B.M. No. 850 (Re: Rules on Mandatory Continuing Legal Education for Active Members of the Integrated Bar of the Philippines)

NOTICE

Sirs/Mesdames:

Please take notice that the Court en bane issued a Resolution dated FEBRUARY 17, 2015, which reads as follows:

"B.M. No. 850 (Re: Rules on Mandatory Continuing Legal Education for Active Members of the Integrated Bar of the Philippines). - Acting on the Letter dated January 13, 2015 of Hon. Bernardo P. Pardo, Chairperson, MCLE Governing Board, submitting for the Court's approval the MCLE Governing Board Resolution No. 007-2014, the Court Resolved to REQUIRE all members of the Integrated Bar of the Philippines to file a written entry of appearance indicating their MCLE exemption or compliance number for the current or immediately preceding compliance period and date of issuance thereof before appearing as counsel or engaging in oral argument in open court or before a quasi-judicial body. However, counsels who affixed their signatures in- their pleadings and indicated their MCLE exemption or compliance number in their pleadings need not file a separate entry of appearance. Henceforth, all counsels, including partners of law firms whose names appear in the said pleadings, shall also indicate their MCLE exemption or compliance number.

This resolution shall take effect on March 1, 2015 following its publication in a newspaper of general circulation." Brion, J., on leave. Jardeleza, J., on official leave. (adv36)

Very truly yours,

(sgd.)

ENRIQUETA E. VIDAL

Clerk of Court

Source

Book Review: Antonio Bautsista's Basic Evidence

Atty Antonio Bautista's Basic Evidence features a topical discussion of the rules on Evidence. It is mainly an academic discussion of the subject. The discussion generally go into the spirit of the rules. The book discusses the wisdom, the pros and cons of a particular rule.

U.S. caselaws and American authorities like Wigmore, Lilly and Kirkpatrick are extensively quoted to shed light on the various topics. And while our rules on Evidence are based on common law, some discussions may not apply in our jurisdiction on all fours.

The book is recommended if you want to know about the rationale of our rules on Evidence. But if you are studying for the bar, I won't recommend this book.

2008 Remedial Law Bar Exam Questions

I

Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of Manila against her sister Mary Rose, who is a resident of Singapore and is not found in the Philippines. Upon motion, the court ordered the publication of the summons for three weeks in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in Bulgar and brought a copy of the tabloid when she returned to Singapore. Linda showed the tabloid and the page containing the summons to Mary Rose, who said, "Yes I know, my kumare Anita scanned and e-mailed that page of Bulgar to me!"

Did the court acquire jurisdiction over Mary Rose? (4%)

II

Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000 as damages and P30,000 as attorney's fees as a result of the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe.

1. Does the RTC have jurisdiction over Ramon's counterclaims, and if so, does he have to pay docket fees therefor? (3%)

2. Suppose Ramon's counterclaim for the unpaid balance is P310,000, what will happen to his counterclaims if the court dismisses the complaint after holding a preliminary hearing on Ramon's affirmative defenses? (3%)

3. Under the same premise as paragraph (b) above, suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? (3%)

III

1. Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and Nueva Ecija, respectively. May her action prosper? (3%)

2. Assuming that the action was for foreclosure on the mortgage of the same parcels of land, what is the proper venue for the action? (3%)

IV

Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino pleading two causes of action. The first was a demand for the recovery of physical possession of a parcel of land situated in Pasay City with an assessed value of P40,000; the second was a claim for damages of P500,000 for Marcelino's unlawful retention of the property. Marcelino filed a motion to dismiss on the ground that the total amount involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? (4%)

V

Within the period for filing a responsive pleading, the defendant filed a motion for bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to find on the date set for hearing that the trial court had already denied the motion on the day of its filing, stating that the allegations of the complaint were sufficiently made.

1. Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? (3%)

2. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? (3%)

VI

After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted attachment. In the end, the trial court rendered a judgment in Porfirio's favor by ordering the plaintiff to pay damages because the plaintiff was not entitled to the attachment. Porfirio moved to charge the plaintiff's attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond had relieved the plaintiff's attachment bond from all liability for the damages. Rule on Porfirio's motion. (4%)

VII

1. The writ of execution was returned unsatisfied. The judgment obligee subsequently received information that a bank holds a substantial deposit belonging to the judgment obligor. If you are the counsel of the judgment obligee, what steps would you take to reach the deposit to satisfy the judgment? (3%)

2. If the bank denies holding the deposit in the name of the judgment obligor but your client's informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit? (3%)

VIII

Bembol was charged with rape. Bembol's father, Ramil, approached Artemon, the victim's father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

1. During trial, the prosecution presented Artemon to testify on Ramil's offer and thereby establish an implied admission of guilt. Is Ramil's offer to settle admissible in evidence? (3%)

2. During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembol's offer a judicial admission of his guilt? (3%)

IX

The search warrant authorized the seizure of "undetermined quantity of shabu." During the service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as evidence for the violation of Section 11 of the Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of the marijuana leaves under the "plain view" doctrine. There was no indication of whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule on the motion to suppress? (4%)

X

Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the warrants for their arrest. Learning of the issuance of the warrants, the three accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their motion, none of the accused showed up in court for fear of being arrested. The RTC judge denied their motion because the RTC did not acquire jurisdiction over the persons of the movants. Did the RTC rule correctly? (4%)

XI

Arturo lent P1 Million to his friend Robert on the condition that Robert execute a promissory note for the loan and a real estate mortgage over his property located in Tagaytay City. Robert complied. In his promissory note dated September 20, 2006, Robert undertook to pay the loan within a year from its date at 12% per annum interest. In June 2007, Arturo requested Robert to pay ahead of time but the latter refused and insisted on the agreement. Arturo issued a demand letter and when Robert did not comply, Arturo filed an action to foreclose the mortgage. Robert moved to dismiss the complaint for lack of cause of action as the debt was not yet due. The resolution of the motion to dismiss was delayed because of the retirement of the judge.

1. On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended complaint alleging that Robert's debt had in the meantime become due but that Robert still refused to pay. Should the amended complaint be allowed considering that no answer has been filed? (3%)

2. Would your answer be different had Arturo filed instead a supplemental complaint stating that the debt became due after the filing of the original complaint? (2%)

XII

After receiving the adverse decision rendered against his client, the defendant, Atty. Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase in the monetary damages awarded. The RTC instead rendered an amended decision further reducing the monetary awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving the amended decision? (3%)

XIII

An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the grounds of neglect of duties as administrator and absence from the country. On his part the heir/oppositor served written interrogatories to the administrator preparatory to presenting the latter as a witness. The administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter. (4%)

XIV

On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardo's lawyer for him to testify on the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (4%)

XV

Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and transferring the tax declaration thereon in his name. Roscoe sold the northern half to Bono, Salvio's cousin. Upon learning of the sale, Salvio asked Roscoe to convey the southern half to him. Roscoe refused as he even sold one-third of the southern half along the West to Carlo. Thereupon, Salvio filed an action for the reconveyance of the southern half against Roscoe only. Carlo was not impleaded. After filing his answer, Roscoe sold the middle third of the southern half to Nina. Salvio did not amend the complaint to implead Nina.

After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern half to Salvio. The judgment became final and executory. A writ of execution having been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that they are not bound by the judgment as they are not parties to the case. Is the contention tenable? Explain fully. (4%)

XVI

The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%)

XVII

Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben remained in possession of the property. When Ben failed to repurchase the same, title was consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred that the case should be dismissed because Del had never been in possession of the property. Is Ben correct? (4%)

XVIII

Domenico and Gen lived without benefit of marriage for twenty years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico's siblings opposed the same on the ground that Gen has no legal personality. Decide. (4%)

XIX

After Alma had started serving her sentence for violation of Batas Pambansa Blg. 22 (BP 22), she filed a petition for writ of habeas corpus, citing Vaca vs. CA where the sentence of imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to double the amount of the check involved. She prayed that her sentence be similarly modified and that she be immediately released from detention. In the alternative, she prayed that pending determination on whether the Vaca ruling applies to her, she be allowed to post bail pursuant to Rule 102, Sec.14, which provides that if a person is lawfully imprisoned or restrained on a charge of having committed an offense not punishable by death, he may be admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release. In your opinion, is the order of the trial court correct -

1. Under Rule 102? (2%)

2. Under the Rules of Criminal Procedure? (2%)

XX

A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for damages against SPS.

Plaintiffs' counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. (4%)

XXI

1. Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%)

2. Give at least three instances where the Court of Appeals may act as a trial court. (3%)

Taken from lawphil.net

Case Digest: People v. Tan

G.R. No. 117321 February 11, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HERSON TAN y VERZO, accused-appellant.

