources within Tanon, Strait, a narrow passage of water situated between the tslands of Negros and Cebu. One of the basic questions is whether they have the capacity to sue or otherwise known in constitutional law as focus stand, Imanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole - 2 creature of ecclesiastical law -.s an acceptable adversary and large fortunes vide fn its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, jakes. estuaries, beaches, ridges, groves of trees, Swampland, or even air that feels the destructive pressures of modern technology and modem life. The river, for example, is the hving symbol of all the life it sustains oF nourishes —fish, aquotic insects, weter oveels, utter, fisher, deer, elk, bear, anid all other animals, including man, who are dependent on it ar who enjoy it for 'ts sight. its sound, or its life. The river as plaintiff spvatks for the ecological unit of life that is part ot it Those people who have a meaningful relation to that body of water— 3 [AaRcAG:6.Pointers i; Remedial .aw (cotnbines with pointers 2015)seRregate/EVSAJerYS‘whether tbe a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. The primary reason animal rights advocates and environmentalists seek to give animals and inanimate objects scanding is due to the need to comply with the strict requirements in bringing a suit to court. Our own 1997 Rules of Court demand that parties to a suit be elther natural or juridical persons, or entities authorized by law. It further necessitates the action to be brought in the name of the real party-in-interest, even iffiled by a representative. Even before the Rules of Procedure for Environmental Cases became effective, the Court had already taken a Permissive position on the issue of locus standi in environmental cases, In Oposa, a suit was allowed to he brought in the ame of generations yet unborn "based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.” Furthermore, the right to a balanced and healthful ecology, a right that does not even ‘eed to be stated in our Constitution as its assumed to exist irom the inception of humankind, carries with it the correlative duty to refrain from impairing the environment. = = = ‘The need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not justin representation of the named cetacean species. The Stewards, having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition. (Resident Marine Mammals ofthe Protected Seascape Tanon Strait, E.G. Toothed Whales, Dolphins, Porpoises and Other Cetacean Species, Joined in and Represented by Human Beings Gloria Ramos & Rose Liza Eismia-Osorio, etc. v. Sec. Angelo Reyes, et al, G.R. No. 190771, April 21, 2015 & ‘companion cases, Leonardo-De Castro, |). Effect if person supposed to be parties in an action are not impleaded in an action. Since they were not impleaded as parties and given the opportunity to participate in the action, the final judgment in said case cannot bind them. The effect of the said judgment cannot be extended to them by simply issuing an alias writ of ‘execution against them. No man shall be affected by any proceeding to which he Is a stranger, and strangers to a case are not bound by any judgment rendered by the court. n the same manner, a writ of exeeution can be issued only again a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution issued pursuant thereto. (Munoz v. Atty. Yabut, etal, GR, No. 142676; Munoz v. Sps. Chan, et al, G.R. No. 146718, june’6, 2011, Leonardo-de Castro, }). Non-joinder or misjoinder of parties is not a ground for dismissal. The complaint can be amended to drop or implead a party. Setidary co-debtor are not indispensable parties. Manuel and Lolita obtained a loan from Boston Equity resources Inc. obligating themselves jointly and severally to pay the amount of the obligation and her husband has already passed away, the contention that the estate of Manuel is on indispensable party and that the claim should be against the estate of Manuel is not correct, because the obligation is solidary, The creditor can collect the entire obligation from Lolita alone. Under the law, the creditor may proceed against anyone of the solidary debtors or some or all of them simultaneously. The demand made against one of them shall not be an obstacle to thove which may subsequently be directed against the others, so long as the debt has not been fully satisfied. (Art. 1216, NCC} ‘The creditor may opt to collect the entire amount from anyone of the solidary debtors. (Boston Equity Resources, Inc. v.CA, et al, G.R.No, 173946, June 19, 2013, Perez, }). ‘The estate of Manuel is tot an indispensable party to the collection case, for the simple reason that the obligation of Manuel and his wife is solidary. Solidary co-debtors are not indispensable parties. ‘The collection case can proceed and the demands of the creditor can be satisfied by respondent only, even without Impleading the state of Manuel. Consequently, the estate of Manuel is not an indispensable party to petitioner's complaint for sum of money. (Boston Equity Resources, Inc. v. CA, etal, G.R. No, 173946, June 29,2013, Perez, }. Reasons why sults must be between real parties in interest ‘The purposes of the requirement for the real party in interest prosecuting or defending an action at law are: (a) to Prevent the prosecution of actions by persons without any right, ttle or Interest in the case; (b) to require that the actual Party entitled to legal relief be the one to prosecute the action; (¢) to avoid a multiplicity of suits; and (d) to discourage litigation and keep it within certain bounds, pursuant to sound public policy. Indeed, considering that all civil actions must be based on a cause of action, defined as the act or omission by which a party violates the right of another, the former as the defendant must be allowed to insist upon being opposed by the real party in interest so that he ts protected from further suits regarding the same claim. Under this rationale, the requirement benefits the defendant because “the defendant can insist upon 4 plaintiff who will afford him a setup providing good res judicata protection ifthe struggle is carried through on the merits to the end ‘The rule on real party in interest ensures, therefore, thatthe party with the legal right to sue brings the action, and this interest ends when a Judgment involving the nominal plaintiff will protect the defendant from a subsequent identical action, Such a rule is intended to bring before the court the party rightfully interested in the litigation so that oniy real controversies will be presented and the judgnient, when entered, will be binding and conclusive and the defendant will be saved from further harassment and vexation ot the hands of other claimants to the same demand. (Stronghold Ins. Co, In. v. Cuenca, GR. No. 173297, March 6, 2013) Effect of death of a party in an action that survives. If an action survives after the death of party, there can be substitution of the decedent by his hetes. (Sec. 16, Rule 3, Rules of Court) If the action survives despite death of a party. It is the duty of the deceased's counsel to inform the court of such death, and ta.give the names and addresses of the deceased's legat representatives. The deceased may be substituted by his theirs inthe pending action. (Cru v. Cruz, G.R No. 173292, September 1, 2010) {Uni lepal reprocentative fe narved by the councel oft specified period, tis the duty af the court where the case i pa of an executor or adminiswaiur for the wstats o! the deceased dacuared, or the legal representative faile to appear within = ing to order the opposing party to procure the appointment we Freason for this rule is to protect all concerned who may be 4 | annc2016.Poiters in Remedi Law (combined with pointers 2025}segrogate/EVSA/erysaffected by the intervening death, particularly the deceased and his estate. (Sumaljag v. Literato, GR. No. 149787, June 18, 2008, 555 SCRA 83; Cruz v. Cruz, GR. No, 173292, September 1, 2010). When there is a class suit. An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or {s not a class suit depends upon the attending facts, and the complaint, or other pleading initiating the class action should allege the existence ofthe necessary facts, o wit, the existence ofa subject matter of common interest, aid the existence of a class and the number of persons in the alleged class, in order that the court might be enabled to determine witether the members of the class are so numerous as to make it impracticable to bring them all before the court, to contrast the number appearing in the record with the number in the class and to determine whether claimants on record adequately represent the {lass and the subject matter of general or common interest (Mathay v. The Consolidated Bank and Trust Company, 157 Phil 551 (1974); atty. Sylvia Banda, etal. v. Ermita, G.R. No. 166620, April 29, 2010). Adherence to jurisdiction. Jurisdiction once acquired is not lost upon the instarice of the parties but continues until the case is terminated. Certainly, it would be the height of injustice to allow parties that disagree with the decision of a judicial tribunal to annul the ‘same throuigh the expedient of transferring their interests or rights involved in the case. A transferee pendente lite stands in exactly the same position as its predecessor-in-interest, the original defendant, and is bound by the proceedings had in the case hefore the property was transferred to it. It is a proper but not an indispensible party as it would in any event be bound by the judgment against his predecessor. This would follow even if itis not formally Included as a defendant through an amendment of the complaint. Hence, its non-inclusion of Heritage in the Proceedings Is of no moment as Rule 3 of Section 19 of the ROC specifically allows the proceedings to proceed with the original parties while binding the transferee. (HERITAGE PARK MANAGEMENT CORPORATION(HPMC) v. CIAC and ELPIDIO. UY, etal, GR. No, 148133, October 8, 2008, VELASCO, JR. /) RULE 4 ~ Venue Where to file an action for forectosure of a parcel of land. ‘The foreclosure of mortgage should be fied before the court where the property is located since it also involves the Litle to oF possession of real property, and therefore itis also a real action. (Chieng v. Santos, G.R. No. 169647, August 31, 2007, 531 SCRA 730), However, the action may prosper if the defendant falls to object on the ground of wrong venue, in which case the objection is deemed waived. The laying of venue is procedural rather than substantive, relating as it does to jurisdiction of the court over the person rather than the subject matter. Venue relates ta trial and not to jurisdiction. Its a procedural, not # Jurisdictional matter. (Nocum v. Tan, GR. No. 145022, September 23, 2005, 470 SCRA 630), Stipatation on venue with the use of the word “shall:" effect. Ifthe parties intend in their contract that the place specified as the venue ofall sults is exclusive, they must employ 2 categorical and suitable limiting language. that they wish the venue ofall actions between them to be laid only and exclusively at 9 definite place, otherwise it is permissive. The fact that in their agreement the parties specify only one of the venues ‘mentioned in Rule 4 or fix a place for their actions different from thase specified in sald rule, does not suffice to characterize the agreement as a restrictive one. There must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them. Any doubt or uncertainty as to the parties’ intentions must be resolved against giving their agreement a restrictive or mandatory aspect. (Unimasters Conglomeration, Ine. vs. CA, et al, 79 SCAD 241, G.R. No. 119657, February 7, 1997), Barangay Conciliation Effect if one of the parties in a compromise fails or refuses to comply with the terms of a compromise. {fone of the parties fails or refuses to abide by the compromise, the other party may either enforce the compromise or regard itas rescinded and insist upon his original demand. (Art. 2041, NCC). In exercising the second option under Art. 2041, the aggrieved party may, if he chooses, bring the suit contemplated ‘or involved in his original demand, as if there had never been any compromise agreement, without bringing an action for rescission. This is because he may regard the compromise as already cescinded by the breach thereof of the other party (Catedrilla v. Lauron, G.R. No. 179011, April 15, 2013 citing Chavez v. CA, G.R. No. 159411, March 18, 2005). Non-compliance with the judgment based on compromise at the barangay is deemed to be repudiation because it denotes that the respondent did not intend to be bound by the terms thereof, thereby negating the very purpose for which it was oxecuted. Party has the option to enforce or regard 1 as rescinded anct insist on original claims (Chavez-v-CA; 493 -Phit-945- (2005); See: Arts. 2037 & 2041, NCC; Miguel v. Montanez, GR. No, 191336, January 25, 2012). RULE 6 - Counterclaims Comprttsory counterclaim, when it is. A claim for recovery of an excess in the bid price should be set up in the action for payment of a deficiency as a compulsory counterclaim, otherwise ic would helatedly raised, hence, waived. A counterclaim is compulsory if (a) tt arises ovt of or is necessarily connected with the transaction or occurrence which isthe subject matter of the opposing party's laim; (b) it does not require for its adjudication the presence of thirci parties of whom the court cannot acquire jurisdiction; and (c) the court has jurisdiction to entertain the claim both as tw its atnount and nature, except that in an original action before the RT( the counterclaim may be considered compulsory regardless of the amount. A claim for recovery of the excess in the bid price vis-d-vis the amount due should be interposed! as a compulsory counterclaim in an action for recavery of a deficlency filed by the mortgagee against the debtor-mortgagor. First. in both cases, substantially the same evidence is needed in order to prove their respective claim. Second, adjudication in favor of one will necessarily bar the other since these twa actions are absolutely incompatible with each other; a debt cannot be fully paid and partially tunpald at the same time. Third, these two opposing 5 JABRC20i6.Pointers in Remedial Law (combined with pointers 2015)segregate/EVSA/crysclaims arose from the same set of transactions. And finally, if these two claims were to be the subject of separate trials, it Would definitely entail a substantial and needless duplication of effort and time by the parties and the court, for said actions ‘would involve the same parties, the same transaction, and the same evidence. (METROPOLITAN BANK AND TRUST COMPANY. ¥.CPR PROMOTIONS AND MARKETING, INC, et al. (.K. No, 200567; June 22, 2015; VELASCO, IR, J) ‘Verification and Certification against Forum Shopping Test of forum shopping. The test to determine whether forum shopping exists is whether the elements of litis pendencia are present or where final judgment in one case will amount to res judienea in the other. Res judicata means a matter or thing adjudged, judicially acted upon or decided, or settled by judgment. its requisites are: (1) the former judgment or order must be final: (2) the judgment or order must be one on the merits: (3) it must have been rendered by a court having jurisdiction over the subject ‘matter and parties: and (4) between the first and second actions, there must be identity of parties, subject matter, and causes of action. (CLARK DEVELOPMENT CORPORATION v. MONDRAGON LEISURE AND RESORTS CORPORATION, et al.. GR No. 150986, 2 March 2007, J. Velasco, Jr.) RULE 8 ~ Manner of Allegations Manner of alleging actionable document. Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading ar an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading (Section 7, Rule 8 of the Rules of Court). ‘An “actionable document” js.a written instrument or document on which an action or defense is founded. It may be pleaded in either of two ways: = - = (1) by setting forth the substance of such document in the pleading and attaching the document thereto as an annex, or (2) by setting forth said document verbatim in the pleading, (Metropolitan Bank & Trust Co. v. Ley Construction & Dev. Corp. et al. GR, No. 185590, December 3, 2014, Leonardo-De Castro, |) Genuineness and due execution of actionable document. Rule 8, Section 8 specifically applies to acticns or defenses founded upon a written instrument and provides the manner of denying it which must be under oath and specifically denies the instrument otherwise its genuineness and due execution shall be admitted, It s more controling than Rute 6, Section 10 which merely provides the effect of failure to fle a Reply which Is al the new matters alleged in the Answer were deemed controverted, Thus, where the defense in the Answer is based on an actionable document, a Reply specifically denying it under oath must be made; otherwise. the genuineness and due execution of the document will be deemed adinitted. Since respondent failed to deny the genuineness‘and due execution of the Dacion and Confirmation Statement under oath, then these are deemed admitted and must be considered by the court in resolving the demurrer to evidence. However, admission of the genuineness and due execution of the Dacion and Confirmation Statement does not prevent the introduction of evidence showing that the Dacion excludes the promissury notes. Casents, by way of defense, should have presented evidence to show that the Dacion includes the promissory notes (Casent Realty Development Corporation vs. Philanking Corporation, G.R, No. 150731, September 14, 2007, Velasco, It) ‘Meaning of the admission of the genuineness and due execution of an actionable document. Hy the admission of the genuineness and due execution of an instrument, is meant that the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority, that at the time it was signed, It was In words and figures exactly as set out in the pleadings of the party relying upon it, that the document was delivered and that ‘any forme] requisites required by law, such as seal, an acknowledgment, or revenue stamps which it lacks are waived, The Gctense of forgery or that it was unauthorized are cut off by the admission of its genuineness and due execution. (Hibbard vs. Erte and Memillan, 32 Phil. 477; Simon vs. Canlas, G.R. No, 148273, Aprit 19, 2006). Ho knowledge sufficient to form a belief; when itis a specific denial. ‘The defendant's denial of allegations for lack of knowledge as to their truth and having applied for membership with the card company and that she never authorized anyone to get her alleged card thus, not being a member, she has 40 obligation, monetary or otherwise, to the plaintiff is considered as specific denial under oath the genuineness and due execution of actionable documents, It fs teue that she denied the documents merely for “lack of knowledge” which denial, is inadequate since by their ature she ought to know the truth of the allegations regarding those documents. But this inadequacy was cured by her assertion that she was denying