Post by pinkalou on Oct 16, 2006 15:06:19 GMT 7
Q and A in Remedial Law
May facts outside the information be introduced in a motion to quash?
It is clear from Section 2 of Rule 117, Rules of Court, that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained
among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that facts outside the information itself may be introduced to prove such grounds.
What are the different classes of evidence?
The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
When is certiorari proper?
Certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an aribitrary and despotic manner by reason of passion or personal hostility.
What are the requisites of litis pendentia to constitute an abatement or dismissal of an action?
In order to constitute a ground for the abatement or dismissal of an action, litis pendentia must exhibit the concurrnece of the following requisites: (a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other.
Is contempt subject to a separate action?
The contention that a party's complaint for contempt must be the subject of a separate action would nullify contempt proceedings as means of securing obedience to the lawful processes of a court-this theory would reward ingenuity and cunning in revising orders which substantially are the same as the order previously prohibited by the court.
Who should be impleaded in an action for recovery of ill-gotten wealth?
All persons whether natural or juridical, who stand to lose in favor of the government under a judgment in such actions for recovery of so-called illegally acquired wealth should be impleaded as defendants to afford them an opportunity to be heard and to defend themselves in the action.
When is it necessary to file a separate and distinct action for recovery of ownership or possession of property?
The "proper action", the object of which is for the recovery of ownership or possession of the property seized by the sheriff, is and should be an entirely separate and distinct action from that in which execution has issued, if instituted by a stranger to the latter suit.
What is an action?
An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. The determinative or operative fact which converts a claim into an "action or suit" is the filing of the same with a "court of justice". Filed elsewhere, as with some other body or office not a court of justice, the claim may not be categorized under either term.
When is an agreement regarding venue of suits restrictive? When is it permissive?
The agreement is restrictive in the sense that the suit may be filed only in the place agreed upon by the parties and merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules.
What is the duty of the court when a pleading fails to comply with procedural imperatives?
It is a settled rule that a tribunal may at any time take judicial notice of the records of a case pending before it, and satisfy itself that copies of the pleadings filed by the parties are in the numbers required by its rules. The failure of a pleading to comply with such procedural imperative set by the court, leaves the latter the discretion either to reject that pleading or order completion of the number of copies thereof. Where, however, the party whose pleading has been shunted aside offers to show that it has fully complied with the requirements of the rules and that the records kept by the tribunal contain inaccurate entries, the latter body should pause and listen, and give that party a day in court.
What is the nature of judicial bonds?
Judicial bonds are contractual in nature. They constitute a special class of contracts of guaranty since they are given by virtue of judicial order. Even if the appeal bond is defective, a situation not true in the present case, as long as it is not void and given in good faith and not for the purpose of delay, the trial Court may order its amendment. The appeal should not be dismissed without giving the appellant an opportunity to perfect the bond or to file a new bond.
What are the procedural due process requirements in diclipinary cases of students?
The imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross-examination is not, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
What is the quantum of evidence required in preliminary investigations?
The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof.
What is the responsibilty of a government prosecutor in a criminal case?
It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. The witnesses, even if they are the complaining witnesses cannot act for the prosecutor in the handling of the case. They have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else.
What are the exceptions to the rule that certiorari will not lie unless a motion for reconsideration is first filed?
The rule is that certiorari as a special civil action will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors. There are exceptions to the rule, these are: (1) when the issue raised is purely one of law; (2) where public interest is involved; (3) in cases of emergency; or (4) where special circumstances warrant immediate or more direct action.
Does a court have the power to dismiss a petition if it fails to meet procedural requirements?
A petition must be sufficient in form and substance before further action may be taken thereon by the court. Lacking such sufficiency, as determined by the court itself, the petition may be dismissed outright. It cannot be over stressed that the court is not obliged to waste its time on inadequate pleadings that can only burden its docket and impair the orderly administration of justice. We ourselves have given short shrift to many a petition for non-compliance with the procedural requisites, for being unintelligible or clearly without legal basis, or for some other similar shortcoming.
When is service by registered mail deemed completed? What is the exception?
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 upon the expiration of such period. Inasmuch as the exception refers to only constructive and not actual service, such exception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee.
What would be the best evidence to prove that the notice has been validly sent?
A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made.
What are the periods provided by law for a defendant in a replevin suit to demand the return of his property?
A defendant in a replevin suit, may demand the return of possession of the property replevined by filing a redelivery bond executed to the plaintiff in double the value of the property as stated in the plaintiff's affidavit, within the periods specified in Sections 5 and 6 of Rule 60 of the Rules of Court. Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff' require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character.