FACTS:
Tricycle driver Freddie Saavedra went to see his wife, Delfa, a to inform her that he will drive Lito Amido and appellant Herson Tan to Barangay Maligaya. It was the last time that Freddie was seen alive. His body was later found sprawled on a diversion road with fourteen stab wounds.

Subsequently, Lt. Santos, Cpl. Numeriano Aguilar and Pat. Rolando Alandy invited appellant in connection with the instant case and with respect to two other robbery cases reported in Lucena City. During their conversation, appellant allegedly gave an explicit account of what actually transpired in the case at bar. He narrated that he and co-accused Amido were responsible for the loss of the motorcycle and the consequent death of Saavedra. Moreover, he averred that they sold the motorcycle to a certain Danny Teves of Barrio Summit, Muntinlupa. With the help of appellant as a guide, the Lucena PNP immediately dispatched a team to retrieve the same.

Tan and Amido were charged with the crime of highway robbery with murder

Lt. Carlos, on cross-examination, testified that when he invited appellant to their headquarters, he had no warrant for his arrest. In the course thereof, he informed the latter that he was a suspect, not only in the instant case, but also in two other robbery cases allegedly committed in Lucena City. In the belief that they were merely conversing inside the police station, he admitted that he did not inform appellant of his constitutional rights to remain silent and to the assistance of counsel; nor did he reduce the supposed confession to writing.

In a decision dated April 21, 1994, the trial court convicted appellant.

ISSUE: Whether or not the confession of the appellant, given before a police investigator upon invitation and without the benefit of counsel, is admissible in evidence against him.

HELD: No.

It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. R.A. No. 7438 reenforced the constitutional mandate protecting the rights of persons under custodial investigation, a pertinent provision of which reads:

As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. The rules on custodial investigation begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that tends itself to eliciting incriminating statements that the rule begins to operate.

Furthermore, not only does the fundamental law impose, as a requisite function of the investigating officer, the duty to explain those rights to the accused but also that there must correspondingly be a meaningful communication to and understanding thereof by the accused. A mere perfunctory reading by the constable of such rights to the accused would thus not suffice.
Under the Constitution and existing law and jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.

While the Constitution sanctions the waiver of the right to counsel, it must, however, be "voluntary, knowing and intelligent, and must be made in the presence and with the assistance of counsel."

Any statement obtained in violation of the constitution, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the confession contains a grain of truth, if it was made without the assistance of counsel, it becomes inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. The evidence for the prosecution shows that when appellant was invited for questioning at the police headquarters, he allegedly admitted his participation in the crime. This will not suffice to convict him, however, of said crime. The constitutional rights of appellant, particularly the right to remain silent and to counsel, are impregnable from the moment he is investigated in connection with an offense he is suspected to have committed, even if the same be initiated by mere invitation. "This Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of government."

Case Digest: People v. Tampus

G.R. No. L-44690 March 28, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE TAMPUS Y PONCE, accused whose death sentence is under review.

FACTS:
At around ten o'clock in the morning of January 14, 1976, Celso Saminado, a prisoner in the national penitentiary at Muntinlupa, went to the toilet to answer a call of nature and to fetch water.

The accused, Jose Tampus and Rodolfo Avila, prisoners in the same penal institution, followed Saminado to the toilet and, by means of their bladed weapons, assaulted him. Saminado died upon arrival in the prison hospital. After emerging from the toilet, Tampus and Avila surrendered to a prison guard with their knives. They told the guard: "Surrender po kami, sir. Gumanti lang po kami."

The officer of the day investigated the incident right away. In his written report submitted on the same day when the tragic occurrence transpired, he stated that, according to his on-the-spot investigation, Avila stabbed Saminado when the latter was armed in the comfort room and his back was turned to Avila, while Tampus stabbed the victim on the chest and neck

Two days after the killing, or on January 16, another prison guard investigated Tampus and Avila and obtained their extrajudicial confessions wherein they admitted that they assaulted Saminado.

The trial was held at the state penitentiary at the insistence of the Avila. The court found Tampus and Avila guilty for the murder of Saminado.

In this review of the death sentence, the counsel de oficio of appellant raises the following issues:

ISSUES:
1. Whether or not the confession of Tampus was taken in violation of Section 20, Article IV of the Constitution (now Sec. 12, Art. IV of the 1987 Const)
2. W/N the trial court should have advised defendant Tampus of his right to remain silent after the fiscal had presented the prosecution's evidence and when counsel de oficio called upon Tampus to testify
3. W/N defendant Tampus was denied to his right to public trial because the arraignment and hearing were held at the state penitentiary

HELD:
1. No. Even before the investigation for the killing was inititated, Tampus and Avila had already admitted it when, after coming out of the scene of the crime, they surrendered to the first guard whom they encountered, and they revealed to him that they had committed an act of revenge. That spontaneous statement, elicited without any interrogation, was part of the res gestae and at the same time was a voluntary confession of guilt.
Not only that. The two accused, by means of that statement given freely on the spur of the moment without any urging or suggestion, waived their right to remain silent and to have the right to counsel. That admission was confirmed by their extrajudicial confession, plea of guilty and testimony in court.

Under the circumstances, it is not appropriate for counsel de oficio to rely on the rulings in Escobedo vs. Illinois and Miranda vs. Arizona regarding the rights of the accused to be assisted by counsel and to remain silent during custodial interrogation.

It should be stressed that, even without taking into account Tampus' admission of guilt, confession, plea of guilty and testimony, the crime was proven beyond reasonable doubt by the evidence of the prosecution.

2. No, considering that Tampus pleaded guilty and had executed an extrajudicial confession.
The court during the trial is not duty-bound to apprise the accused that he has the right to remain silent. It is his counsel who should claim that right for him. If he does not claim it and he calls the accused to the witness stand, then he waives that right

3. No. The record does not show that the public was actually excluded from the place where the trial was held or that the accused was prejudiced by the holding of the trial in the national penitentiary.

Besides, there is a ruling that the fact that for the convenience of the witnesses a case is tried in Bilibid Prison without any objection on the part of the accused is not a ground for reversal of the judgment of conviction (U.S. vs. Mercado, 4 Phil. 304).

The accused may waive his right to have a public trial as shown in the rule that the trial court may motu propio exclude the public from the courtroom when the evidence to be offered is offensive to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorneys for the prosecution and defense.


TEEHANKEE, J., dissenting:

The extra-judicial confession of the accused is manifestly barred from admission under the Bill of Rights.

I have grave doubts as to the alleged waiver by the accused of his constitutional right to counsel and to remain silent given in the middle of his "voluntary" extrajudicial confession during his custodial interrogation by the prison investigator, who at such late stage (in propounding question No. 6, not at the beginning of the interrogation) purportedly took time out to admonish and inform the accused of his rights to counsel and to silence. The fundamental rights of such unfortunate disadvantaged persons as the accused should all the more be clearly protected and observed. At the very least, such alleged waiver must be witnessed by a responsible official of the penitentiary, if not by the municipal judge of the locality.

Counsel for the accused's second assigned error is also well taken. After the prosecutor had presented the State's evidence at the hearing for the purpose, and when counsel de oficio then called upon the accused to testify, it became the trial court's duty (contrary to the majority's ruling) to apprise and admonish him of his constitutional rights to remain silent and against self-incrimination, i.e. the right not to be compelled to be a witness against himself.

Under the above-cited section 20 of the Bill of Rights, any confession or incriminatory statement obtained in violation thereof is expressly declared "inadmissible in evidence."

Quizzer: Ejecting a Paying Lessee

Q: Lessor X leased out his house to Lessee Y on a monthly basis. A few months later, X gave a written notice to Y to vacate the premises since the latter was not paying his rent.

Y refused to vacate the property. X was compelled to file an Ejectment suit against Y. This prompted Y to pay his back rentals, which X accepted. Thereafter, Y filed a Motion to Dismiss before the court, arguing that X already waived his action for Ejectment when he accepted the payment of back rentals.

Is Y's contention correct? Should X's action for ejectment be dismissed?

A: No and no.

The acceptance by the lessor of the payment by the lessee of the rentals in arrears does not constitute a waiver of the default in the payment of rentals as a valid cause of action for ejectment.

Indeed, it is illogical or ridiculous not to accept the tender of payment of rentals merely to preserve the right to file an action for ejectment.

X can rightly accept rental payments only to mitigate losses it would otherwise suffer because of the continued occupation of the premises by Y.


See: Clutario v. CA (G.R. No. 76656 December 11, 1992) and Carlos v. CA (G.R. No. 109887 February 10, 1997)
Photo: Marcin Wichary, Creative Commons, Flickr

Preliminary Attachment Quizzer

Q: ABC Corporation filed a complaint for a sum of money with a prayer for the immediate issuance of a writ of attachment against X. Immediately thereafter, the judge issued an order granting the issuance of a writ of attachment without acquiring jurisdiction over X.

Is the writ of attachment valid?


A: Yes.

It is well-settled that a writ of preliminary attachment may be validly applied for and granted even before the defendant is summoned or is heard from.

A preliminary attachment may be defined as the provisional remedy in virtue of which a plaintiff or other proper party may, at the commencement of the action or any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. It is a remedy which is purely statutory in respect of which the law requires a strict construction of the provisions granting it. Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant.

Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time thereafter." The phrase "at the commencement of the action," obviously refers to the date of the filing of the complaint; and the reference plainly is to a time before summons is served on the defendant or even before summons issues. What the rule is saying quite clearly is that after an action is properly commenced by the filing of the complaint and the payment of all requisite docket and other fees, the plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the pertinent requisites laid down by law, and that he may do so at any time, either before or after service of summons on the defendant. And this indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counterclaim, cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at the commencement of the action if it finds the application otherwise sufficient in form and substance.


Case: Oñate v. Abrogar, G.R. No. 107303, February 21, 1994

Forfeiture of Bail Bond

Q: The accused in a criminal case failed to appear in person before the court. Accordingly, the trial court declared his bail forfeited. The trial court gave the bondsmen a 30-day period to produce the accused or a reasonable explanation for their non-production. However, two years had passed from the time the court ordered the forfeiture and still no judgment had been rendered against the bondsmen for the amount of the bail. Instead, an order of execution was issued and the property was put up for sale and was awarded to the highest bidders in good faith.

Can the bondsmen still go after the property, on the ground that the trial court did not render a judgment against them?


A: Yes.

Section 21, Rule 114 of the Revised Rules on Criminal Procedure clearly provides for the procedure to be followed before a bail bond may be forfeited and a judgment on the bond rendered against the surety. There are two requisites before the trial court judge may rule adversely against the bondsmen in cases when the accused fails to appear in court. First, the non-appearance by the accused is cause for the judge to summarily declare the bond as forfeited. Second, the bondsmen, after the summary forfeiture of the bond, are given 30 days within which to produce the principal and to show cause why a judgment should not be rendered against them for the amount of the bond.

It is only after this 30-day period (during which the bondsmen are afforded the opportunity to be heard by the trial court) that the trial court may render a judgment on the bond against the bondsmen. Judgment against the bondsmen cannot be entered unless such judgment is preceded by the order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so.

In this case, no such judgment was ever issued and neither has an amount been fixed for which the bondsmen may be held liable. The law was not strictly observed and this violated the bondsmen’s right to procedural due process.

The issue of good faith in buying the property at the auction sale is not material. Since the execution and sale of the land was invalid, the basis for which title to the land had been issued has no more leg to stand on.


Case: Mendoza v. Alarma, G.R. No. 151970, May 7, 2008.
Photo: Jackson West, Creative Commons, Flickr

"Substitution" of Counsel

Q: ATTY RC, a party's original counsel of record, did not appeal the Labor Arbiter's decision. However, ATTY VS filed a notice of entry of appearance as the party's counsel of record and filed an appeal from the Labor Arbiter's Decision without complying with Section 26, Rule 138 of the Rules of Court (i.e. In case of substitution, the name of the attorney newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party).

Was the substitution invalid, thereby making the Labor Arbiter's Decision final?


A: No.

A party may have two or more lawyers working in collaboration in a given litigation. Substitution of counsel should not be presumed from the mere filing of a notice of appearance of a new lawyer. The fact that a second attorney enters his appearance for the same party does not necessarily raise the presumption that the authority of the first attorney has been withdrawn. The entry of appearance of ATTY VS should not give rise to the presumption that ATTY RC withdrew his appearance as counsel in the absence of a formal withdrawal of appearance. ATTY VS should only be treated as collaborating counsel despite his appearance as “the new counsel of record.”


Case: San Miguel Corp. v. Pontillas, G.R. No. 155178, May 7, 2008.
Photo: · YeahjaleaH ·, Creative Commons, Flickr

Word of the Week: Equipoise

Photo: Mario, Creative Commons, Openphoto.net

If the evidence pertinent to a disputed fact is equally balanced or does not produce a rational belief of its existence, the party holding the affirmative as to such fact must fail (People v. Ordoña).

or

When there is nothing in the evidence which shall incline it to one side or the other, the court will find for the defendant(Municipality of Candijay v. CA)

or

Under this rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction. Briefly stated, the needed quantum of proof to convict the accused of the crime charged is found lacking. And in this case, the petitioner must be declared innocent and set free (Maria Tin v. People).


Note: The equipoise rule is also known as the equiponderance of evidence rule.