the allegations regarding those actionable documents, stating that she never applied for membership with the card company. These reasons cannot be ignored and they form part of the answer. Hence, when she tlenied the transaction for “lack of knowledge,” it was her way of saying that such transactions took place without her knowing, Since the answer was verified, she in effect denied under oath the genuineness and due execution of the documents ‘supporting them. For this reason, she is not barred from introducing evidence that those documents were forged. (Equitable: Cardnetwork, Inc. v. Capistrano, G.R. No, 180157, Febrvary 8, 2012), Extent of admission of genuineness and due execution of document. The genuineness and due execution of « document is deemed admitted if document is not denied specitically aul lunder oath. But the party can prove that there was no consideration Extent of the admission are limited to the genuitieness and due execution of the actionable document, the signatures of the notary public, witnesses as well as the figures contained therein but aot lability. (Mauplad Savings & Loans Association, Inc. v.CA, GR. Wo. 134942, Noverber-27, 2000), 6 |ABRC2026 Pointers in Remedial Law (combined with pointers 2015}segregate/EVSA/erysDefendant can present evidence of non- liability. While the “[failure to deny the genuineness and due execution of an actionable document there is an admission of the same, it does not preclude a party from arguing against it by evidence of fraud, mistake, compromise, payment, statute of lmitations, estoppel and want of consideration [hor] bar a party from raising the defense in his answer or reply and prove at the trial that there is a mistake or imperfection in the writing, or that it does not express the true agreement of the parties, or that the agreement is invalid or that there isan intrinsic ambiguity in the writing,” (Go Tong Electrical Supply Co., inc, etal. v. BPI Family Savings Bank, Inc, GR. No. 187487, june 29, 2015, Perlas-Bernabe, |). What are merely admitted are the genuineness and due execution of the document, the figures contained therein, the signatures of the witness and notary Public. There can be no defense of forgery. RULE 9 - Effect of Failure to Plead Effect if there are defenses and abjections not pleaded. Defenses and objections not pleaded either in a motion to disiniss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action Is barred by prior judgment or by statute of limitations, the court shall dismiss the claim. (Sec. 1, Rule 9, Rules of Court), An action may be dismissed on the ground of prescription even if not pleaded in a motion to dismiss. Trial courts have authority and discretion to dismiss an action on the ground of prescription when the parties pleadings or other facts on record show it to be indeed time-barred x x x: and it may do so on the basis of a motion to dismiss, or an answer which sets up such ground as an affirmative defense; or even ifthe ground is alleged after jadgment on the merits, as in a motion for reconsideration; or even ifthe defense has not been asserted at all, as where no statement thereof is ound in the pleadings, or where a defendant has been declared in default. What is essential only, to repeat, is that the facts emonstrating the lapse of the prescriptive period, be otherwise sufficiently and satisfactorily apparent on the records either in the averments ofthe plaintiffs complaint, or otherwise established by the evidence. (PNB v, Aznar. ct al, GR.No. 171805, May 30, 2011, Leonardo-de Castro, I) The effect and remedies of a party in default. When defendant is declared in default, the proper remedy is tc file a motion to set aside the order of default upon a Proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he kas a meritorious defense. (Rule 9, Sec. 3(b) A party declared in default loses his standing in court and his right to adduce evidence and to present his defense. He. however, has the right to appeal from the judgment by default on the ground, that the amount of the judgment is excessive or is different in kind from that prayed for, or that plaintiff failed to prove the material allegations of his complaint, or that che decision is contrary to law. He may not seek the reversal of the decision on the basis of evidence submitted in the appellate court. Otherwise, his right to adduce evidence would have been returned to him. He can also fle a motion for new trial or petition for declaration of nullity or annulment of judgment or special civil action for certiorari under Rule 65. (Nabua, eta. v. Lu Ym, GR. No. 176141, December 16, 2008). Effect if there are several defendants in an action for quieting of title some answered and others were defaulted. Under Sec. 5{c), Rule 9 of the Rules of Court, when a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all tunon the answer thus filed and render judgment upon the evidence presented. In this case, considering that the plsintffs stated a common cause of action against the defendants, the trial court should have tried or heard the case as against all the defendants, the defaulted defendants included. However, the trial court received evidence ex parte only against the defaulved defenciants. The partial judgment is not only violative of the rules but also a clear negation of the defaulted defendants’ limites rights. Whatever defense and evidence the non-defaulted defendants tay present which would be applicable to the situation of the defaulted defendants should inure to the benefit of the later. In this case, ifthe tid is not nullified for the answering defendants, then, It should favorably affect the defaulting ‘ones. For, how could the title be valid for one set of defendants and vold for another set. (Pinlac, et al. vs. CA, etal, GR. No, 91486, January 19, 2001). See: lieits of Mangiat.v. CA; Castro v. Pena). RULE 10 ~ AMENDED & SUPPLEMENTAL PLEADINGS, Substantial amendment in pleadings. Substantial amendments may be made only upon leave of court, but such leave of court may be refused if t appears to the court that the motion was made for delay. (Sec. 3, Rule 10, Rules of Court) This is a departure from the old rule which prohibited substantial amendments. Itis well-settied that amendment of pleadings ls favored and should be lherally allowed in the furtherance of justice In order to determine every case as far as possibie on its merits without regard to technicalities. This principle is generally recognized in order that the real controversies between the parties are presented, their rights determined and the case decided on the merits without unnecessary delay to prevent circuitry of action and neediess expense. (Limbavan v- Acosta, $79 Phil. 9 [2006}) In any ease, asubstantial alteration in the cause of action ox defense is not a bar to amend the original complaint so Jong as the amendmest is no ineant for delay. iris also quite absurd that the party who filed the main case would himself resort to dilatory tactics to prolong. the disposition of his case. tis undoubtedly to Aguinaldo’s interest that this case be decided with uispatch, more so that they have already been evicted from the property. (Citysiate Savings Bank, inc. v ‘Aguinaldo, C.R. No. 200018, April 6, 2015, Reyes, )) Amended compiaint. [According to Ser. Rule-10 of the Rites of Count, A-party may amend his pleading once as-a-matter-of-right at any Ume before a responsive pleading is served. Responsive pleadings are those which scek affirmative relief and/or set up defenses. motion to dismiss Is nut a responsive pleading ‘The RTC did not err in admitting petitioner's amended complainc 7 | ABRC2016 Pointers in Remedial Law (combined with pointers 2015).egrepate/EVSALCrYSrespondents not having yet answered the original complaint when the amended complaint was filed. Irene, by force of said Sec. 2 of Rule 10, had, as a matter of right, the option of amending her underlying reconveyance complaint. Also, the RTC decision granting respondents’ motion to dismiss has not yet attained finality atthe time Irene filed her amended complaint. However, the filing of the amended complaint does not cure the defect in venue. The action is a personal action. According the Sec. 2 Rule 4 indicates quite clearly that wien there is more than one plaintiff in a personal action case, the residences of the principal parties should be the basis for determining proper venue. Irene is the real party in interest since she {the beneficiary so entitled to the avails of the present suit. Not ofe of her co-plaintifis can be considered principal parties because they are mere representative of Irene. The co-plaintiffs may be residents of Batae, but Irene is the principal Party. She is nota resident of Batac, therefore the venue is improperly laid, (Irene Marcos-Araneta, et al. v. Court of Appeals, et al, GR. No. 154096 August22, 2008, Velasco, Jr. |.) Amendment of pleading to conform to evidence. Section 5, Rule 10 of the Rules of Court allows the amendment of a pleading to conform to or authorize presentation of evidence. This provision envisions two scenarios, when evidence is introduced in an issue not alleged in the pleadings and ‘no objection was interjected; and when evidence is offered on an issue not alleged in the pleadings but this time an objection was raised. When the issue is tried without the objection of the parties, it should be treated in all respects as if it had been raised in the pleadings. On the other hand, when there is an objection, the evidence may be admitted where its admission will not prejudice hin, Thus, while defendant admitted in her Answer that she still owed petitioners P200,000, defendant later submitted an evidence to show that she already paid the whole amount of her unpaid obligation. When the receipt of payment was.formally offered as evidence, petitioners did not manifest their objection to the admissibility of sald document on the ground that Payment was not an issue. Since there was an implied consent on the part of petitioners to try the issue of payment, even if no ‘moticn was filed and no amendment of the pleading has been ordered, the RTC cannot be faulted for admitting defendant's testimonial and documentary evidence to prove payment. (Sps. Dela Cruz v. Ana Marie Concepcion( G.R. No. 172825, Octnber 11,2012). RULE 13 - SERVICE OF PLEADINGS, ETC. Service by registered mail is complete; requisites. ‘The general rule is that service by registered mail is.complete upon actual receipt thereof by the addressee. The exception is where the addressee does not claim his mail within 5 days from the date of the first notice of the postmaster, in which case, the service takes effect upan the expiration of such period Inasmuch as the exception only refers to constructive and not actual service, such exception must be applied upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. (Johnson and johnson {Phils} Inc. vs. CA, 203 SCRA 768), Not only is it required that notice of the registered mail be sent but that it should be delivered to and received dy the addressee. (Dela Cruz vs. Dela Cru, et al, 160 SCRA 361). Notably, che presumption that official duty nas been regularly performed isnot applicable. Its incumbent upon a party who relies on constructive service to prove that the first notice was ‘sent and delivered to the addressee. (Sps. Jose and Evangeline Aguilar, ét al. vs. CA, et al, 109 SCAD 108, GX No. 120972, july 19, 1999, citing Barrameda vs, Castillo, 78 SCRA 1; Jesus G, Santos vs. CA, etal, 98 SCAD 132, G.R. No: 128061, September 3, 1998). Service through courier not allowed, Filing or service of a copy of a pleading to petitioners by courier service cannot be trivialized, Service and filing of pleadings by courier service is a mode not provided in the Rules. This is not that mention that PDB sent a copy of its omnibus ‘motion to an address or area which was not covered by LBC courier service at the time. Realizing its mistake, PDB re-filed and resent the omnibus motion by registered mail, which is the proper mode of service under the circumstances. By then, however, the 15-day period had expired hence, the trial court therefore acted regularly in denying PDB's notice of appeal (Palilio, etal. v, Planters Dev. Bank, G.R. No, 193650, October 8, 2014, Del Castillo) Preference of personal service. Personal service and filing are preferred for obvious reasons, Plainly, such should expedite action or resolution on 2 pleading, motion of other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service. Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practice: (1) serving or filing pleadings bby mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered containing the pleading of or ther paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming Iatall, thereby causing undue delay in the disposition of such pleading or other papers. only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed it the other modes of service or filing were not resorted to and no written explanation was made as to why personal service was snot done in the first place. The exercise of discretion must, necessarily consider the practicability of personal service. for Section 17 itself begins with the clause "whenever practicable.” (City of Dumaguete v. PPA, GR. No. 168973, August 24, 2011) Rule not absolute. Under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in the fight of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes le had, which must then be accompanied by a written explanation’as to ‘why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall, likewise consider the inportance of the subjert matter of the ease or the issues involved therein. and the prima facie merit of the pleading sought to be expunged fer violation of Section 11. (Clty of Dumaguete v. PPA, G.R. No. 168973, August 24, 2011, Leonardo-de Castro, P}. 8 | ABRC2016.Pointers in Remedial Law (combined with pointers 7015)soyregate/EVSAVerysRULE 14-SUMMONS How court acquires jurisdiction over defendant. Courts acquire jurisdiction over the plaintiffs upon the filing of the complaint. On the other hand, jurisdiction over the defendants in a civil case is acquired either through the service of summons upon them or through their voluntary appearance ‘mn court and their submission to its authority. (Kukan International Corporation v. Reyes, G.R. No.182729, September 29, 2010, 631 SCRA 596, 612, citing Orion Security Corporation v. Kalfam Enterprises, inc, GR. No. 163287, April 27, 2007, 522 SCRA 617, 622; Chu v. Mach Asia Trading Corp, G.R. No. 184333, April 1, 2013, Peralta, )} Substituted service of summons. The following are the requirements for substituted service of summons to be valid: (1) Impossibility of prompt personal service; (2) Specific details in the return; and (3) Substituted service effected on a person of suitable age and discretion residing at defendant’s house or residence: or on a competent person in charge of defendant's office or regular Place of business. There is no valid substituted service of summons if there is no return showing impossibility of personal service specifying the details done to serve it personally. Moreover, the third requirement was also not strictly complied with as the substituted service was made not at petitioner's house or residence but in the PNP Detention Center where Ma}. Gen. Garcia is detained, even if the later is of suitable age and discretion. Hence, no valid substituted service of summons was made Defendant did not voluntarily appear before the court. because the pleadings filed by petitioner were filed solely for Special appearance with the purpose of challenging the Jurisdiction of the Sandiganbayan over her person and chat of her three children. (CLARITA DEPAKAKIBO GARCIA vs. SANDIGANBAYAN, etal, GR. No. 170122 October 12. 2009 |. Velasco). Volumary appearance. ‘Asa general proposition, one who seeks an affirmative relief Is deemed to have submitted to the jurisdiction of the court. Ir is by reason of this rule that the fillag of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the court's jurisdiction. This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court's jurisdiction over his person cannot be considered to have submitted to its authority. Prescinding from the foregoing it is thus clear that: (1) Special appearance operates as an exception to the general rule on voluntary appearance; @) Accordingly, objections to the jurisdiction of the court aver the person of the defendant must be explicitiy made, .e., set forth in an unequivocal manner; and G) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution. (Philippine Commercial international Bank v. Spouses Dy, 606 Phil. 615 [2009}) RULE 16 - MOTION TO DISMISS. When court can dismiss an action motu proprio. The Rules of Court allows courts to dismiss cases motu proprio on any of the enumerated grounds ~ (1) lack of Jurisdiction over the subject matter; (2) litis pendentia; (3) res judicata; and prescription ~ provided that the ground for {dismissal is appasrent from the pleading or the evidence on record.” Such a dismissal may be ordered even on appeal. (Sec. 1 Rule 9, Rules of Court; Heirs of Domingo Valientes v. Ramas, G.R. No. 157852, December 15, 2010, 638 SCRA 444, 451; RCBCv, Hilario, et al, G.R. No, 160446, September 19, 2012, Leonardo-de Castro, }). Rate in ruling a M7D on the ground of faiture to state a cause of actions. Settled is the rule that in a Motion to Dismiss based on fallure to state a cause of action, the issue is passed upon on the basis of the allegations in the complaint, assuming them to be true. The court does not inquire into the truth of the allegations and declare them to be false; otherwise, it would be a procedural error and a denial of due process to the plaintiff Only the statements in the complaint may be properly considered, and the court cannot take cognizance of external facts or hold preliminary hearings to ascertain their existence. The test for deterraining whether a complaint states or does not state a cause of action against the defendants is whether or not, admitting hypothetically the truth of the allegations of fact made in the complaint, the judge may validly grant the relief demanded in the complaint. (St. Mary of the Woods School Inc, etal. v. Office of the Kegistry of Deeds of Makati City, et al, G.R. Nos. 174290, 176116, January 20, 2009). What hypothetical admission of facts comprehend. While the facts alleged in the complaint are hypothetically admitted for purposes of the motion, it must, nevertheless, be remembered that the hypothetical admission extends only to the relevant and material facts well pleaded in the complaint as well as to inferences fairly deductible therefrom. Verily, the filing of the motion to dismiss assailing the sufficiency of the complaint does not hypothetically aomit allegations of which the court will take judicial notice of to ie not rue, nor does the rule of hypothetical admission apply to legally impossible facts, or to facts inadmissible in evidence, or to facts that appear to be unfounded by record or document included in the pleadings. (Ileirs of Sotto v. Palicte, GA. No 159691, February 17, 2014). Allegation of prior recourse to compro:nise in u consplaint between linmediate members of fasnily is waivable. ‘The ground for motion to dismiss that the: complaint must alleged 2 condition precedent is waived if itis not alleged In this case, the complaint did not allege a prior recourse to compromise. Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim, namely: (a) Jack of jurisdiction over the subject matter; (b) litis pendentia ; (c) res judicata ; and (d) prescription of action. (P.L. Uy Realty Corporation v. ALS Management and Development Com, GR. No. 166462, 24 October 2012, 604 SCRA 453, 464-465) Specifically in Gumobon v. Larin, 422 Phil 222, 230 {2001} ‘That a condition precedent for filing the clairn has uot been complied with, a ground for a motion to dismiss emanating from the law that no suit between members irom the same family shall prosper unless it should appear from the 9 | ABRC2026.Pointers in Remedial Law (combined with pointers 204S)segreyate/EVSA\Verysverified complaine that earnest efforts towarti a compromise have been made but had failed, is as the Rule so words, a ground for a motion to dismiss. Significantly, the Rule requires that such a motion should be filed "within the time for but before filing the answer to the complaint or pleading asserting a claim.” The time frame indicates that thereafter, the mation to dismiss based on the absence of the condition precedent is barred. It is 50 inferable from the opening sentence of Section 1 of Rule 9 stating that defense and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis pendentia ; res Judicata; and prescription of action. Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed is not one of the exceptions, Upon such failure, the defense is deemed waived. (Heirs of Dr. Favis, Sr. v. Gonzales, et al, GR.No, 185922, january 15, 2014). Tests in pendency of another action; more appropriate action test. In the 1956 case of Teodoro v. Mirasol the Court deviated ‘rom the "priorty-in-time rule” and applied the “more appropriate action test” and the “anticipatory test.” ‘The “more appropriate action test” considers the real issue raised by the pleadings and the ultimate objective of the parties; the more appropriate action is the one where the real issues raised can be fully and completely setiled. InTeadoro, the lessee filed an action for declaratory relief to fix the period of the lease, but the lessor moved for Its dismissal because he had subsequently filed an action for ejectment against the lessee, The unlawful detalner sult was the more =ppropriate action to resolve the real issue between the parties - whether or not the lessee should be allowed to continue ‘occupying the land under the terms of the lease contract: this was the subject matter of the second sult for unlawful detainer: and was also the main or principal purpose of the first sut for declaratory rele. Anticipatory test. In the “anticipatary test” the bona fides or good faith of the parties is the critical element. If the first suit is filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal, then the first suit should be dismissed. in Teodoro, thatthe first action, declaratory relief, was fled by the lessee to anticipate the filing of the second action, unlawful detainer, considering the iessor's letter Informing the lessce that the lease contract had expired Application of more appropriate test & anticipatory test. In University Physician Services, Inc. v. Court of Appeals, the "more appropriate action test" and “antielpatory test" were both applied. In this case, the new owner of an apartment sent a demand letter to the lessee to vacate the leased apartmen’ unit. When the lessee filed an action for damages and injunction against the new owner. the new owner moved for the dismissal of the action for damages on account of the action for ejectment it had also filed. The ejectment suit is the more appropriate action to resolve the issue of whether the lessee had the right to occupy the apartment unit, where the question of possession is likewise the primary issue for resolution. The lessee, after her unjustified refusal to vacate the premises, was aware that an ejectment case against her was forthcoming; the lessee's filing of the complaint for damages and injunction was ‘buta canny and preemptive maneuver intended to black the new owner's action for ejectmnent. RULE 17 - DISMISSAL OF COMPLAINT Bffectif plaintiff serves notice of dismissal. ‘A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer oF of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice opérates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (Sec. 1, Rule 17, Rules of Court). Under the above-cited rule, this confirmation is the only qualification imposed on the right of a party to dismiss the action before the adverse party files an answer. (0.8. Jovenir Construction and Development Corporation v. Macamir Realty and Development Corporation, 520 Phil. 318 [2006]). In this case, the dismissal of the action therefore became effective upon that confirmation by the RTC despite the subsequent filing of the motions for partial reconsideration, (Hontiveros-Baraquel. a. v, Toll Regulatory Board, et al, G.R. No, 181293, February 23, 2015). Dismissal with prejudice. Dismissal with prejudice under Rule 17. Sec. 3 of the Rules of Court cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Pertinent hereto is Articie 494 ‘of the Civil Code. Between dismissal with prejudice under Rule 17, Sec. 3 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a co-owner through the promulgation of procedural rules. Substantive law cannot be amended by a procedural rule. This further finds support in Art 496 of the New Civil Code. ‘Thus, for the Rules to be consistent with statutory provisions, the Court held that Are. 494 is an exception to Rule 17, Sec. 3 of the Rules of Court to the effect that even ifthe order of disinissal for failure to prosecute is silent on whether or not it {is with prejudice, it shall be deemed to be without prejudice. In the case at bar, since the co-ownership is stil subsisting 30-70 in favor of respondent spouses Candelario, there is no legal bar preventing herein respondents from praying for the partition of the property through counterclaim. (VILMA QUINTOS, et al. v. PELAGIA I. NICOLAS, et al, GR. No. 210252, June 25, 2014, Velasco, J), Effect if the plaintiff fails to prosecute the cuse for an unreasonable length of time. ‘The case can be dismissed for failure to prosecute. Under the Rules. if, for no justifiable cause, the plaintifs Iails to appear on the date of the presentation of his evidence in chief an the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the comptaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect uf adiudication upon the merits, unless otherwise declared by the court. (Rule 17, Sec. 3, Rules of Court; Phil. Charter Insurance Corp. v. Explore Maritime Co., Ltd, et al, G.R. No. 175202, September 7, 2011, Leonardo-de Castro, J, 10 | ADRC2016.Pointer in Remedial Law (combined with pointers 201S)seeregate/EVSAJery=‘Unqualified dismissal is dismissal with prejudice; cannot be refilied; adjudication on the merits requirements. Ifa case was dismissed for failure to prosecute but the order did not state the reasons for the dismissal, the dismissal {5 Patent on its face. I it simply states its conclusion that the case should be dismissed for non prosequitur,a legal conclusion, but does nat state the facts on which this conclusion is based iti not valid, Dismissals of actions for failure of the plaintiff to prosecute is authorized under Section 3, Rule 17 of the Rules of Court. Itis an unqualified order and, as such, Is deemed to be a ‘Gismissal with prejudice. “Dismissals of actions (under Section 3) which do not expressly state whether they are with or without prejudice are held to be with prejudice.” Asa prejudicial dismissal, dismissal order Is also deemed to be a judgment {on the merits so that can no longer be refiled on the principle of res judicata. Procedurally, when a complaint is dismissed for failure to prosecute and the dismissal is unqualified, the dismoissal has the effect ofan adjudication on the merits As an adjudication on the merits, itis imperative that the dismissal order conform with Section 1, Rule 36 of the “ules of Court on the writing of valid judgments and final orders. The dismissal order clearly violated this rule for it failure to of close how and why the petitioner failed to prusecute Its complaint. Thus, nether the petitioner nor the reviewing court able to know the particular facts that had prompted the prejudicial dismissal, Had the petitioner perhaps faled to appe at 2 Scleduted trial date? Had it faled to take appropriate actions for the active prosecution ofits complaint for an unecosonable length of time? Had it failed to comply with the rules or any order of the trial court? The December 16, 200% dismissal order does not say. (Shimizu Phils. Contractors, Inc v. Magsalin, etal. (GR. No. 170026, june 20, 2012}, Dismissal of main action; counterclaim can be decided independently, jis the rule now stands, the nature of the counterclaim notwithstanding, the dismissal of the complaint does not ipso {ire result in the dismissal ofthe counterclaim, and the latter may remain for independent adjudication of the court provided spar auch counterciaim, states a suicient cause of ation and does notlabor under any infirmity that may warrant its outright Giamissal. Stated differently, the Jurisdiction of the cours over the counterclaim that appears to be valid on is face, including the grart of any rellef thereunder, is not abated by the dismissal of the main action. The courts authority to proceed with the disposition of the counterclaim independent of the main action is premised on the fact that the counterclaim, on its own, ‘raises a novel question which may be aptly adjudicated by the court based on Its own merits and evidentiary support. (Dio, ot al. v.Subie Bay Marine Exploratorlum, Inc, GR. No. 189532, June 11, 2014, Perez, }) RULE 25 & 26 ~ Interrogatories to Parties & Request for Admission Written interrogatories must be served upon a party so he may be calted as adverse purty to the witness stand. Asa rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed. unless written {Mterrogatories are first served upon the latter. This is embodied in Section 6, Rule 25 of the Rules, which provides that unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with write, interrogatories may not be compelled by the adverse party to give testimony in apen court orto give a deposition pending appeal One of the purposes of the above rule is to prevent fishing expeditions and needless delays; itis there to maintain order and facilitate the conduet of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case i i later opts to call the adverse party to the witness stand as its witness, Instead, the process could be treated as a fishing expedition or an attempt at delaying the Proceedings; it produces no significant result that a prior written interrogatories might bring. (Sps. Afulugencia v. Metrobank, ‘tal, GR. No. 185145, February 5, 2014), Effect fa party refuses to obey order of production and inspection of documents, {fa party refuses to abey the order of producxion and inspection of documents, he can even be cited in contempt. A person guilty of disobedience of or resistance to a lawful order of a court or commits any improper conduct ‘ending, directly or indirectly, to impede, obstruct, or degrade the administration of justice may be punished for indirect contempt. In Republic v. Sandiganbayan, C.R. No. 90478, November 21, 1991, 204 SCRA 212, t was said that to ensure thot availment of the modes of discovery is otherwise untrammeled and efficacious, the law imposes serious sanctions on the party who refuses to make discovery, such as dismissing the action or proceeding or part thereo!, or rendering judgment by default ‘against the disobedient pasty; contempt of court, or arrest of the party or agent of the party; payment of the amount of reasonable expenses incurred in obtaining a court order to compel discovery: taking the matters inquired into as established in accordance with the claim of the party seeking discovery; refusal to allow the disobedient party support or oppose designated claims or defenses; striking out pleadings or parts thereof; staying further proceedings. (Capitol Hills Golf { Country Club, Inc, etal. v. Sanchez, G.R. No. 182738, February 24, 2014). ‘Request for Admission; effect if there is no answer. Considering that respondents have already stated in thelr MTD and answer that petitioners failed to file any written claim for tax refund or credit. Their failure to fite a reply to the same is not an admission of the veracity and truth of the requested fact Under Rule 26, Secs. 1 & 2, ofthe Rules of Court, once a party serves a request for admission reyarding the truth of any material and relevant matter offct, the party to whory such request is served is given a period of fifteen (15) days within which ta file a sworn statement answering the same, Should the latter fail to file and serve such answer, each of the mateers of which admission is requested shall be deemed admitted. (See Marcelo v. Sandiganbayan, GR. No, 156608, August 28, 2007 S31 SCRA 305, 399; Manzano v, Despabiladeras, G.R. No. 148786, Devemiber 16,2004, 447 SCRA 123, 14s Motor Service Co, Inc v. Yellow Taxicab Co, Inc, 96 Phil. 68, 691-692 (1955)) The exception to this rule is when the party to whom such request for admission is served had already controverted the matters subject of such request in an earlier plending, Otherwise stated, if the matters in a request for admission have slready been admitted or denied in previous pleadings by the requested party, the latier cannot be coinpelled to admit deny them anew. tn turn, the requesting party cannot reasonably expect a response to the request and thereafter, assume or even demand the application of the implied admission rule m Section 2, Rule 26. (Limes v. Odones, GR. No, 186979, August 11, 2010, 628 SCRA 286). The rationale behind this exception had buen wlvcusea Ip the case of GIR ™. Manta ining Sorparation, GR. No, 183204, August 31. 2005, 460 SCRA S71, citing Concrete Agureyotes Corvoration v. CA, $34 Pl {1997}; Metro Manila Shopinig Mecea Corp, ct av. Ms. Liberty Yoledo: tal, Git. No. 100048, june S, 2013) 11 | ABRC2016.Pointers in Remedial awe (comiined with poinzers 2015}cegregate/EVSAVCAySRULE 33 - DEMURRER TO EVIDENCE Demurrer to evidence filed with leave of court and granted; accused has the right to present evidence. |f demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the Civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist (Salazar v. People, 458 Phil, 504 (2003). This is because when the accused files a demurrer to evidence, he has not yet a'iduced evidence both on the criminal and civil aspects of the case. The only evidence on record is the evidence for the Prosecution. What the trial court should do is issue an order or partial judgment granting the demurrer to evidence and acquitting the accused, and set the case for continuation of trial for the accused to adduce evidence on the civil aspect of the case and for the private complainant to adduce evidence by way of rebuttal. Thereafter, the court shall tender judgment on the civil aspect ofthe case, (Salazar v. People; Dayap vs. Sendiong). RULE 34 - JUDGMENT ON THE PLEADINGS Judgment on the pleadings; when proper. Judgment on the pleadings is proper when an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, An answer fails to tender an issue if it does not comply with the requirements of 2 specific denial as set out in Sections 8 and 10, Rule 8 of the 1997 Rules of Civil Procedure, resulting in the admission of the ‘material allegations of the adverse party's pleadings. In Mongao v. Pryce Properties Corporation, S04 Phil. 472 (2008), it was likewise held that where in answer falls to tender an jssue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. The answer would fail to tender an issue, of course, if does not comply with the Fequirements for a specific denial set out in Section 10 (or Section 8) of Rule 8; and it would admit the material allegations of the adverse party’s pleadings not only where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all" (See also: Asian Construction & Dev. Corp. v. Sannaedle Co., Ltd,, GIR No. 181676, june 11, 2014, Peralta, RULE 35 - SUMMARY JUDGMENT Nature of summary judgment. ‘Summary judgment is a procedural device resorted to in arder to avoid fong drawn out litigations and useless delays When the pleadings on file show that there are no genuine issues of fact to be tried, the Rules allow a party to obtain Immediate relief by way of summary judgment, that is, when the facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings tender a genuine issue, summary judgment is not proper. A “genuine issue” is such issue of fact which requires the presentation of evidence as distinguishes! from a sham, ficitions, contrived or false claim. Section 3 of the said rule provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. A summary judgment 1s Permitted only if there is no genuine issue as to any material fact and moving party is entitled to a judgment as a matter of w. A summary judgment is proper if, while the pleadings on their face appear to raise issues, the affidavits, depositions, and admissions presented by the moving party show that such issues are not genuine. (Ferrer v, Sps. Diaz, et al, G.R. No. 165300, April 23. 2010). RULE 37 - MOTION FOR NEW TRIAL OR RECONSIDERATION ‘Neypes principle reiterated; reasons for the rule; retroactive. In Go v. Sunbanum, et al, G.R. No. 168240, February 9, 2011, Del Castillo, J, the Neypes principle was once again given retroactive effect. Justifying the same, the SC ruled that when a procedural rule is amended for the benefit of litigants for the furtherance of the administration of justice, It shall be retroactively applied to likewise favor actions then pending, as equity delights in equality In Neypes it was held that a tiugant is given another fresh period of 18 days to perfect an appeal after receipt of the order of denial of his/her motion for reconsideration /new: trial before the RTC. It was said: To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration, Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional ‘Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeats and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule alms to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. The Neypes principles applies to criminal cases. (Yu v. Judge Tatad. February 9, 2011; jose v. javellana, G.R No. 128239, January 25,2012). RULE 98 ~ Relief from judgment Doul period under Rule 38 Is jurisdictional. ‘ petition for relief from judginent was filed out of time if filed beyond the however, the irial court erred in counting the 69-day period to file a petition for relief from the date of finality of the trial court's decision, Rule 38, Section 3 of the 1997 Rules uf Civil Procedure is clear that the 60-day period must be counted after petitioner fearns of the judgment or final order. The period counted trom the finalisy of judgment or tinal ardar ie the six: month period. Section 3, Rule 38 uf the 1997 Rules of Civil Procedure states a petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after petitioner learns of the judgment, final order, or other Proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such sriods provided. for by Rule 12 | aBRC2016.Pointers in Remedial Law (combined with pointers 201S)segrecate/EVSALctysProceeding was taken; and must be accompanied with affidavit, showing the fraud, accident, mistake or excusable negligence Felied upon and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. The double period required under Section 3, Rule 36 is jurisdictional and should be strictly complied with. (Spouses Reyes v. Court of Appeals, 557 Phil. 241, 248 (2007) [Per J. Garcia, First Division]). A petition for relief from judgment filed beyond the reglementary period is dismissed outright. Tis is because a petition for relief from judgment is an exception to ‘he public policy of immutability of final judgments. (Madarang v. Sps. Morales, GX. No, 199283, June 9, 2014, Leonens |) RULE 39 ~ EXECUTION OF JUDGMENT Judgment on ownership carries with it possession. ‘As a general rule, a writ of execution should conform to the dispositive portion of the decision to be executed: an ‘execution js void if itis in excess of and beyond the original judgment or award. The settled general principle is that a writ of ‘execution must conform strictly to every essential particular of the judginent promulgated and may not vaty the terms of the Judgment it seeks to enforce, nor it may go beyond the terms ofthe judgment sought to be executed. However, itis equally settled that possession js an essential atribute of ownership. Where the ownership of a parce! of land was decreed in the judgment, the delivery of the possession of the land should be considered included in the decision, it appearing that the defeated party's claim to the possession thereof is based on his claim of awnership. (Baluyot v. Guiao, 373 Phil. 1013 (1999), Furthermore, adjudication of ownership would include the delivery of possession ifthe defeated party has not shown any right to possess the land independently of his claim of ownership which was rejected. In the present case, the court had already declared the disputed property as owned by the State and that De Leon does not have any right 20 Possess the land independently of his claim of ownership. (De Leon v. Public Estates Authority, et al, GR. No. 181970; PEA, et al.v. Hon. Alaras, etal, GR. No, 182678, August 3, 2010, Peralta, )) Discretionary execution; stay of same. ‘The court may stay immediate execution of a judgment where supervening events bring about a material change in the situation of the parties which makes the execution inequitable, or where there is no compelling urgency for the execution because It ls not justified by the prevailing circumstances. However, the reason put forward by respontients is insufficient to ‘werit a stay execution. Nowhere in the compromise agreement is it stated that the obligation to pay is conditioned upon a Party's receipt of the payment due from its projects with other companies. A party caniot renege on his obligation under the agreement by claiming an inability to pay. t would be an anathema to the orderly administration of justice if such an easy aCuse is entertained to abrogate a final decision based on a compromise agreement. Nevther is there any supervening even which materially and substantially altered the situation of the parties such that execution would be unjust and inequitabve ‘The compromise agreement has the force of law between the parties unless it is void, there is a vice of consent, or there ts forgery, or if the terms are so palpably unconscionable. (HERNAN C, DALIDA v. SPOUSES ELISEO NAGUIT AND ALIC NAGUIT, G.R. No, 170083, june 29, 2007, Velasco, jr). Discretionary Execution PPAs monies, facilities and assets are government properties. PPA Is a government instrumentality charged with carcying out governmental functions through the management, supervision, control and regulation of major ports of the country. itis an attached agency of the Department of Transportation and Communication pursuant to PD S05. Ergo, they ar exempt from execution whether by virtue of a final judgment or pending appeal. Funds of PPA partake of government funds, and such may not be garnished absent an allocation by its Board or by statutory grant. if the PPA funds cannot be garnished and its properties, being government properties, cannot be levied via a writ of execution pursuant to a final judgment, then the trial court likewise cannot grant discretionary execution pending appeal, as it would run afoul of the established jurisprudence that government properties are exempt from execution, What cannot be done directly cannot be done indirectly. (SPCUSES CURATA v. PHILIPPINE PORTS AUTHORITY GR. Nos, 154211-12, june 22, 2009, VELASCO, JR. /), Execution pending appeal; financial situation, a good reason. The execution of a judgment pending appeal is an exception to the general rule that only a final judgment may be executed; hence, under Section 2, Rule 39 of the Rules of Court (Rules), the existence of “geod reasons” for the immediate execution of a judgment isan indispensable requirement as this is what confers discretionary power on @ court to Issue a writ of execution pending appeal. Good reasons consist of compelling circumstances justifying immediate execution, lest judgment becomes illusory, that is, the prevailing party's chances for recovery on execution from the judgment debtor are altogether nullified, The “good reason” yardstick imports a superior circumstance demanding urgency that will outweigh injury or damage to the adverse party and one such "good reason” that has been held to justify discretionary execution is the Defendant was under a state of rehabilitation and had ceased business operations, President and General Manager had permanently left the country with his farnily. These constitute such superior circumstances that demand urgency in the execution because respondents now run the tisk of its non-satisfaction by the time the appeal is decided with finality. The Fekabilitation receiver had manifested before the rehabilitation court the futility of rehabilitating NSSC because of the latter's insincerity in the implementation of the rehabilitation process. Clearly, respondents’ diminishing chances of recovery Som the favorable Decision is a good reason to justify immediate execution; hence, it would be improper to set aside the order granting execution pending appeal. (Centennial Guarantwe Assurance Corp. v. Universal Motors, et al, GR. 189358, October 8, 2014, Perlas-Bernabe, |) Rute 3¥, Sec. 10 sets the procedure for execution of judgment for specific acts. As a general rule, the writ of execution to iust conform to the dispositive portion of the decision to be executed; an execution is void if itis in excess of and beyond tie original judgment or award, The settled general principle is that a writ of execution must conform strictly to every essential particular of the judgment promulgated, and may not vary the terms of the judgment it seeks to enforce, nor may it go beyond the terms of the judgment sought to be executed Nonetheless, a judgment is not confined to what appears on the face of the decision, but extends as wel! to those necessarily inciuded therein or necessary theveto. (DiI, Philippines Corp. United Ranke and Flic Asso.-Federation af Free Workers v. Buklod ng Manggagawa DHL Philippines Carp., 478 Phil. 842, 853; Jaban v. Court of Appeals, 421 Phil. 896, 904: 370 SCRA 221, 228 (2001). Thus, in Perez v. Evice, 111 Phil. 564 (1961), where the ownership of a parcel of fand was decreed 13 | ABRC2016 Pointers in Remedial Law (combined with pointers 2045}segragate/EVSA/erysin the judgment, the delivery of possession of the land was considered included in the decision where the defeated party's claim to possession was based solely on his claim of ownership. (See also Baluyut v. Gulao, 373 Phil. 1013 (1999); Tumibay, et al, v.Sps. Soro, etal, GR. No. 152016, April 13, 2010}, Requirements ifa judgment is a special judgment. ‘When a judgment requires the performance of any act other than the payment of money oa special judgment, or the sale or delivery of real or personal property, a certified true copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party ar person may be punished for contempt if he disobeys such judgment. See. 11), ‘5-year period to execute; 10-year to revive a judgment ‘An action upon a judgment must be brought within 10 years from the time the right of action accrues, (Aart. 1144, NCC). Furthermore, the law provides that once a judgment becomes final and executor, the prevailing party falls to have the decision enforced by a motion after the lapse of five years, the sald judgment is reduced to a right of action which must be ‘enforced by the institution of a complaint in a regular court within ten years from the time the judgment becomes final ‘When the complaint for revival of judgment was filed, it had already been eleven (11) years from the finality of the judgment he sought to revive. Clearly, the statute of limitations had set in, (Villeza v. German Management & Services, Inc, et al, G.R No. 182937, August 8, 2010). It was the fault of the plaintiff, that he asked for suspension of the execution of the judgment. Being the prevailing party, he should be more interested in the execution of the judgment, That is why.the Rules provide for a period to execute to prevent the prevailing party from sleeping on his tight to execute the same. Res Juiiicata; Requisites; donation declared void action to quiet title will not prosper anymore. After the final and executory judgment declaring the donation vold, the donee cannot filed an action for quieting of title against the donor, because of the principle of res judicata. Under the principle of conclusiveness of judgment, such ‘material fact becomes binding and conclusive on the parties. When a right or fact has been juridically tried and determined by a court of competent jurisdiction, or when an opportunity for such trial has been given, judgment uf the court as Jong as it remains unreversed, should be conclusive upon the parties and those in privity with him. Thus, petitioners can no longer question donor's ownership over the land in the suit for quieting of title. Simply put, conclusiveness of judgment bars the ‘elitigation of particular facts or issues in another litigation between the same parties on a different claim or cause of action Van v. CA, 415 Phil. 675 (2001); Sps. Noceda v. Directo, G.R. No. 178495, July 26, 2010), Terceria is the remedy if a third party's property is levied upon to satisfy lability of another. ‘The remedy of a person whose property ts levied upon to satisfy a money judgment against another is terceria. The reason behind such right is that it is a basie principle of law that money judgments are enforceable only against the property incontrovertibly betonging to the judgment debtor, and if the property belonging to any thied person is mistakenly levied upon to answer for another man’s indebtedness, such person has all the right to challenge the levy through any of the remedies Provided for under the Rules of Court. Section 16, Rule 39 specifically provides that a third person may avail himself of the Femedies of either terceria, to determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor, or an independent “separate action” to vindicate his claim of ownership and/or possession over the foreclosed property. However, the person other than tie judgment debtor who claims ownership or right over levied perties is not precluded from taking other legal remedies to prosecute his claim. (Gagoomal v. Villacorta, G.R. No, 192833 18 January 2012, 663 SCRA 444, 454-455; Villasi v, Garcia, etal. G.R. No. 190106, january 15, 2014), Res judicata; distinctions between bar by prior judgment from conclusiveness of judgment. Res judicata has two concepts: (1) bar by prior judgment as enunciated in Rule 39, Section 47 (b) of the Rules of Civil Procedure; and (2) conclusiveness of judgment in Rule 39, Section 47 (c) There is bar by prior judgment when, as between the first case where the juegment was rendered, and the second ‘ase that is sought to be barred, there is identity of partes, subject matter, and causes of action. Where there is identity of Parties and subject matter in the first and second cases, but no identity of eauses of ation, there is conclusiveness of Judgment. ‘The first judgment is conclusive only as to those matters actually and directly controverted and determined, not as to matters merely involved therein: (RCBC v. Royal Cargo Corp., GR. No.179756, October 2, 2008). Revival of judgment; nature. ‘An action for revival of judgment is a totally separate and distinct case from the original case. In Saligumba v. Palanog, 593 Phil. 420 {2008}, it was said. ‘An action for revival of judgment is no more than 2 procedural means of securing the execution of a previous judgment which has become dormant after the passage of five years without it being executed upon motion of the prevailing party. It is not intended to re-open any issue affecting the merits of the judgment debtur’s case nor the propriety or correctness of the first judgment. An action for revival of judgment is a new and independent action, different and distinct from either the recovery of property case or the reconstitution case {in thls case, the original action for partition), wherein the cause of action is the decision itself and not the merits of the action upon which the judgment sought to be enforced is rendered. (Clidoro, etal. v. jalmanzar, et al, GR No. 176598, july 9, 2014, Peralta. }) Bffectif parties are different. There may be instances where the patties in the original ease and in the subsequent action for revival of judgment svould not be exactly the same. The mere fact that the names appearing as parties inthe complaint for revival of judgment are diferent from the names of the parties inthe original case would not necessarily mean that they are not the real parties-in interest. What isimportant is that, as provided in Section 1, Rule 3 of the Rules of Court. they are “the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the’avails of the sult.” Definitely, as the prevailing parties in the previous case for partition, the plaintiffs in the case for revival of judgment would be benefited by the enforcement of the decision inthe partition case. (Clidoro, et al.v.jalmanzar, etal, GR. No, 176598, July 9.2014, Peralta.) 114 |ABRC2016 Pointers in Remedial Law (combined with pointers 2015)segrepate/EVSA/Erys‘Nature of identity under the principle of res judicata. Only substantial identity is necessary to warrant the application of res judicata. The addition or elimination of some parties does not alter the situation. There is substantial identity of parties when there is a community of interest between 9 Party in the first case and a party in the second case albeit the later was not impleaded in the fist ease. (Heirs of Faustina Adalld v. Court of Appeals, 498 Phil.75, 87 [2005}), APPEAL Petition for review on certiorari v. special civil action for certiorari A petition for review on certiorari under Rule 45 of the Rules of Court and a petition for certiorart under Rule 65 of the Rules of Court are two and separate remedies A petition under Rule 4S brings up for review errors of judgment, while a Petition for certiorari under Rule 65 covers errors of jurisdiction or grave abuse of discretion amounting to excess or lack of Jurisdiction, Grave abuse of discretion is not an allowable ground under Rule 45. A petition for review under Rule 45 of the Rules of Court is a mode of appeal. However, the provision must be readin relation to Section 1. Rule 122 ofthe Revised Rules 2f Court. which provides that any party may appeal from a judgment or final order “unless the accused will thereby be placer {n double jeopardy.” The judgment that may be appealed by the aggrieved party envisaged in the Rule isa judgment convicting the accused, and nota judgment of acquittal, The State is barred from appealing such judgment of acquittal by a petition or review. A judgment of acquittal may be assailed by the People in a petion for certiorari under Rule 65 of the Rules of Court without placing the accused in double jeopardy. (Villareal v. liga, GR. No. 166995, January 13,2014), ‘The period under Rule 45 is 15 days; under Rule 65, 60 days. The issue in Rule 45 is pure question of law; the issue in Rule 65 is jurisdiction The writ of execution may be appealed in certain cases. The following are the instances where a writ of execution may be appealed: 1) the writ of execution varies the Judgment; 2) there has been a change in the situation of the-parties making execution inequitable or unjust; 3) execution is Sought to be enforced against property exempt from execution; 4) it appears that the controversy has never been subject to the judgment of the court; 5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or 6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is |ssued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued witho authority. In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error oF certiorari), or by a special civil action of certiorari, prohibition, or mandamus. The Instant case falls under one of the ‘exceptions cited above. The fact that Danilo has left the property under dispute is a change in the situation of the parties that ‘would make execution inequitable or unjust. We find that Danilo's situation merits a relaxation of the rules since special circumstances are involved that is to determine if his allegation were true would allow a final resolution of the case. The writ of execution sought to be implemented does not take into consideration the circumstances that merit a modification of judgment. Given that there is a pending issue regarding the execution of judgment, the RTC should have afforded the partie: ‘the opportunity to adduce evidence to determine the period within which Danilo should pay monthly rentals before issuing the writ of execution in the instant case, (DANILO L. PAREL v. HEIRS OF SIMBON PRUDENCIO, G.R No. 192217. March 2, 2911 Velasco.) Well.settled is that the sheriff's duty in the execution of a writ is purely ministerlal; he is to execute the order of the court strictly to the letter. He has no discretion whether to execute the judgment or not. Under said Sec. 19, Rule 70, a judgment on a forcible entry and detalner action is inade immediately executory 10 avoid further injustice to a lawful possessor. The defendant in such a case may have such judgment stayed only by (a) erfecting an appeal; (b) filing a supersedeas bond; and (c) making a periodic deposit of the rental or reasonable ‘compensation for the use and occupancy of the property during the pendency of the appeal. The failure of the defendant to comply with any of these conditions is a ground for the outright execution of the judgment, the duty of the court in this respect being ministerial and imperative. Hence, if the defendant-appellant has perfected the appeal but failed to file a supersedeas bond, the immediate execution of the judgment would automatically follow. (ATTY. VIRGILIO P. ALCONERA v. ALFREDO 7 PALLANAN AM, No. P-12-3069, January 20, 2014, Velasco, |r. j,) Neypes principle does not apply to administrative cases, tis settled that the “fresh period rule” in Neypes applies only to judicial appeals and not to administrative appeals In Panolino v. Tajata, G.R. No. 183616, june 29, 2010, the Court was confronted with a similar Issue of whether the “iresh period rule” applies to an appeal filed from the decision or order of the DENR regional office to the DENR Secretary, an apyeal which is administrative in nature. [t was held that the “fresh period rule” only covers judicial proceedings under the 1997 Rules of Civil Procedure. As reflected in the above-quoted portion of the decision in Neypes, the "fresh peried rule” shall apply to Rule 40 {appeais from the Municipal Trial Courts to the Regional Trial Courts); Rule 41 (appeals from the Regional Trial Courts to the Court of Appeals or Supreme Court): Rule 42 (appeals from the Regfonal Trial Courts ta the Court of Appeals}; Rule 43 (appeals from quasi-judicial agencies to the Court of Appeals); and Rule 45 (appeals by certiorari to the Supreme Court) Obviously, these Rules cover judicial pro-eedinys under the 1997 Rules ef Civil Procedure. (San Lorenzo Ruvz Builders & Dev. Corp, Inc, etal. v. Maria Cristina Banya, GR. No. 154702, April 20, 2015) ote anatfrom CC 15 | ABRC2016 Pointers in Remedial Law (combined with pointers 2015)segregate/EVSA/ceYsSince the decision of the RTC in the petition for certiorari under Rule 65 was rendered in the exercise of its original Jurisdiction, appeal from the said RTC decision to the Court of Appeals should have been made by filing a notice of appeal not petition for review under Rule 42, However, in numerous cases, the Court has allowed liberal construction of the rules when to do so would serve the demands of substantial justice. Dismissal of the apzeals purely on technical grounds is frowned upon, Its better to excuse a ‘echnical lapse rather than dispose of a case on technicality, giving a false impression of speedy disposal of cases while actually resulting in more delay if not miscarriage of justice: Inthe present case, a dismissal on technicality would only mean a new round_of litigation between the.same parties for the same-cause-of-action,-over the same subject matter.-Thus, owithstanding petitioner's wrong mode of appeal, the Court of Appeals should not have so ensily dismissed the petition, (BF Citiland Corp. v. Otake, GR. No. 173351, July 29, 2010). Review of final judgments ur final orders of the Ombudsman {n administrative disciplinary cases, an appeal from the OMB's decision should be taken to the CA under Rule 43, unless ‘she decision is not appealable owing to the penalty imposed. ‘The nature of the case before the Office of the Ombudsman (OMB) determines the proper remedy available to the aggrieved party and with which court it should be filed. In administrative disciplinary cases, an appeal from the OMB's decision should be taken to the CA under Rule 43, unless the decision is not appealable owing to the penalty imposed Jn the case at bar, the Ombudsman, in the exercise of his auministrative disciplinary jurisdiction had, after die {avestigation, adjudged petitioners guilty of grave misconduct and dishonesty and meted the corresponding penalty, Recourse to the CA via‘a Rule 43 petition is the proper mode of appeal, Rule 43 governs appeals to the CA from decisions or final orders sean tical agencies, (FLOR GUPILAN-AGUILAR. etal. v. OFFICE OF THE OMBUDSMAN, et al, GIR No. 197307, February 6, 2014, Velasco, jr. J) RULE 57 - ATTACHMENT. Discharge of attachment; meaning of the words “deposit” and “amount.” Once the writ of attachment has been issued, the only remedy of the petitioners in lifting the same is through a cash denesit or the fling of the counter-bond. Petitioner's argument that it has the option to deposit real property instead of ‘depositing cash or filing a counter-bond to discharge the attachment or stay the implementation thereof Is unmeritorious Im fact, in Security Pacific Assurance Corporation v. Tria-Infante, it was held that one of the ways to secure the discharge of an attachment is for the party whose property has been attached or a person appearing on his beball, to post $ counterbond *make the requisite cash deposit in an amount equal to that fixed by the court in the order of attachment, ‘While its true that the word deposit cannot only be confined or construed to refer to cash, a broader interpretation thereof is not justified in the present case for the reason that a party seeking a stay of the attachment under Section 5 is ‘required to make a deposit in an amount equal to the bond fixed by the court in the order of attachment of to the value of the property to be attached. The proximate relation of che word “deposit” and "amount" is unmistakable in Section of Rule 57 Plainly, in construing said words, it can be safely concluded that Section § requires the deposit af money az the word amount” commonly refers o or is regularly associated with a sum of money. (Luzon Dev. Bank, etal v. Erlinda Krishman, GR. ‘No. 203530, April 13, 2015, Peralta |) Facts t prove in Rule 57 Fora writ of atachiment oisue under Se (8), Ral 57 ofthe Rules of Cour. the appcant mus suicienyshow the fatal circumstances ofthe alleged aud In contacting she debe er incising the obligation pon whieh te seo brovght : ‘The Court ruled that the Republic has sufficiently discharged the burden of demonstrating the commission of fraud conankted ty the respondents a condo sine qun non forthe issuance of awe preliinay atachment Th man Supporting proving document ofthe Republle was uagvaltedy admlted in evidence bythe Sandiganvayan. es incargrous therefor, forthe Sandlganbayan to deny the writ of preliminary atachiment when the pices of evidence on record which used and based its findings and cocasons in denying the demurrer to evdenes were te same ones which demanawrate the propriety ofthe writ of preliminary atachmen. The denial o the prayed wei ths, evlentlycansttutes grave abuse o alaceton on the part of Sandiganbayan, (REPUBLIC OF THE PHILIPPINES w ESTATE OF ALFONSO LIM, SR.‘ al, GR No 168000, uy 22, 2009, Velnc,) RULE 58 - INJUNCTION The injunctive writ is conditioned on the existence of a clear and positive right of the applicant which should be protected. A.court does not ordinarily issue injunction to prevent foreclosure of a mortgage. ‘The injunctive writ is conditioned on the existence of a clear and positive right of the applicant which should be protected, the writ belng the strong arm of equity, an extraordinary peremptory remedy whick can be availed of only upon the existence of well-defined circumstances. In this case, contrary to what the RTC ruled, there was no urgent necessity to issue the wet to protect the rights and interest of petitioners as owners. First, they could participate tn the foreclosure sale and get their property back ‘unencumbered by the payment of the obligations that they acknowledged in the first place. Second, a furvclosure sate does not ipso facto pass title to the winning bidder over the mortgaxed property. Petitioners continwe to own the inortgaged property sold in an auction sale until the expiration of the redemption period. Tard, petitioners have one yea from the auction sale to redeem the mortgaged property. The one-year redemption penod ts another race perled accorded petitioners to pay the outstanding debt, which would be converted to the proceeds of the forved sale pursuant to the requisites under Sec. 6 af Republic Act No. 3135, a8 amended, for the redemption of a property sold in an extrajudicial sale, also in accordance with Sec. 78 of the General Banking Act. as aniended by Presiciential Decree No. 1928. It is only upon the expiration of the redemption Period, without the judgment debtors having made use of their right of redemption, does ownership ofthe land sold become consolidated in the purchaser or winning bidder (ST. JAMES COLLEGE OF PARARAQUE, et al, v. EQUITABLE PCI BANK, Git No, 179441 August 9, 2610 VELASCO, [R, J) 1G | ABR 2026 Pointers i: Remedi! Law (combined! with pointers 20°S}eearagate/EVSAerysPetition for injunction to prevent the foreclosure does not lie. The right of PNB to extrajudicially foreclose on the real estate mortgage in the event of PTEI's default is provided ‘under various contracts of the parties. Foreclosure is but a necessary consequence of non-payment of mortgage indebtedness. 1m view of PTEI's failure to settle its outstanding obligations upon demand, it was proper for PNB to exercise its right to foreclosur* on the mortgaged properties. It then became incumbent on PTEI and BAGCCI, when they filed the complaint and sought the issuance of a writ of preliminary Injunction, to establish that they have a clear and unmistakable right which ‘requires immediate protection during the pendency of the action, otherwise injunction would not le. ‘Where the parties stipulated in thelr credit agreements, mortgage contracts and promissory notes that the mortgagee 4s authorized to foreclose the mortgaged properties in case of default by the mortgagors, the mortgagee has a clear right to ‘or-closure in case of default, making the issuance of a Writ of Preliminary Injunction improper. (Palm Tree Estates, Inc, et al ¥. PNB, GR No. 159370, October 3, 2012, Leonardo-de Castio) Injunction is not available if contract has already expired. A petitioner for an injunctive relief has no more legal rights under the service contract which already expired. Therefore, it has not met the first vital requisite that it must have material and substantial rights to be protected by the courts, (Manila International Airport Authority v. Olongapo Maintenance Services, Inc, G.R. Nos. 146184-85, 161117 and 167827, January 31, 2008, 543 SCRA 269, 289-289). An injunction is not a remedy to protect or enforce contingent, abstract, cor fture rights; it will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not tive rise to.a cause of action. There must exist an actual right. (Go v. Villanueva, Jr, GR. No. 154623, March 13, 2009, 581 SCRA 126, 133-134, citing Republic v. Villarama, jr, G.R. No. 117733, September 5, 1997, 278 SCRA 736, 749). Verily, patitloner ‘annet lay claim to an actual, clear and positive right based on an expired service contract. Moreover, well-entrenched in this jurisdiction that no court can compel a party to agree to a contract through the instrumentality of a writ of preliminary injunction, (See Manila International Airport Authority v. Olongapo Maintenance Services, inc. supra note 33 at 289; Light Rail Transit Authority v. Court of Appeals, GR. Nos. 13927576 and 140949, November 25, 2004, 444 SCRA 125, 139; and National Food. Authority v. Court of Appeals, GR. Nos. 115121 25, February 9, 1996, 253 SCRA 470, 479), A contract can be renewed, revived or extended only by mutual consent of the Parties, (Thunder Security & Investigation Agency, etc. v. NFA, etal, G.R. No. 182042, July 27, 2011). Remedies available in favor of a defendant against a writ of attachment. (2) The defendant can move to discharge by making a cash deposit or giving a counter - bond to secure the payment of the Judgment (See. 12); (2) The defendant may move to quash the attachinent because it may have been improperly or irregularly issued or that, {thas no basis. (Sec 13). (3) Iattachment is based on fraud, the remedy i to file a counterbond. (Metro, Inc, etal. v. Lara's Gifts & Decors Inc, et al, GR. No, 171741, November 11, 2009) RULE 63 - DECLARATORY RELIEF Petition for declaratory reliefis within the RTC's jurisdiction. SC has no jurisdiction; exception. Well-settled is the rule that a petition for declaratory relief must be filed with the Regional Trial Court as 2 rule as there are issues of facts to be resolved. . The Constitution as the subject matter; and the validity and construction of Section 8(1), Article VIII as the issue raised, the petition should properly be considered as that which would result in the adjudication of rights sans the execution process because the only relief to be granted is the very declaration of the rights under the document sought to be construed, le being so, the original jurisdiction over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact that only questions of law are raised in the petition, an action for declaratory relief is not among those within the ‘original jurisdiction of the Supreme Court as provided in Section 5, Article VII of the Constitution, ‘Atany rate, due to its serious implications, not only to government processes involved, but also to the sanctity of the Constitution, the Court deems it inore prudent to take cognizance of it. The SC could have dismissed the petition but due to the ‘transcendental importance of the issue involved, it took cognizance of the case as an exception, (Francisco Chaves v, Judicial & Bar Council, etal, GR. No. 202242, July i7, 2012). RULE 65 - CERTIORARI, PROHIBITION & MANDAMUS, Review of judgments and final orders or resotution of the Comelec and COA : Application of Rule 65 under Rule 64 The Court has consistently held that the phrase “decision, order, or ruling” of constitutional cummissions, the COMELEC included, that may be brought directly to the Supreme Court on certiorari is not all-encompassing. and that ft only relates to those rendered in the commissions’ exercise of adjudicatory or quasi-judicial powers. In the case of the COMELEC, this would limit the provision's coverage to the decisions, orders, or rulings issued pursuant to its authority to be the sole judge of generally all controversies and contests relating ty the elections, returns, and qualifications of elective offices, Consequently, Rule 64, which complemented the procedural requirement under Article IX-A, Section 7, should likewise be read in the same sense—that of excluding from its coverage decisions, rulings, and orders rendered by the COMELEC in the exercise of its administrative functions. In such instances, a Rule 65 petition for certiorari is the proper reniedy. ‘The instant petition revolves around the issue on whesher or not Smartmatic JV is eligible to participate In che bidding process for the COMELEC’s procurement of 23,000 units of optical mark readers. The case does not stem from an election controversy involving the election, qualification, or the returns of an elective office. Hence, Rule 64 Is not the proper remedy. (LEO Y. QUERUBIN, et al. vs. COMMISSION ON ELECTIONS EN BANC, et al., GR. No. 218787, December 08, 2015, Velasco, J.) Petition for mandamus may not ive issued to compel the PMA to restore Cadet Cudfo's rights aud entitlements as a full pledged graduating cudet. 17 | ABRC2016 Pointers in Remedi! Law (combined w winters 2015 )veuregate/EVSAVerysSuffice it to say that these matters are within the ambit of or encompassed by the right of academic freedom; therefore, beyond the province of the Court to decide. (University of the Philippines Board of Regents v. Ligot-Telan, G R. No 110280, October 21, 1993, 227 SCRA 342, 356). The powers to confer degrees at the PMA, grant awards, and commission officers in the military service are discretionary acts on the part of the President as the AFP Commander-in-Chiet. Borrowing, the words of Garcia, the SC sald that there are standards that must be met. There are policies to be pursued. Discretion appears to be of the essence. in terms of Hohfeld's terminology, what a student in the position of petitioner possesses is a privilege rather than a right. He cannot therefore satisfy che prime and indispensable requisite of a mandamus proceeding, Garcia v. The Faculty Admission Committee, Loyola School of Theology, 160-A Phil. 929 [1975}), Certainly, mandamus is never issued in doubtful cases. t cannot be availed against an official or government agenc; whose duty requires the exercise of discretion or judgment. (University of the Philippines Board of Regents v. Ligot-Telan Supra note 64, at 361-362). For a writ to issue, petitioners should have a clear legal right to the thing demanded, and ther Fhguld be an imperative duty on the part of respondents to perform the act sought to be mandated. (/sabelo rv. Perpetual Help College of Rizal, Inc, GR No. 103142, November 8, 1993, 227 SCRA 591, 597; Cudia, ete. v. The Superintendent of the PMA, etal, GR. No. 211362, February 24, 2015, Peralta, )), Nature of ejectment proceedings. Ejectment proceedings are summary proceedings only intended to provide an expeditious means of protecting actual possession or right to possession of property. The sole issue to be resolved is who is entitled to the physical or material ~ Possession of the premises or possession de facto. The issue of the validity of the title of respondents can only be assalled in gn action expressly instituted for that purpose. (Soriente v. Estate of the Late Arsenlo Concepcion, G.R. No. 160239, November 28, 2009, 605 SCRA 315). Section 48 of Presidential Decree No. 1529, specifically states that a certificate of title shall not be subject to collateral attack, and that it cannot be altered, modified or cancelled, except im a direct praceeding in accordance? with law. Ejectment; 2 kinds. ‘An efectment case can be. either for forcible entry or unlawful detainer. It is a summary proceeding designed to provide expeditious means to protect the actual possession or the right to possession of the property involved, (Barrientos v Rapal, GR. No. 169594. july 20, 2011, 654 SCRA 165, 170). The sole question for resolution in the case is the physical or ‘material possession (possession de facto) of the property in question, and neither a claim of juridical possession (passession de Juve) nor an averment of ownership by the defendant can outrightly deprive the trial court from taking due cognizance of the ase. Hence, even ifthe question of ownership is ralsed in the pleadings, like here, the court may pass upon the issue but only te determine the question of possession especially sf the question of ownership is inseparably linked with the question of Possession. (Pengson v. Ocampo, Jr. G.R. No. 13 1968, june 29, 2001, 360 SCRA 420, 425),The adjudication of ownership in ‘hat instance is merely provisional, and will not bar or prejudice an action between the same partles involving the ttle to the propeicy. (Fe U. Quijano v. Amante, G.R. No, 164277, October 8, 2014, Bersamin,)) Court may issue an order enjoining the execution of the judgment considering the change in the nature of the ttle of the lessor during the subsistence of the lease. {tis true that Section 21, Rule 70 of the Rules of Court provides that “the judgment ofthe Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.” However, st was ruled in Benedicto v. Court of Appeals, G.R. No, 157604, October 19, 2005, 473 SCRA 363, that on appeal the appellate court may stay the sald writ should circumstances require. x x x even if the RTC judgments in unlawful detainer eases are immediately executory, preliminary injunction may still be granted. (Amagan v. Marayag. 383 Phil 486 {2000] and Vda. De Legaspi v. Avendano, 169 SCRA 138 {1977)). |i Ciey of Naga v. Asuncion, 557 SCRA 526 (2008), that when exigencies in the case warrant i, the apyellate court may stay the writ of execution issued by the RTC in an action for ejectment if there are circumstances necessitating such action. An example of such exceptional circumstance can be seen in Laurel v. Abalas, 140 Phil 532 (1969). Therein, a defendant was ordered by the trial court to vacate the premises of the disputed property and return possession thereof to the plaintiffs, but while the ejectment case was on appeal, a judgment was promulgated in a separate case where the sale of the property to said plaintiffs was declared null and vold, making the plalntifs’ right to possess the disputed property inconclusive. The Couit ruled in said case that: Where the supervening events (occurring subsequent to the judgment) bring about a material change in the situation of the parties which makes the execution inequitable, or where there is no compelling urgency for the execution because it is not jusUifled by the prevailing circumstances, the court may stay immediate execution of the judgment (La Campana Dev. Corp. v. Ledesms, et. al, Gt No. 154152, August 25, 2010, Peralta }. Title not issue in ax action for forcible entry. Title is never an issue in a forcible entry case, the court should base its decision on who had prior physical possession. ‘The main thing to be proven in an action for forcible entry is prior possession and that same was lost through force, intimidation, threat, strategy, and stealth, so that it behoves the court to restore possession regardless of title ut ownership, In Pajuyo v. Court of Appeals, it was stressed that ownership or the right to possess arising from ownership Is not at ‘ssue In an action for recovery of possession. The parties cannot present evidence to prove ownership or right to legal pessession except to prove the nature of the possession when necessary to resolve the issue of physical possession. The saitie ls true when the defendant asserts the absence of title aver the property, The absence of title over the contested lot is not a ‘ground for the courts to withhold relief from the parties in an ejectment case. The only question that the court must resolve in éectment proceedings is ~ who is entitled to the physical pdssession of the premises, that is, to the possession de facto and not to the possession de jure. Itdoes not even matter if a party's title to the property is questionable. ot when both parties intruded ints public land and their applications to own the land have yet to be approved by the proper government agency. Regardless of the actwal condition of the tile to the property, the party in peaceable qulet possession shall not be thrown out dy a strong hand, violence, or terror. Neither is the unlawful withholding of oroperty allowed. Courts will always uphold respect for prior possession, 18 |-ABRC2016 Pointers in Remedial Law (combined with pointers 2015}seeragate/EVSA/erysical possession. (Munoz v. Yabut, et al, G.R. No. 142676; Munoz v. Sps. Chan, et al, GR.No, 146718, june 16, 2011, Leonardo-de Castro, J). Possession by tolerance; rental to be reckoned from withdrawal of tolerance. ‘As a rule, i there is possession of a property by tolerance, no rentals are pald. Infact, no contract exists between the parties. Bue ifthe tolerance is withdrawn, is the possessor lable to pay rentals from the time possession started, ov ace the ‘began to occupy the same, but ftom the time of the demand to vacate, Possession de facto cannot be affected by pendency of action involving ownership. Fossession defacto cannot be affected by the pendency ofthe annulment case where the ownership of the property is Pring contested, (Soco v. CA, 131 Phil. 753 (1996)). tis a well settled Furisprudence that sults Involving ownership nay vot be successfully pleaded in abatement ofthe enforcement of the final decision in an electment sult Ifthe rule were stherwice electment cases could easly be frustrated through the simple expedient of filing an action contesting the ownership over the property subject of the controversy. This would render nugatory the underlying philosophy of the summnaty remedy of Glectment which isto prevent criminal disorder and breaches of the peace and to discourage those who, believing themeetvec Enuitled to the possession of the property, resort to force rather than to some appropriate action in court te-ascere there claims. (camonte v. Century Savings Bank, GR. No. 176413, Novernber 25, 2009, 603 SCRA 476), Kinlawful detainer is within the MTC’s exclusive jurisdiction; boundary dispute is within the jurisdiction of the RTC. ‘An ejectment case within the original and. exclusive jurisdiction of the MTC, decisive are the allegations of the amplaint. But if the allegations do not make out a case for unlawful detainer, but an action reinvindicatoria, the case should be dismissed without prejudice to the filing of a non-summary action Ice accion reivindicatoria. A boundary dispute muse be Tesolved in the context of accion reivindicatoria, not an ejectment case. The boundary dispute is not about possession, but Garoachment, that is, whether the property claimed by the defendant formed part of the plaintf's property, A boundary disputs cannot be setiléd summarily under Rule 70 of the Rules of Court the proceedings under which are limited to unlawfi detainer and forcible entry. n unlawful detainer, the defendant unlawfully withholds the possession of the premises upon the expiration or termination of his right to hold such possession under any contract, express or implied. The defendants Possession was lawful at the beginning, becoming unlawful only because of the expiration or termination of his right of possession. In forcible entry, the possession of the defendant is ilegal from the very beginning, and the issue centers on which between the plaintiff and the defendant had the prior possession de facto. (Manalang v. Bacani, GR. No, 156995, January 12, 2018) Contempt With regard to Erlinda's authorship of the On the Edge of Heaven, she is found guilty of indirect contempt. Indirect contempt is a deliberate act to bring the court or judge into disrepute. Her statements pose a different threat to the Courts Fepute. Statements such as “Was justice sold?” and "How can the highest court of our land be a party to the break up of my family and, disregarding the Family Code", when taken together went beyond the permissible bounds of fair criticism. While most of her statements were in the form of questions instead of categorical assertions, the effect is still the same; they constitute a stinging afiront to the honor and dignity of the Court and tend to undermine the confidence of the public in the Integrity of the highest tribunal of the land. Litigants, no matter how aggrieved or dissatisfied they may be of court’s decision, do not have the unbridled freedom in expressing their frustration or grievance in any manner they want. (ERLINDA | BILDNER, etal. v. BRLINDA K. ILUSORIO, etal, G.R. No. 157384, June 5, 2009, VELASCO, JR. 1) SPECIAL PROCEEDINGS The mades of settlement of the estate of a deceased person. ‘They are: 1. Betrajudilal setement (Rule 74, Se. 1) where the heirs may, without intervention of the court, settle the estate subject fo the conditions that: a, Heleft nowill; b. Heleftno debts; 6 The heirs are all of age or even if there are minors, there may be appointment of a guardian, ‘The document has to be registered with the ROD to bind third persons. 2. Summary settlement of estates of small value. ‘There is a judicial intervention; the estate daes not exceed 10,000.00 3. Judicial settlement through letters of administration or lexters testamentary. (Rules 73; 75-90, Rules of Court), {In the second, a petition for settlement of the estate is (led. In the third, a petition for the probate of the'will of the decedent is filed since the probate is mandatory and that a will shall not pass any right until it shall have been admitted to probate. 4. Self-adjudication of the estate by a sole heir. He merely executes an affidavit and registers with the ROD. (See: Rebusquillo v. Gualvez) Watere estate of a deceased person settled. The ental seed ath Cour where he deceased wan eldhgalie me Ms eh ihe was a een the Philippines. If he was a resident ot another country, it should be setsed in the court of any place where he had an estate. ‘The court first taking cognizance of the settiement shall exercise it to the exclusion of all other courts. However, the ploce of Settlement is not a question of jurisdiction but question of venue. (Ja0 v, CA; San Luis v, San Luis; Niteler v. Niteher}. 19 {ABRC2016.Pointers in Remedial Law (combined -ith pointers 2015)seqregate/EVSAerysRemedies of an aggrieved party after extrajudicial settlement of estate. ‘An aggrieved party may avail ofthe following remedies: He may fle an action for reconveyance within a period of 10 years from the issuance of the title as it is based on constructive trust (Art. 1144, NCC: Marquez v. CA, 300 SCRA 653 [1998]). However, if the plaintiff is in possession of the Property, said action, if based on fraud, is imprescriptible as long as the property/land has not been transferred to a buyer in ‘800d faith and for value. (Heirs of Saludares v. CA, 420 SCRA 54), Will of a foreigner executed abroad can be prabated in the Phils.; no need for prior probate abroad. Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in tite countries of their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his, country. Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may take cognizance of the settlement of such estate. Sections 1 ai 2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, wiether the saine be in his possession or not, or is lost or destruyed. (In Re: Palaganas v. Palaganas, GR. No. 169144, january 26, 2011) Extent of the power of the probate court. 2 ‘The authority of the probate court is limited to the ascertainment of the extrinsic validity of the will, the soundness of mind of the testator, whether the will was executed freely. It cannot determine the intrinsic validity of the will except if preterition is apparent because it would be useless to declare the will extrinsically valid and yet, intrinsically void as there Would be waste of time of the parties and the court. It cannot likewise determine the validity and nature of contracts as the ‘same shall be decided in an appropriate proceeding before a court of general jurisdiction. The reason for the above is because a probate court has limited jurisdiction. (Nuguid v. Nuguid, 17 SCRA 449). However, if the parties agree, the court may determine the ownership of properties. (See: Vizconde v, CA) Even if a will has been admitted to probate abroad, there is need to submit it to probate in the Phils, because the judgment is not a law in the Philippines. It has to be proven as a fact according to the rules of evidence. The anciliaty administrator of the estate has the duty to introduce in evidence the law of the State of the decedent. (Ancheta v. Guersey. Dalaygon, G.R. No: 139866, june 8, 2006). When the will is allowed it shall have the same effect as if originally proved and allowed in the Philippines. (Rule 77, Sec. 3). Declaration of heirship must be in the intestate or testute proceedings; exception. As a rule the declaration of heirship must be made in a special proceeding, not in an independent civil action. However, recourse to administration proceedings to determine who the heirs are {s sanctioned only if there is a good an compelling reason for such recourse. (Pereira v. Court of Appeals, GR No. 81147, June 20, 1989, 174 SCRA 154: Intestate Estate of Mercado v Magtibay, 96 Phil. 383 (1953)). Hence, the Court had allowed exceptions to the rule requiring administration proceedings as when the parties in the civil case already presented their evidence regarding the issue of heirship, and the RTC had consequently rendered judgment upon the issues it defined during the pre-trial. (Helrs of Magdateno Ypon v. Gaudioso Ponteras Ricaforte, 6.8. No. 198680, july 8, 2013, 700 SCRA 778; Republic v. Mangotara, G. R. No. 170375, July 7, 2010, 624 SCRA 360; Heirs of Teofilo Gabatan v, Court of Appeats, G.R. No. 150206, March 13, 2005, 581 SCRA 70, 80-81; Fidel v. Court of Appeals, GR, No. 168263, July 21, 2008, $59 SCRA 186, 194; Rebusquillo v. Sps. Gualvez, etal, C.R No. 204023, june 4, 2014). Order of preference in the appointment of administrator of an estate, In the appointment of administrator the order of preference is" The surviving spouse or next of kin; Person requested by surviving spouse or next of kin; Principal creditors; Other person selected by the court. ‘The best interest of the estate shall always be considered in the appointment of administrator. In ease of conilict between the surviving spouse and the next of kin, the court shall apply the greater interest rule such that things being equ!, ike when the two are competent, willing and can post a bond, the one with greater interest shall be appointed. (Santns v. Angeses), Appointment of special administrator; matter of discretion. ‘The appointment of a special administrator lies within the discretion of the court. The statutory provisions as to the prior or preferred right of certain persons to the appointment of adininistrator under Section 1, Rule 81, and the statutory provisions as to causes for removal of an executor or administrator under Section 2, Rule 83, do not apply to the selection or removal of special administrator. As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or court hus discretion in the selection of uve person te be appointed. While the trial court has the discretion to appoint anyone as a special administrator of the estate, such discretion must be exercised with reason, guided by the directives of equity, justice and legal principles. it may, therefore, not be remiss to reiterate that the role of a special administrator is to preserve the estate until a regular administrator is appointed. Given this duty on the part of the special administrator, it would, therefore, be prudent and reasonable to appoint someone interested in preserving the estate for its eventual distribution to the heirs. (DIOSDADO S. MANUNGAS v. MARGARITA AVILA LORETO, et al., GR. No. 193164, August 22,2011, Velasco, Ir.) During the pendency of an intestate proceeding, the will of the decedent was produced. ‘The will must be submitted to probate but the intestate proceeding shall not be dismissed. The two cases shall he ‘consolidated. The rule is based on the principte that the probate of a will is mandatory and that it will not pass any right until the will shall have been admitted ty probate. Furthermore, Uiere is preference of testacy over intestacy especialty so that the will ofthe decedent is his voice even after his death, 20 |AGRC2016.Pointers in Remedial Law (combined with pointers 2015jegregate/EVSA/erysStatute of Non-Claims; The claims against the estate. The claims against the estate are all money claims consisting o a. Claims for money arising from contract, express or implied; b. Funeral expenses; © Expenses forthe last sickness of the decedent; ._ judgment based on money. (Evangelista v, Proveda, 38 SCRA 276). Only money claims may be filed. Claims for darnage and recovery of properties must be filed agaist the executor or administrator. (Rule 87, Sec. 1; Hllado v. CA, G.R No, 164108, May 8, 2009). This is so because they are claims that survive the death of the deceased. Remedies of an heir entitled to a share but not given, He can demand his share through a proper motion in the same testate or intestate proceedings. Or, he may file a motion to reopen if it had been closed. He should not file an independent action which could be tried by another court which Padmangay 8° * Aecision of the probate court that lias already become final and executory. (Guilas v. Judge of CFI af ’ampanga Asa rule, no execution shall issue in a probate proceedings; the rule is not absolute, AAs a rule, the probate court does not issue a writ of execution because allclalms shall be paid as ordered by the court 1m the process of liquidation of the estate where the executor or administrator does in the performance of his duties. The ule 4s nov however absolute. The probate court may only issue execution (a) to satisfy debts of the estate out of the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of Partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 3, Rule 142) and (d) where the executor or administrator has possession of share to be delivered and refuses to transfer the Possession to persons entitled. (Sec. 1, Rule 90, Heirs of the Late Fran v, Salts, GR. No. 53546, june 25, 1992, 210 SCRA 303), Remedies of creditor if debtor dies. ‘The bank may exercise any ofthe following options: 4. It may file a claim against the estate; b. Itmay foreclose the mortgage judicially; ©. Itmay extrajudicialy foreclose the mortgage, but it has no right to ask for deficiency from the estate. ‘The remedies are not cumulative. They are not alternative. The exercise of one excludes the other remedies. (Heits of the Late Maglasang v. Manila Banking Corp., G.R. No. 171206, September 23, 2013). RULE 76 - ALLOWANCE OR DISALLOWANCE OF WILL. The probate court has jurisdiction to determine the issue of ownership. If on action was instituted by heirs against their brother, who is also an helr, and their mother, who is tne administrator of the estate the probate court can determine the issue of ownership. In Coca v. Borromeo (171 Phil. 246 {1978}), the Court allowed the probate court to provisionally pass upon the issue of title, precisely because the only interested barties are all heirs to the estate, subject of the proceeding. While itis true that a probate court's determination of ownership over properties which may form part of the estate is nct final or ultimate in nature, this rule is applicable only as between the representatives of the estate and strangers thereto. In Bernardo v. Court of Appeals (171 Phil. 385 [1963)), the Supreme Court declared that the determination of whether property is conjugal or paraphernal for purposes of inclusion in the inventory of the estate rests with the probate court. (Romero, etal. v.CA, etal, (G.R. No, 188921, April 18, 2012). RULE 86 ~ CLAIMS AGAINST THY ESTATE Qvasi-contracts are included in claims that should be filed wader Rule 86, Sec. 5. ‘Acaim for necessary expenses by a possessor of a parcel of land Isa kind of quast-contract, hence, should be tiled inthe estate proceedings. ‘claim for necessary expenses spent as previous possessor of the land isa kind of quasi-contract. Citing Levng Ben v O'Brien, it was explained that the term “implied contracts,” as used in our remedial law, originated from the common law where obligations derived from quasi-contracts and from law are both considered as implied contracts. Ths, tae term: quasi- Contract is included in the concept “implied contracts” as used in the Rules of Court. Accordingly, labiites of the deceased arising from quasi-contracts should be filed as claims in the settlement of his estate; as provided In Section 5, Rule 86 of the Rules of Court (Metropolitan Bank & Trust Co v. Absolute Management Corp, GR, No, 17049, January 9, 2013, Brion, |). RULE 102 - HABEAS CORPUS, Writ of habeas corpus; when available, Under Section 1, Rule 162 of the Rules of Court, the writ of habeas corpus is available, not only in cases of illegal confinement or detention by which any person is deprived of his liberty, but also in cases involving the right(ul custody over ‘4 minor. (Bagtas v: Santos, G.R. No. 166682, November 27, 2009, 606 SCRA 101, 111). The general rule is that parents should have custody over the minor children. But the State has the right to intervene where the parents, vather than care for such children, treat them cruelly and abusively, impairing their growth and well-being and leaving them emotional scars that they carry throughout their lives unless they are liberated from such parents an-l properly counseled. (In the Matter of the Petition ‘or Habeas Corpus of Minor Shang Ko Vingson Yu, Sherly Vingson v. Jovy Cabcaban, UDK 14817, january 13, 2014), 24 | ABRC2016.Pointers in Remedial Law (combined with pointers 2015)sezrogate/EVSA/erys‘Nacure of a petition for a writ of habeas corpus. Petition for habeas corpus; appeal period. The 48-hour period of appeal is the more appropriate remedy. The 48-hour appeal period demonstrates the adequacy of such remedy in that no necessary time will be wasted before the decision will be re-evaluated A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Revised Rules of Court. The objective of the wrt is to determine whether the confinement or detention is vad or awful. if iti the arrearage fssued. What i to be inquired into is the legality of person's detention as of, atthe earliest. the fling of the application for the writ of habeas corpus, for even if the detention Is at ft Inception illegal, t may, by reason ef some ancenvaring events, such as the Instances mentioned in Section 4 of Rule 102, be no longer illegal atthe tite ofthe filing of {he application. (OSG v. De Castro, $29 SCRA 157 [2007]; Go, Sr. v. Ramos, GR. No. 67569; Go v. Ramos, GR. No. 167570; tox Feenandez, et.al. v.Go, etal, GR. No. 171946, September 4, 2009) Writ of Habeas Corpus at NOIR. [The National Capital Judicial Region consists ofthe cities of Manila, Quezon, Pasay. Caloocan and Mandaluyong, and {he municipalities of Navotas, Malabon, San Juan, Makati, Pasi, Pateros, Taguig, Marikina, Pavafaque, Las Pinas, Muntinlupa, gad Walencucla In view thereof, itis indubitable thatthe fling of a petition forthe issuance of a wrt of habeas corpus belore ¢ family court in any of the cities enumerated is proper as long asthe writ is sought tobe enforced within the National Capital Judicial Region, as here. In the case at har, respondent filed the petition before the family court of Caloocan City. Since Caloocan City and Quezon City both belong tothe same judicial region, the writ issued by the RTC-Caloocan can still be implemented in Queson Gly. Whether petitioner resides in the former or the latter is immaterial in view of the above rule. {Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (AM. No. 03-04-04-SC) MA HAZELINA. a JO UANMILITANTE IN BEHALF OF THE MINOR CRISELDA M. CADA v. RAQUEL M. CADA-DEAPERA, GR. No. 210636, July 26, 2014, Velasco, }) Tender age presumption; not conctusive. The Convention on the Rights ofthe Child provides that in all actions concerning children, whether undertaken by Public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests o¢ {he child shall be a primary consideration. The Child and Youth Welfare Code, in the same way. unequivocally provides that in all questions regarding the care and custody, among others, ofthe child, his/her welfare shal be the paramount consideration The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling Eujence ofthe mother's unfitness. The mother is declared unsuitable to have custody of her children in one or more of the fellewing Instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment Ofte child, insanity, oF afMiction witha communicable disease. Here, the mother was not shown to be unsultable or grossly incapable of caring for her minor child All told, no compeiting reason has been adduced to wrench the child from the mother's cus.ody. Thus” the sole custody over Simone Noelle Hirsch was awarded to the mother, Agnes Gamboa-Hirsch. (AGNES GAMBOA-HIRSCH v. HON. COURT OF APPEALS, et ai. G.R. No, 174485 July 11, 2007 VELASCO, JR) RULE 67 ~ EXPROPRIATION Motion to dismiss may not be filed in an expropriation case. ‘The rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that any {lection or defense to te taking of the property of a defendant must be set forth in an answer. (Masikip v. City of Pasig, GR No. 136349, January 23, 2006) — - — When expropriating authority may be granted the writ of possession in expropriation. The deposit of the amount equivalent fo the assessed value of the property is not sufficient to grant writ of Possession. Rep. Act No. 8974 requires that the government mnake a direct payment to the property owner before the writ may ‘ssue. Such payment is based on the zonal valuation of the BIR, or if no such valuation is available and in cases of utmost urgency, the proffered value of the property to be seized. It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme of “immediate payment” in cases involving national government infrastructure projects, (Republic v. Gingoyon, G.R. No, 166249, December 19, 2005). RULE 108 - CANCELLATION OR CORRECTION OF ENTRIES Petition for change of name; adversarial proceedings; wha should be irapleaded, ‘Where a petition for cancellation or correction of an entry in the civil register involves substantial and contcoversial alterations including those on citizenship, legitimacy, paternity or fliation, or legitimacy of marriage, strict corapliance with {he requirements of Rule 108 of the Rules of Court is mandated. Section 3 of Rule 108 requires that the civil registrar and al parties who would naturally and legally be affected by the grant of a petition for correction or cancellation of entries must be impleaded. Non-impleading of a party who may have been inadvertently left out may be notified through publication. (Rep. V. Julian Edward Emerson Coseteng-Magpayo, G.R. No. 109476, February 2, 2011) Correction of entries involving first names should be filed with the Local Civil Registrar. The first name of petitioner and his mother as appearing in his birth certificate can he corrected by the city civit Fagictrar under RA. No, 9048. Under Section 1 of R.A. No. 9048, clerical or typographical errors on entries in a civil register can be corrected and changes of first name can be done by the concerned city civil registrar without need of a judicial order. Aforesaid Section 1,,as amended by R.A, No. 10172 provides that no entry in a civil register shall be changed or corrected without > judicial order, excent for clerical or typograyhical errurs and change of first name or nickname, the day and month in the date of birth or sex of a person where it is patently clear that there was a clerical or typographical error or mistake in the entry, which can be corrected or changed by the concerned cityor municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. 2Z | 4BRC2016.Pointers in Remedial Law (combined with pointers 2015)segregate/EVSA/erys‘Meorrection is clerical itis summary in nature; ifit affects civil status, citizenship, i is substantial Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil registry The proceedings may either be summary or adversary. If the correction is clerical, then the procedure to be adopted 1s summary. Ifthe rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the brocedure to be adopted is adversary. Since the promulgation of Republic x. Valencia, 225 Phil. 408 [1986], the Coutt has eepeatedly ruled that “even substantial errors ina civil registry may be corrected through a petition filed under Rule 108. with the true facts established and the parties aggrieved by the error availing themselves of the appropriate adversarial ” (Barco v. Court of Appeals. 465 Phil. 39, 58 {2004)). An appropriate adversary sult or proceeding is one where the tial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence has baen thoroughly weighed and considered, (Rep. v. Olaybar, GR. No. 189538, February 9, 20'4, Peralta |} CRIMINAL PROCEDURE JURISDICTION AND VENUE Elements of jurisdiction in criminal cases. ‘The elements of jurisdiction in criminal case are the following: 1. Penalty attached; The jurisdiction of a court in criminal cases is determained by the penalty imposable, and not by the penalty ultimately imposed. (People v. Lagon, G.R. No. 45815, May 18, 1990). If the penalty does not exceed 6 years, it Is within the Jurisdiction of the MTC. If more than 6 years, it is within the jurisdiction of the RTC. The additional penalty for habitual delinquency is not considered in determining which court shall have jurisdiction over a criminal case because such delinquency is not a crime. (Hl Publo de Filipinas v. San Juan, 69 Phil. 3347 [1440]; B:29), 2. Nature of the offense charged; Crimes committed by public officers fall within the jurisdiction of the Sandiganbayan, if the grade 1s 27 & above. Below 27, the MTC or RTC has jurisdiction, 3. Territorial jurisdiction over place of erime commission. {n criminal cases, venue is a question of jurisdiction, However, SC may order the transfer of the venue of trial of criminal cases in order to attain the aims of justice, ‘The absence of any of these elements may he challenged by an accused at any stage of the proceedings in the court below or on appeal. Falling to comply with anyone of them, the resulting judgment of conviction is null and vaid. Venue, a question of jurisdiction in criminal cases; exception. Under the law, venue is a question of jurisdiction in criminal cases, hence, as a rule, the complaint should be filed in Manila. Such rule is founded on public policy so as not to urduly prejudice the parties. But under RA 8042, the law provides that a victim of illegal recruitment has the option to file the case in his place of residence or in the place where the crime was committed. This is an exception to the rule that venue is a question of jurisdiction in criminal cases. The law is invended to Protect the interest of victims of ilegal recruitment. (Hon. Patricia Sto, Tomas v. lac, G.R. No, 152642, November 12, 2012) When a private individual within the jurisdiction of the SB. ‘The SB has exclusive jurisdiction over crimninal actions involving a person notwithstanding that he 1s private individual considering that his criminal prosecution is intimately related to the ill-gotten wealth of the Marcoses, their imunediate family, subordinates and close associates. (Disini v. SB, G.R. Nos. 174764-65, September 11, 2013). Jurisdiction in Ubet cases. Neither the MTC nor SB have jurisdiction over the libel suit because under the law, libel eases are within the jurisdiction of the RTC (Art. 360, KPC). The nature of the offense, the penalty provided for by law and the grade to which A belongs do not determine the court that has jurisdiction. This is especially so that it Is the law that confers jurisdiction over a ‘subject matter. Since the law confers jurisdiction upon the RTC. The MTC and SB have no jurisdiction over the subject matter (Feople v. City Court of QC; People v. Benipavo, G.R. No. 154474; Photokina Marketing Corp. v. Benipayo, G.R. No. 154473, April 24, 2009), ‘How jurisdiction over the person of the accused acquired. Jurisdiction over the person of the accused in acquired either by his/her arrest or voluntary appearance in court. The voluntary appearance of the accused is accomplished either by his: 1):pleading to the merits (such as by fillng a motion to uash or otner pleadings requiring the exercise of the courts Jurisdiction, 2) appearing for arraignment, entering trial), or 3} by filing bail. On the matter of bail, since the same is intended to obtain the provisional liserty of the accuse, as a cule, the sarsc cannot be posted before custody of the accused has been acquired by the judicial authorities, either by his arrest or voluntary surrender. This is so because the accused cannot repudiate the power of the court and at the same time invoke it Meaning of the phrase “in relation to their Office” involving erimes committed by public officials and employees. tmeans that the offense need not be connected with official duties. It is enough that itis in relation to office. A public official and employee commits a crime “in relation to their office” ifthe offense was intimately connected with the office of the offender and perpetuated while he is in the performance of his official funetion, Mere allegation in the {formation that the offense was committed by the accused public officer in relation to his office is not sufficient. What is controlhng ' the specie factual allegations in the information that would indicate tke close intimacy between the discharge of the accused's official duties and the commission of the offense charged in order to quall’y the exfme as having heen comtntted it relation to public offce RULE 110 PROSECUTION OF OFFENSES Allegation of age, relationship bewween the offender «id the offended in rape cases. 23 | ABRC2016.Pomters in Remedial Law (combined with pointers 2015)segsegateyEVSA/erys‘The accused cannot be convicted of qualified rape ifthe information does not allege the age, and the relationship of the victim and the alleged rapist. Rape is qualified and punished with death when committed by the victim's parent, ascendant, step-parent, guardian, or relative by consanguinity or affinity within the third civil degree, or by the common-law ‘spouse of the victim's parent. However, an accused cannot be found guilty of qualified rape unless the information alleges the possess the firearm, as possession itself is not prohibited by law, in the instant case, the prosecution was able to prove that petitioner had no license or permit to possess the seized contraband as shawn by a certification that he had no license. The c tents, authenticity, and import of the above certification were admitted during the hearing by petitioner, thereby disper ng with tKe testimony of the issuing officer, SPO1 Regis. Under Section 4 of Rule 129 of the Revised Rules on tividence, "[A]x{ admission, verbal or written, made by a party ia the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was nade." Cleary, petitioner cannot take a contrary or diferent position considering that he has made an express admission ofthe Certification, which does not require proof and cannot be contradicted because there is no previous evidence ‘hat the admissfon was made through palpable mistake. After admitting it, he cannot now assail that said certification has not been properly ilentified. Besides, he has had several occasions to present proof that he was licensed to possess firearms. Yet stage he has not. (CAYETANO CAPANGPANGAN i: PEOPLE OF THE PHILIPPINES, GR. No, 150251, Nov: stp.) 8) e; the reason for its nadmissibily. @ Deal Man's Statute Rule, if one party to the alleged transaction is preiuded from testilying by death insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplalne!atcount of the transaction” (Tan t. Court of Appeals, Git No. 125861, September 9, 1996, 295 SCRA 247 258). Thus the lleged admission of the deceased Pedro that he entered ino a sharing of leaseha rights wth the pettoners cannot be used Bis evidence agains the respondent as the later would be unable to contract ar dsprove te samme SectioH 28 Disquaifaton by reason of deth or insanity of adverse party. Parties or assignrs Of pallet toa case or persons in whose behalf a case Is prosecuted, against an executor or administrator or other representative ofa deceased person, or agaist a person of unsound mind, cannot testy as to any matter of fact occurring before the death of such deceased persoh oF before such person became of unsound mind. Garda v. Vda, De Caparas. GR No. 180843, Api 17,2073, Det Castillo, oo Mental retardate can testify. White ft is true that the credibility of ene whe is a mental retardate may be difficult to determine, still, can be ascertained by deducing from the manner she testifies in court as to the surrounding facts of the crime committed. For as long, as her testimony is straightforward, cundid and unflawed by inconsistercies or contradictions in its material points, and her demeanor is consistent with one who has been a victim of rape, bolsters her credibility with the verity born out of human nature and experience, thus, must be given full faith aad credit. Moreover, mental retardation per se does not aftect credibility. A mentally retarded may’ be a credible witness. T! acceptance of her testimony depends on the quality of her-perceptions and the manner she can make them known to the court. (People v Tamano, G.R. No. 188855, December 8, 2010). Witness ts a child cannot be sole reason for disqualification. As the rules show, anyone who is sensible and aware of a relevant event or incident, and can communicate such awareness, experienc, or observation to others can be witness. Age, religion, etniity. gender, eduction] ataiument 1 Social sats arenot necessary co qualify a person o De a witnessotong ashe does net possess any ofthe Jaquaiiesis 2 listed the rules/The generosity with which the Ruies of Court allows people to testify is apparent, for veligious beliefs, inceres: inthe outcome Bf case and conviction of rime unless otherwise provided by law are no rounds for aiqualieatons "That the ovtnes fs» cild cannot be the sole reason for isqualffeaton. The dismisivcrass with which the cestimonies of cid witnesses were tested in the past has long been erased. Under te Pale on Examination of Cl Witness (AM. No. 004-07-SC 15 December 2000), every child is now presumed qualified to be a witness. To rebut this presumption, ‘he barden of stantial doubt exist regarding the ability ofthe child to perceive, remember coromunicate distinguish rth trom falsehood or appreciate the dy toll the truth in court wil he court motu proprio or on motion party. cone" ‘competency examination of a child. (People v. Esugon, G.R. No, 195244, June 22, 2015, Bersamin, |) Extrajudicial confession before a “Bantay Bayan” is not admissible in evidence; reason. ‘The prosecution's contention that the confession before the bantay bayan is admissible since they are not potice officers is not quite correct, because there was a violation of his constitutional rights under custodial mvestigation or the: Miranda warnings. In People v. Maingan. GR. No, 170470, September 26, 2006, 503 SCRA 294, the canfession before the barangay chairman together with object seized were inadmissible in evidence. n People ofthe Philippines v. Buendia, 432 Phil 4471 (2002), it was held that “bantay bayan’ is “a group of male residents