More FAQ’s on Remedial Law
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.
What is the duty of the fiscal in prosecuting criminal actions?
It must be admitted that Section 1, Rule 110 makes it mandatory on the Fiscal to commence criminal actions against all persons who appear to be responsible for an offense, but this does not mean that he has no discretion at all. He still is called on to determine whether the evidence before him is enough to justify a reasonable belief that a person has committed an offense. It is the prerogative of the Fiscal, on the basis of the evidence gathered by him, in the exercise of such discretion, to charge the accused to the exclusion of others.
How should a court consider a motion which does not meet the requirements of Sections 4 and 5 of the Rules of Court?
Section 4 of Rule 15 of the Rules of Court requires that notice of motion be served by the movant on all parties concerned at least three (3) days before its hearing. Section 5 of the same Rule provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of themotion. A motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive and the court has no authority to act upon. Service of copy of a motion containing notice of the time and place of hearing of said motion is a mandatory requirement.
Is it the duty of the appellant to prosecute his appeal with reasonable diligence?
A rule long familiar to practitioners in this jurisdiction is that it is the duty of the appellant to prosecute his appeal with reasonable diligence. He cannot simply fold his arms and say that it is the duty of the Clerk of Court of First Instance under the provisions of Section 11, Rule 41 of the Rules of Court to transmit the record on appeal to the appellate court. It is appellants duty to make the Clerk act and, if necessary, procure a court order to compel him to act. He cannot idly sit by and wait till this is done. He cannot afterwards wash his hands and say that delay in the transmittal of the record on appeal was not his fault. For indeed, this duty imposed upon him was precisely to spur on the slothful.
What is the difference between action and cause of action?
A cause of action is the fact or combination of facts which affords a party a right to judicial interference in his behalf. An action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong.
What are the two elements of a cause of action?
The cause of action must always consist of two elements: (1) the plaintiff’s primary right and the defendant’s corresponding primary duty, whatever may be the subject to which they relate person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged.
What is the difference between a right of action and a cause of action?
The term right of action is the right to commence and maintain an action. In the law on pleadings, right of action is distinguished from cause of action in that the former is a remedial right belonging to some persons, while the latter is a formal statement of the operative facts that give rise to such remedial right. The former is a matter of right and depends on the substantive law, while the latter is a matter of statement and is governed by the law of procedure.
When does the right of action accrue and become operative?
The right of action springs from the cause of action, but does not accrue until all the facts which constitute the cause of action have occurred. When there is an invasion of primary rights, then and not until then does the adjective or remedial law become operative, and under it arise rights of action. There can be no right of action until there has been a wrong a violation of a legal right and it is then given by the adjective law.
What is the underlying philosophy of res judicata?
The underlying philosophy of the doctrine of res judicata is that parties ought not to be permitted to litigate the same issue more than once; that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such a trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate, (Marapao v. Mendoza, 119 SCRA 97, Sy Cao v. CA, 132 SCRA 302). It is to the interest of the public that there should be an end to litigation by the same parties and their privies over a subject once fully and fairly adjudicated. Interest republicae ut sit finis litium.
What is the distinction between the failure to file a notice of appeal within the reglementary period and the failure to file a brief within the period granted by the appellate court?
The former results in the failure of the appellate court to acquire jurisdiction over the appealed decision resulting in its becoming final and executory upon failure of the appellant to move for reconsideration. The latter simply results in the abandonment of the appeal which could lead to its dismissal upon failure to move for its reconsideration, in which case the appealed decision would also become final and executory but prior thereto, the appellate court shall have obtained jurisdiction of the appealed decision.