What is the purpose of defendant's counterbond?
To forestall the possession by the plaintiff of the property our procedural law provides that the defendant must post a counterbond and must furnish the plaintiff with the copy of the undertaking. Again, if only for the purpose of emphasis, this is required to protect the plaintiff, should his action be adjudged meritorious. This procedure was purposely formulated to allow the defendant to continue possessing the property. Not to require him to post any bond would likewise, be counter to the objectives and intent sought by the framers of the law.
What is the test to determine the value of the testimony of a witness?
Evidence to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to make it easy to believe. No better test has yet been found to determine the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind.
When will the presumption of regularity in the performance of official functions not arise?
When there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer making the certification.
What are the factors for the acceptance of the testimony of a witness with regard to the identity of a malefactor?
Where considerations of visibility are favorable and the witness does not appear to be biased against the accused, his or her assertions as to the identity of the malefactor should be normally accepted. This is more so when the witness is the victim or his near relative because these witnesses usually strive to remember the faces of the assailants.
What is intervention?
Intervention is defined as a "proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings.
Can intervention still prosper after the termination of the main action?
No. An intervention has been regarded as "merely collateral or accessory or ancillary to the principal action and not an independent proceeding; an interlocutory proceeding dependent on or subsidiary to, the case between the original parties." (Francisco, Rules of Court, Vol. 1) The main action having ceased to exist, there is no pending proceeding whereon the intervention may be based.
Are judgements based on compromise appealable?
A judgment based on a compromise is generally not appealable, as enunciated in the case of Serrano et al. vs. Reyes et al. The reason for the rule is that "when both parties enter into an agreement to end a pending litigation and request that a decision be rendered approving said agreement, it is only natural to presume that such action constitutes an implicit, as undeniable as an express, waiver of the right to appeal against said decision.
When does an accused waive his right to object to an information that charges more than one offense?
When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned.
May facts outside the information be introduced in a motion to quash?
It is clear from Section 2 of Rule 117, Rules of Court, that a motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained
among the grounds for a motion to quash in Section 3 of the new Rule 117, it necessarily follows that facts outside the information itself may be introduced to prove such grounds.
What are the different classes of evidence?
The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
When is certiorari proper?
Certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an aribitrary and despotic manner by reason of passion or personal hostility.
What are the requisites of litis pendentia to constitute an abatement or dismissal of an action?
In order to constitute a ground for the abatement or dismissal of an action, litis pendentia must exhibit the concurrnece of the following requisites: (a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other.
Is contempt subject to a separate action?
The contention that a party's complaint for contempt must be the subject of a separate action would nullify contempt proceedings as means of securing obedience to the lawful processes of a court-this theory would reward ingenuity and cunning in revising orders which substantially are the same as the order previously prohibited by the court.
Who should be impleaded in an action for recovery of ill-gotten wealth?
All persons whether natural or juridical, who stand to lose in favor of the government under a judgment in such actions for recovery of so-called illegally acquired wealth should be impleaded as defendants to afford them an opportunity to be heard and to defend themselves in the action.
When is it necessary to file a separate and distinct action for recovery of ownership or possession of property?
The "proper action", the object of which is for the recovery of ownership or possession of the property seized by the sheriff, is and should be an entirely separate and distinct action from that in which execution has issued, if instituted by a stranger to the latter suit.
What is an action?
An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. The determinative or operative fact which converts a claim into an "action or suit" is the filing of the same with a "court of justice". Filed elsewhere, as with some other body or office not a court of justice, the claim may not be categorized under either term.
When is an agreement regarding venue of suits restrictive? When is it permissive?
The agreement is restrictive in the sense that the suit may be filed only in the place agreed upon by the parties and merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fixed by the rules.
What is the duty of the court when a pleading fails to comply with procedural imperatives?
It is a settled rule that a tribunal may at any time take judicial notice of the records of a case pending before it, and satisfy itself that copies of the pleadings filed by the parties are in the numbers required by its rules. The failure of a pleading to comply with such procedural imperative set by the court, leaves the latter the discretion either to reject that pleading or order completion of the number of copies thereof. Where, however, the party whose pleading has been shunted aside offers to show that it has fully complied with the requirements of the rules and that the records kept by the tribunal contain inaccurate entries, the latter body should pause and listen, and give that party a day in court.
What is the nature of judicial bonds?