living In the arva onganized for the purpose of ‘keeping peace ip their community, which s an accreted aiary ofthe x x PNP Barangay-based volunteer organizations n the nature of watch groups “banlay bayan,” are recogntzed by the local government unit to perform functions relating to the preservation of peace and order at the barangay level. Thus. the specific Scope of duties and responsibilities delegated to a “hantay bayan," particularly on the authority to conduct a custodial iivestigation, aby inquiry that is made by them nas the color of a stale-related function and objective insofar as the entitlement of asuspectto his constitutional rights provided for under Art. Il, Sec, 12 ofthe Consticution, otherwise known ss she Miranda Rights. (People v. Lauge. GR No. 196226, March 15, 2010), Admissibility of dying declaration; ceuson, Dying declaration is admissible as an exception to the hearsay rule... While the victim was net able to testify in court. his statement is considered admissible under Section 37, Kule 130 of the Rules of Court, which provides that the declarauion of a dying person, made under the consciousness of an Impending, death, may be received in any case wherein his death is < subject 0" Inquity, as evidence ofthe cause and surrounding circumstances of such death 3 [AGRC2016.Peinters in Rumedia! Law (cornisined with punters 2018}eejreRate/EVSA/erysmn applying this exception to the hearsay rule, it must be shown that a dying declaration was made under a realization by the decedentithat his demise or at teast, its imminence ~ not so much the rapid eventuation of death ~is at hand. This may be proven by the statement of the deceased himself or it may be inferred from the nature and extent of the decedent's wounds, or other relevant circumstances.” (People v. Santos, 337 Phil. 334 (1997)). A dying declaration is entitled to the highest credence, for no person who knows of his impending death would make a careless or falge atrusation. When a person is at the point of death, every motive of falsehood is silenced and the mind is Powerful consideration to speak the truth. (People v. Lamasan, 451 Phil. 308 (2003)). It is hard to fathom that the] victim, very weak as he was and with his body already manifesting an impending demise, would summon every remalt igth he had just to lie about his true assailants, whom he obviously would want to ring to justice. {People v Ta et als GR. No, 168169, February 24, 2010; People v. Palanas, C.R. No. 214453, june 17, 2015, Perlas- mabe, I), Res gestae. i) ifafver the rape and killing of a young girl, the accused admitted to the barangay officials and tanods that he was the ‘one who committed the crime such admission is admissible as an exception to the hearsay rule, Accused's statements infront of the barangay) are admissible for being part of the res gestae. Under the Revised Rules on Evidence (Rule 130, Sec. 4), 4 declaration i8 deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal ac, the res gestae, is a startling occurrence; (2) the statements were made before the declarant ta Hine fo contrive or devise; and (3) the statements must concern the occurrence in question and is immediately attending circumstances. All these requisites are present in this case. He had just been through a startling and gruesome occutretice, victim's death. His admission was made while he was stil under the influence of said startling ‘occurrence and before he had an opportunity to concoct or contrive a story. In addition, he was still under the influence ef alcohol at that te, having engaged in a drinking spree. His confession concerned the rape and killing of the victim. is Spontaneous statements made to private persons, not agents of the State or law enforcers, are not covered by the constitutional s ls on custodial investigation and, as res gestae, admissible in evidence against him. (People v. Tirso Sace, GR.NO.1 in Apri 5, 2010). independently Under such statement slevant evidence; exception to the hearsay rule. doctrine of independently relevant statements, the hearsay rule does not apply where only the fact that were made is relevant, and the truth or falsity thereof is immaterial. (People v. Malibiran, GR. No. 178301, ‘August 24, 2004, 586 SCRA 693). In the case at bar, the testimony ofthe police office: as regards the conversations between the informant apd accused-appellant is admissible insofar as it established that said information led the police officers to Prepare for and proceed with the buy-bust operation. The conversation between the informant and the accused-appellant was Not necessary th prove the attempted sale of shabu, as said attempt to sell was already clear from accused-appellant’s actuations which were all within the personal knowledge of police officer and testified to by him, (People v. Coronado, GR. No 186141, April 14,2012). jdmissible in evidence. ‘The text messages are admissible applying the Rules on Electronic Evidence to criminal actions. (AM. No.01-7-01-SC, Re: Expansion of the Coverage ofthe Rules on Electronic Evidence, September 24, 2002). Text messages are ‘0 be proved by a person who was a party to the same oF has personal knowledge of tiem, Here, PO3 Carn, posing as the exchanged text messages with the other accused in order to identify and entrap them. As the recipient of Gent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such messayee to testify on them. (People v. Enojas, et al, GR. No. 204894, March 10,2014). Offer of Evidence bf Court provides that the court shall consider no evidence which has not been formally offered. A formal because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent if presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibiity, Moreover, it facilitates review as the appellate court will not be required to review documents nat ized by the trial court. Strict adherence to the said rule is not a trivial matter. The formal offer of one’s ling to submit it within a considerable period of time. (HEIRS OF PEDRO PASAG et al. v. SPOUSES LORENZO and FLORENTINA PAROCHA, et al, G.R. No, 155483, 27 April 2007;). Velasco, Jr) When objection to a document made, Objectipn to the documentary evidence must be made at the time it is formally offered, not earlier. The identification ‘fthe document before it is marked as an exhibit does not constitute the formal offer of the document as evidence for the party resenting it. Ob to the identification and marking of the document is not equivalent to objection ta the document when {tis formally offered in evidence. What really matters is the objection to the document at the time it is formally offered as an exhibit, Ifno timely objection was ever made, the evidence not objected to became property of the case, and all the parties to the case are considered amenable to any favourable or unfavourable effects resulting trom the evidence. (Interpacific Transit. Inc. v, Aviles, 186 SCRA 385, June 6, 1990; Sps. Decateng v. Bishop of the Missionary District of the Phil. Islands of Protestant Episcopal Church in the USA, et al. G.R. No. 171209, June 27, 2012, Leonardo-de Castro, j). ‘Proof of private document. Documnts acknowledged helore a notary public except las wills and testament, are publi documents, (Se. 5, Rule 132). Since the subject REM was not properly notarized, its public character does not hold. It is subject to the requirement of roo for privath decuments under Section 20, Rule 152, whieh provides before eny private document offered as authenc received in evidhnr. sue executlon and autheatty must be proved either {@) Bayon who saw the document exceuted or weltan: or 34 | ABRC2016.Pbinters in Remedial Law (combined with pointers 2015)segregata/EVSAVcrys I(©) By evidence of the genuineness of the signature or hanawiting of the maker. Any other private document need only be identified as that which it is claimed to be. “When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause ofthe unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated” (Dycoco ¥. Grafilo, et al, G.R. NO. 184843, july 30, 2010). Doctrine of equipoise. ee Where the evidence on an issue of fact is in question or there is doubt on which side the evidence weighs, the doubt should be resolved Ih favor of the accused. i inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence ofthe accused and the other consistent with his guilt, then the evidence does not full the test ‘of moral certainty ahd will not justify a conviction. (People v. Lagmay, 365 Phil. 606, 633 [1999]; Amanquiton v, People, GR. No, 186080, August 14, 2009). Handwriting experts. Handwriting experts, white useful, are not indispensable in examining or comparing handwritings or signatures. ion 22 of Rule 132 of the Rules of Court). Section S0)of Rule 130 of the Rules of Court allows the reception of the opinion of a witness, like Judge Lavifta, for hich proper basis Is given, as evidence regarding a handwriting with which he has sufficient familiarity. (Progressive Trade Services Ent. V, Antonio, G.R. No, 179502, September 18, 2009). Requisite of judicial notice. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (8) it must be known to be within the limits ofthe jurisdiction ofthe court. The principal guide in determining what facts may be assumed to be judicially knawn is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. ‘est Evidence Rute, Before a party is allowed to adduce secondary evidence to prove the contents ofthe original, the offeror must prove the fellowing; (1) the existence or due execution of the original; (2) the lass and destruction of the original or the reason for ‘ts non-production jn court and (3) on the part ofthe offeror. the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof i as follows: existence, execution, oss, ani contents. In this case, the above requisites are present. Both the CA and the RTC gave credence to the testimony of Peregrine that the original contract in the possession of Monark has been lost and taat diligent efforts were exerted to find the same but to no avail. Such testimony has remained uncontroverted. Furthermore, MCMPs failure to present the copy of the contract tes fallur, not only justifies the presentation by Monark of secondary evidence in accordance with Section 6 of Rule 130 ofthe Rules of Court but it also gives rise to the disputable presumption adverse to MCMP tinder Section 3 (e) of Rule 1351 of thd Rules of Court that “evidence wilfully suppressed would be adverse if produced,” (MCMP CONSTRUCTION CORPORATION|y. MONARK EQUIPMENT CORPORATION, G.R. No. 201001, November 10, 2014, Velasce, fr, !) idence may be presented. F iY present secondary evidence of the contents of a writing not only when the original is lost or destroyed, ‘but also when itis in the custody or under the control of the adverse party. In either instance, however, certain explanations ‘must be given before a party can resort to secondary evidence, Four factual premises are readily deducible from the above exchanges. co wit: 2 the existence of the original documents which ESHRI had possession of; (2) a request was made on ESHRI to produce the documents; (3) ESHRI was afforded sufficient time to produce them; and (4) BSHRI was not inclined to produce them, Cleatly, the circumstances obtaining in this case fall under the exception under Sec. 3(b) of Rule 130. In other words, the conlditfans sine qua non for the presentation and reception of the photocopies of the original document zs secandary evidencd have been met. (EDSA SHANGKI-IAA HOTEI. AND RESOT v. BF CORPORATION, GR. No. 145842, 145073 lune 27, 2008 Velaseo. Jr. 1) ids the addition or contradiction of the terms of the instrument. ridence rule forbids any addition to or contradiction of the terms of a written instrument by testimony ot other es dence purporting to show that. “at or before” the execution of the parties’ written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. Notably, the claimed verbal agreement was prior to but “subsequent to” the written agreement. The validity of the written agreement is not the matter which is being put in issue here. What is questioned is the validity of the claim that a subsequent verbal agreement was agreed ie after the execution of the written agreement which substantially modified their earlier written agreement fv. Lunaria, et al, G.R. No. 17136, October 17, 2008). Exception to the general rule. This Hwever, is merely a general rule. Provided that a party puts in issue in its pleading any of the four (4) items ‘enumerated in the second paragraph of Rule 130, Section 9, “a party may present evidence to modify, explin or add to terms of the agreement.” Raising any of these items as an issue in a pieading such that it falls under the oxception is not limited to the party initiating an action. In Philippine Notional Railways v. Court of First Instance of Albay, the Court noted that if the defendant set up the affirmative defense thi: the contract mentioned in the complaint does not express the truc agreement of the parties, then par! «vidence is admissible to prove the true agreement of the parties.” Moreover, as with ai! possible objections to the admission of evideuce, a party's failure to dmely abject is deensed a waiver, and parol evidence may then be enterea}ned 35 | ABRC2016.Fointers in Remedial Law (combined with pointers 2015}segregate/EVSA/crysParol evidence must be relevant. ‘Apart from pleading these exceptions, itis equally imperative that the parol evidence sought to be introduced points to the conclusion proposed by the party presenting it. That is it must be relevant. tending to “induce belief in the existence” of the flaw, true intent, or subsequent extraneous terms averred by the party seeking to introduced parol evidence. 1n sum, two (2) things must be established for parol evidence to be admitted: first, that the existence of any of the four (4) exceptions has been put in issue in a party's pleading or has not been objected to by the adverse party; and second, that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party. Photocopy of document admitted. 4n Caran v. Court of Appeals, wherein the SC accepted in evidence a mere photocopy of the document since it was not ‘objected to despute non-presentation of the original. No objection was raised by counsel for petitioners in their written opposition /comment to private respondents offer of evidence regarding the fact that what ivas marked and submitted to the court was the photocopy. In Blas vs. sIngeles uctalfa, the Court held thus: The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived. Bystanders’ account of a rumble incident admissible as part of the res gestae. As a general rule, “fa] witness can testify only to the facts he knows of his personal knowledge; that is, which are derived from his own perception, x x x.” (RULES OF CIVIL PROCEDURE, Rule 130, Sec. 36). All other kinds of testimony are hearsay and are inadmissible as evidence. The Rules of Court, however, provide several exceptions:to the general rule, and one of which is when the evidence is part of res gestae. There is no doubt that a sudden attack on a group peacefully eating lunch on a school campus is a startling occurrence. Considering that the statements of the bystanders were made immediately after the startling occurrence, they are, {in fact, admissible as evidence given in res gestae. (People v. Feliciano, jr, etal, G.R. No. 196735, May 5, 2014, Leonen, }). Recantation of witness. ‘As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and ignorant ‘witness, usually through intimidation or for monetary consideration. Moreover, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable. An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. In-the present case, private complainant lost the Fight or absolute privilege to decide whether the rape charge should proceed, because the case had already reached and must therefore continue to be heard by the court a quo. (People of the Philippines v. Demetrio Salazar, G.R, No, 181900, October 20, 2010, Velasco, IR, J) Essence of physician-patlent privileged communication. ‘The physician-patient privileged communication rule essentially means that a physician who gets information while professionally attending a patient cannot in a civil case be examined without the patient's consent as to any facts which would blacken the latter’s reputation. This rule is intended to encourage the patient to open up to the physician, relate to him the history of his ailment, and give him access to his body. enabling the physician to make a correct diagnosis of that ailmenc and provide the appropriate cure. Any fear that a physician could be compelled In the future to come to court and narrate all that hrad transpired between him and the patient might prompt the latter to clam up, thus putting his own health at great risk. {Josiviene Lara Chan v, Johnny Chan, GR. No. 179786, July 24, 2013), Hospital records covered by physician-patient privilege. To allow the disclosure during discovery procedure of the hospital records—the results of tests that the physician ordered. the diagnosis of the patient's illness, and the advice or treatment he gave him— would be to allow access to evidence that is inadmissible without the patisnt’s consent. Physician memorializes all these information in the patient's records. Disclosing them would be the equivalent of compelling the physician to testify on privileged matters he gained. white dealing with the patient, without the latter’s prior consent. When is an offer of compromise admissible or not admissible against the offeror. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. f {in criminal cases, except those involving quast-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be recelved in evidence as an implied admission of guilt, An offer to pay or the payment of medical, hospital or other expenses otcasloned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (Sec. 27}. Effect ofa plea for forgiveness in a criminal case. : A plea for forgiveness may be considered as analogous to an attempt to compromise. In eriminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. No one would ask for forgiveness unless he had committed something wrong, for to forgive means to absolve, to partion, to cease, to feel resentment against on account of ‘wrong committed. (People vs. De Guzman, 77 SCAD 39, GR, No. 117217, December 2, 1996) Nature of an interview of the uccused with the media about the commission of @ crime and the guidelines on its ‘admission in evidence Interview by media men does not form part of custodial investigation, however, because of the inherent danger in the use of television as 2 mediin for admitting one's guilt, and the recurrunce of this phenomenon in several cases, itis prudent that trial courts are reminded that extreme caution must be taken in further adnuitting similar confessions. For in all probability, the police with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicia! confessions and place them beyond Uv: exclusionary rule by having an accused admit an offense on television. 36 | ABRC2016.Pointers in Remedial Law (combined with pointers 2015}segregate/EVSA/erys