Judicial bonds are contractual in nature. They constitute a special class of contracts of guaranty since they are given by virtue of judicial order. Even if the appeal bond is defective, a situation not true in the present case, as long as it is not void and given in good faith and not for the purpose of delay, the trial Court may order its amendment. The appeal should not be dismissed without giving the appellant an opportunity to perfect the bond or to file a new bond.
What are the procedural due process requirements in diclipinary cases of students?
The imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross-examination is not, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
What is the quantum of evidence required in preliminary investigations?
The quantum of evidence now required in preliminary investigation is such evidence sufficient to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof.
What is the responsibilty of a government prosecutor in a criminal case?
It is axiomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the examination of the witnesses and the introduction of other evidence. The witnesses, even if they are the complaining witnesses cannot act for the prosecutor in the handling of the case. They have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. In a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else.
What are the exceptions to the rule that certiorari will not lie unless a motion for reconsideration is first filed?
The rule is that certiorari as a special civil action will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors. There are exceptions to the rule, these are: (1) when the issue raised is purely one of law; (2) where public interest is involved; (3) in cases of emergency; or (4) where special circumstances warrant immediate or more direct action.
Does a court have the power to dismiss a petition if it fails to meet procedural requirements?
A petition must be sufficient in form and substance before further action may be taken thereon by the court. Lacking such sufficiency, as determined by the court itself, the petition may be dismissed outright. It cannot be over stressed that the court is not obliged to waste its time on inadequate pleadings that can only burden its docket and impair the orderly administration of justice. We ourselves have given short shrift to many a petition for non-compliance with the procedural requisites, for being unintelligible or clearly without legal basis, or for some other similar shortcoming.
When is service by registered mail deemed completed? What is the exception?
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 upon the expiration of such period. Inasmuch as the exception refers to only constructive and not actual service, such exception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee.
What would be the best evidence to prove that the notice has been validly sent?
A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made.
What are the periods provided by law for a defendant in a replevin suit to demand the return of his property?
A defendant in a replevin suit, may demand the return of possession of the property replevined by filing a redelivery bond executed to the plaintiff in double the value of the property as stated in the plaintiff's affidavit, within the periods specified in Sections 5 and 6 of Rule 60 of the Rules of Court. Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff' require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character.
What is the purpose of defendant's counterbond?
To forestall the possession by the plaintiff of the property our procedural law provides that the defendant must post a counterbond and must furnish the plaintiff with the copy of the undertaking. Again, if only for the purpose of emphasis, this is required to protect the plaintiff, should his action be adjudged meritorious. This procedure was purposely formulated to allow the defendant to continue possessing the property. Not to require him to post any bond would likewise, be counter to the objectives and intent sought by the framers of the law.
What is the test to determine the value of the testimony of a witness?
Evidence to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to make it easy to believe. No better test has yet been found to determine the value of the testimony of a witness than its conformity to the knowledge and common experience of mankind.
When will the presumption of regularity in the performance of official functions not arise?
When there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer making the certification.
What are the factors for the acceptance of the testimony of a witness with regard to the identity of a malefactor?
Where considerations of visibility are favorable and the witness does not appear to be biased against the accused, his or her assertions as to the identity of the malefactor should be normally accepted. This is more so when the witness is the victim or his near relative because these witnesses usually strive to remember the faces of the assailants.
What is intervention?
Intervention is defined as a "proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings.
Can intervention still prosper after the termination of the main action?
No. An intervention has been regarded as "merely collateral or accessory or ancillary to the principal action and not an independent proceeding; an interlocutory proceeding dependent on or subsidiary to, the case between the original parties." (Francisco, Rules of Court, Vol. 1) The main action having ceased to exist, there is no pending proceeding whereon the intervention may be based.
Are judgements based on compromise appealable?
A judgment based on a compromise is generally not appealable, as enunciated in the case of Serrano et al. vs. Reyes et al. The reason for the rule is that "when both parties enter into an agreement to end a pending litigation and request that a decision be rendered approving said agreement, it is only natural to presume that such action constitutes an implicit, as undeniable as an express, waiver of the right to appeal against said decision.
When does an accused waive his right to object to an information that charges more than one offense?
When each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a complex crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. When duplicity of offenses exists in an information the accused must present his objection by filing a motion to quash the information on the ground of duplicity of offenses. If the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial (People v. Medina 59 Phil. 134; People v. Miana 50 Phil. 771). This rule however shall apply only if the accused is formally arraigned and required to plead on all the offenses as are charged in the information. Otherwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned.