 
### REVIEWER IN

### PROCEDURE AND EVIDENCE GOVERNING PHILIPPINE SHARI'A COURTS

### Mangontawar M. Gubat

Second Edition
Copyright 2012, Mangontawar M. Gubat

Smashwords Edition

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TABLE OF CONTENTS

Dedication

Preface to the Second Edition

Preface to the First Edition

INTRODUCTORY CHAPTER

PART A. GENERAL CONSIDERATIONS

The Courts

Jurisdiction

Action

Venue

PART B. THE SHARI'A COURTS

Shari'a Appellate Court

Shari'a District Courts

Shari'a Circuit Courts

The Special Rules of Procedure Governing the Shari'a Courts

PART I GENERAL PROCEDURES.

Section 1. Commencement of Actions

Section 2. Complaint

Section 3. Service of Summons

Section 4. Answer

Section 5. Failure to Answer

Section 6. Pre-trial

Section 7. Hearing or Trial

Section 8. Judgment

Section 9. Appeal

Section 10. Appeal to the Shari'a District Court

Section 11. Appeal to the Supreme Court

Section 12. Legal Opinion (Fatwa)

Section 13. Pleadings and Motions Disallowed

PART II. OATH (YAMIN)

Section 14. Administration of Oath

Section 15. Mutual Oath (Tahalif)

Section 16. Mutual Imprecation (Li'an)

PART III. SUPPLEMENTAL PROCEEDINGS

Section 17. Suppletory Rule in Civil Cases

Section 18. Suppletory Rule in Special Offenses

PART IV. ARBITRATION PROCEEDINGS

Section 19. Agama Arbitration, how conducted

Section 20. Effectivity.

About the Author

Other Books by the Author at Smashwords
This edition is dedicated to my parents

Hadji Fahad Mabandes Alonto Gubat

and

Hadja Nasriyyah Matara Mapasang Domaub

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**PREFACE TO THE SECOND EDITION**

In the name of God, the Most Compassionate, the Most Merciful.

The first edition of this book was entitled "Reviewer in Islamic Procedure and Evidence." My decision to name the work as such was due to the fact that one of the tests in the Philippine shari'a bar is called "Islamic Procedure and Evidence."

Because the citations in this work are not entirely of Islamic origin but partly of Philippine procedural law, I have decided to change the title for fear that I might do a grave disservice to the Islamic faith. I am afraid I have attributed unto Islamic law what it is not. Thus, I seek refuge to the Almighty God and seek His forgiveness for the mistakes that I have committed in the first edition, and for those that I may commit in the present one.

It is because of that grievous fear that I had foregone the reprinting of this work since it went out of circulation. But recently I have realized that this work may still be needed by candidates to the special shari'a bar examinations as well as shari'a students. In order to overcome that fear, I felt that a renaming of the work is appropriate.

In coming out with this revised edition, I have considered few decisions of the Supreme Court involving the Shari'a courts. The appendices in the original edition were discarded in view of the facility by which students can access local legislations.

I thank the Almighty Creator for giving me the will, courage and strength to come up with this edition.

Mangontawar M. Gubat

July 31, 2012

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**PREFACE TO THE FIRST EDITION**

At a time when my initial work entitled "The Special Rules of Procedure Governing the Shari'a Courts _(Ijra-at Al Mahakim Al Shariah)_ Annotated" has still to pass the test of time, there were suggestions I received to convert it into a reviewer. I would, as I did, take those suggestions as mere passing compliments which indicate no more than a public patronage of my humble work. For, indeed, even students of the King Faisal Center for Arabic, Islamic and Asian Studies find the work a helpful reference material, if not a textbook, in one of their undergraduate shari'a courses.

With the periodic administration of the special Shari'a bar examinations by the Supreme Court of the Philippines at biennial interval and the absence of a comprehensive review material on Islamic Procedure and Evidence, such a benevolent advice deserves consideration.

This review material is a virtual transformation of my work into a "Question and Answer" form. However, innovations brought about by the 1997 Rules of Civil Procedure adopted by the Supreme Court on April 8, 1997 are taken into consideration. As an added feature, suggested answers to Shari'a bar questions in Procedure and Evidence are incorporated herein to give prospective candidates the vicarious feeling of an actual bar examination. The Code of Muslim Personal Laws, pertinent provisions of the Organic Act for the Autonomous Region in Muslim Mindanao, and relevant circulars of the Supreme Court are included in this meager volume as appendices.

In passing, I do not lay claim to any credit attributable to this review material. Any such credit belongs to the legal draftsmen who set out the law, to the great minds of the bench who interpreted and applied it, to the legal authorities whose works guided me in understanding the law, and, finally, to the Almighty who has the monopoly of knowledge. However, errors from misconstruction or inaccurate presentation of the law, jurisprudence and opinions are mine alone.

It is my fervent hope that this work, like its predecessor, will fill the needs of shari'a students, practitioners, judges, and candidates to the Shari'a Bar.

Finally, I wish to express my profound thanks and gratitude to President Juanito Fontelera and Executive Vice-President Dominador Buhain ofthe REX Group of Companies as well as to Ma. Teresa V. Abaca, Head of its Legal Editorial Office, who opened the gate for this humble work to see the light of public circulation.

Mangontawar M. Gubat

03 April 1997

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#  INTRODUCTORY CHAPTER

## PART A

### GENERAL CONSIDERATIONS

Q: Define procedure. (1997, 2001 Shari'a Bar) What is law of procedure?

**ANS:** It is the body of rules that governs or provides the framework of the judicial process (Cound, et al., Civil Procedure, 4th ed., p. 14). It is that which prescribes the method of enforcing rights or obtains redress for their invasion. (Bustos vs. Lucero, 81 Phil 650).

Q: Distinguish rules of procedure from substantive law. (1997, 2001 Shari'a Bar)

**ANS:** As a general rule, laws which fix the duties, establish rights and responsibilities among and for persons, natural or otherwise, are 'substantive laws', while those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are 'procedural laws' or 'rules of procedure' (Black's Law Dictionary, 6th ed., 1990, p. 1203).

Q: How should rules of procedure be construed and why? (1991, 1997, 2001 Shari'a Bar)

**ANS:** Rules of procedure should be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1, Rules of Court) The rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided (Piczon vs. Court of Appeals, G.R. 76378-81, Sept. 24, 1990). The general object of procedure is "to facilitate the application of justice to the rival claims of contending parties," bearing always in mind that procedure is created "not to hinder and delay but to facilitate and promote the administration of justice" (I Moran, p. 115, citing Udanv. Amon, 23 SCRA 837; MacEntee vs. Manotok, 3 SCRA 272).

Q: Define procedure and distinguish it from evidence. (1991 Shari'a Bar)

**ANS:** Procedure is that which prescribes method of enforcing rights or obtaining redress for their invasion (Black's Law Dictionary, 6th ed., 1990, p. 1203).

Procedure and evidence are distinguished as follows:

a) Broadly speaking, procedure, being remedial in nature and not substantive law, includes evidence; whereas evidence is fundamentally a procedural law;

b) Rule of procedure is the means by which the power or authority of a court to hear and decide a class of cases is put to action. (Garcia vs. De Jesus, 206 SCRA 779,788; Manila Railroad Co. vs. Attorney-General, 20 Phil 523) whereas evidence is the mode and manner of proving competent facts in a judicial proceeding. (Bustos vs. Lucero, Phil 640)

c) In the Shari'a courts, its procedure shall be supplemented by the Rules of Court of the Philippines; whereas evidence shall be governed by sources of Muslim law on evidence. (Section 17, Special Rules)

Q: What is the statutory basis of the Special Rules of Procedure Governing the Shari'a Courts (Ijra-at Al Mahakim Al Shariah)?

**ANS:** The Special Rules of Procedure Governing the Shari'a Courts was promulgated by the Supreme Court pursuant to Articles 148 and 158 of the Code of Muslim Personal Laws which provide:

"The Shari'a District Courts (and the Shari'a Circuit Courts) shall be governed by such special rules of procedure as the Supreme Court may promulgate."

Moreover, Section 12, Article IX of RA 6734 provides that "[P]roceedings in the Shari'ah Appellate Court and in the Shari'ah lower courts as are established in the Autonomous Region shall be governed by such special rules as the Supreme Court may promulgate."

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### The Courts

Q: Define court.

**ANS:** A court is an organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice (Black's Law Dictionary).

Q: Is the word "courts" synonymous with "judges"?

**ANS:** Yes. The words "courts" and "judges" are used synonymously and interchangeably, generally speaking. In ordinary parlance, "judges" are spoken of as "courts" and "courts" are referred to when the person means the "judge" only. It is common for laymen, lawyers and judges, as well as the law, to use these terms interchangeably. But there is an important distinction between the court as an entity, and the person who occupies the position of judge .Courts may exist without a judge. There may be a judge without a court ( I Moran citing Pamintuan vs. Lorente, 29 Phil 346).

Q: What are the classifications of courts in the Philippines?

ANS: The classifications of courts in the Philippines are:

A. According to their nature and extent of jurisdiction:

(1) _Court of general jurisdiction_ , one which has the power to adjudicate all controversies which may be brought before it within the legal bounds of rights and remedies except those expressly withheld from its plenary powers. Example: Regional Trial Courts.

(2) _Court of limited or special jurisdiction_ , one whose power to adjudicate is confined to particular causes or can only be exercised under the limitations and circumstances prescribed by statute. Example: Shari'a Circuit Courts.

(3) _Court of original jurisdiction_ , one which has the power to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Example: Shari'a District Courts.

(4) _Court of appellate jurisdiction_ , one which has the authority to review the final order or judgment of a lower court with the power to modify, reverse, sustain or remand, or affirm the same. Example: Shari'a Appellate Court.

B. According to the principles on which they administer justice:

(1) _Civil court_ , one which determines controversies between private persons.

(2) _Criminal court_ , one which is charged with the administration of criminal laws, and the punishment of wrongs to the public (Black's Law Dictionary).

(3) _Court martial,_ a military court pertaining to the executive department of the government for trying and punishing offenses committed by members of the armed forces.

(4) _Admiralty court_ , one which has jurisdiction over admiralty and maritime matters.

(5) _Juvenile court,_ one which has special jurisdiction, of a paternal nature, over delinquent and neglected children.

(6) _Court of equity_ , one which has jurisdiction in equity, which administers justice and decides controversies in accordance with the rules, principles, and precedents of equity, and which follows the forms and procedures of chancery; as distinguished from a court having the jurisdiction, rules, principles, and practice of the common law. ( _Ibid._ )

(7) _Court of law_ , in a wide sense, any duly constituted tribunal administering the laws of the state or nation; in a narrower sense, a court proceeding according to the course of common law and governed by its rules and principles, as contrasted with a "court of equity". ( _Ibid._ )

(8) _Ecclesiastical court_ , one which has jurisdiction over matters pertaining to the religion and ritual of the established church, and the rights, duties, and discipline of ecclesiastical persons as such. ( _Ibid._ )

(9) _Shari'a court_ , one which is charged with the administration of shari'a laws over Muslims.

C. According to the law creating them:

1) _Constitutional court_ , one which owe its creation and existence from the Constitution. Ex: Supreme Court.

(2) _Constitutionally-mandated court_ , one whose existence is provided for in the Constitution but its creation by statutory enactment. Ex: Sandiganbayan.

(3) _Statutory court,_ one which is created and organized and with jurisdiction determined by statute. Ex: Municipal Trial Court.

D. According to their relation with other courts:

(1) _Superior court_ , one which has the power to review, reverse, modify or affirm the order or judgment of a lower court.

(2) _Inferior court_ , one whose order or judgment may be reviewed by a higher court.

E. According to whether they keep a record of their proceedings:

(1) _Court of record_ , one which is bound to keep a record of its proceedings for a perpetual memorial and testimony thereof (Melgar v. Delgado, 53 Phil. 225).

(2) _Court of not record_ , one which is not required by law to keep a record of its proceedings.

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### Jurisdiction

Q: Define jurisdiction.

**ANS:** Jurisdiction is the power and authority of a court to hear, try and decide a case (Herrera vs. Barretto, 25 Phil 245). It is the power and authority to hear and determine a cause or the right to act in a case (Sogod vs. Rosal, G.R. 38204 5, Sept. 21, 1991).

Q: What is the classification of jurisdiction?

**ANS:** Jurisdiction is classified as follows:

(1) _Original jurisdiction_ , the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law (Garcia vs. De Jesus, 206 SCRA 779, 786).

(2) _Appellate jurisdiction_ , the power of a court higher in rank to review the final order or judgment of a lower court and modify, reverse, sustain or remand the same ( _Ibid._ ).

(3) _General jurisdiction_ , the power to adjudicate all controversies which may be brought before a court within the legal bounds of rights and remedies except those expressly withheld from the plenary powers of the court (see I Regalado, 3).

(4) _Limited jurisdiction_ , the power confined to particular causes, or which can only be exercised under the limitations and circumstances prescribed by statute. This is also known as special jurisdiction ( _Ibid._ ).

(5) _Exclusive jurisdiction_ , the power to adjudicate a controversy to the exclusion of all other courts at that stage ( _Ibid._ ).

(6) _Concurrent jurisdiction_ , the power conferred upon different courts, whether of the same or different ranks, to take judicial cognizance at the same stage of the same case in the same or different judicial territories ( _Ibid._ ).

(7) _Delegated jurisdiction_ , the power conferred upon a court to hear and determine certain cases such as cadastral and land registration under certain conditions ( _Ibid._ ).

Q: Distinguish jurisdiction from venue. (1987 Shari'a Bar)

**ANS:** Jurisdiction is distinguished from venue as follows:

(1) Jurisdiction is the authority of a court to hear, try and decide a case; venue is the place where the action must be instituted and tried.

(2) Jurisdiction is a matter of substantive law; venue is a procedural or adjective law.

(3) Jurisdiction is conferred by law or the constitution (Garcia vs. De Jesus, _supra_ ; Orosa, Jr. vs. CA, G.R. Nos. 76828 32, 28 January 1991; Bacalso vs. Ramolete, 21 SCRA 519) and cannot be conferred by the consent of the parties or by their failure to object to the lack of it (Lee vs. Presiding Judge, G.R. 60789, Nov. 10, 1986); venue may be conferred by the act or agreement of the parties (Sec. 4, Rule 4, Rules of Court, as amended; Manila Railroad Co. vs. Attorney-General, 20 Phil. 523).

(4) Jurisdiction creates a relation between the court and the subject matter; venue creates a relation between the parties to the action. (See I Regalado p.5)

Q: Distinguish jurisdiction from procedure.

**ANS:** Jurisdiction and procedure are distinguished as follows:

1) Jurisdiction is the power and authority of a court to hear, try and decide a case (Herrera vs. Barretto, 25 Phil 245); while procedure is the means by which the power or authority of a court to hear and decide a class of cases is put to action (Garcia vs. De Jesus, 206 SCRA 779,788; Manila Railroad Co. vs. Attorney General, 20 Phil. 523).

2) Rules of procedure are remedial in nature and not substantive ( _Ibid._ ); while jurisdiction is a matter of substantive law.

Q: How is jurisdiction acquired?

**ANS:** Jurisdiction over the following, which are necessary for the exercise of jurisdiction, is acquired as follows:

(1) _Over the plaintiff or petitioner_. \-- Jurisdiction over the person of the plaintiff or petitioner is acquired by the filing of the complaint or other appropriate pleading before the court (Davao Light & Power Co., Inc. vs. CA., G.R. 93262, Nov. 29, 1991).

(2) _Over the defendant or respondent_. \-- Jurisdiction over the person of the defendant or respondent is obtained by the service of summons or other coercive process upon him or by his voluntary appearance or submission to the authority of the court ( _Ibid._ ).

(3) _Over the subject matter or nature of the action_. -- Jurisdiction over the subject matter or nature of the action is conferred by law (I Regalado p. 6). By the filing of the complaint or other initiatory pleading, the jurisdiction of the court thereof is invoked or called into activity, and it is this that the court acquires jurisdiction over said subject matter or nature of the action (Davao Light & Power, Co. Inc. vs. CA, _supra_.). It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action (Sun Insurance Office, Ltd. vs. Asuncion, G.R. 79937 38, Feb. 13, 1989).

(4) _Over the issues of the case._ \-- Jurisdiction over the issues of the case is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in a pretrial order or stipulation, or, at times, by their implied consent, as the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Section 5, Rule 10 of the Rules of Court (I Regalado p. 7).

(5) _Over the res (or the property or thing which is the subject of the litigation)_.-- This is acquired by the actual or constructive seizure by the court of the thing in question, thus putting it in _custodia legis_ , as in attachment or garnishment, or by provision of law which recognizes in the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suits involving civil status or real property in the Philippines of a non resident defendant ( _Ibid._ ).

Q: How may the Shari'ah Court acquire jurisdiction over the person of the defendant? (1991, 1997, 1999 Shari'a Bar)

**ANS:** Jurisdiction over the person of the defendant is obtained by the service of summons or other coercive process upon him or by his voluntary appearance or submission to the authority of the court (Davao Light & Power Co., Inc. vs. CA., G.R. 93262, Nov. 29, 1991).

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### A C T I O N

Q: Define action.

**ANS:** 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 (De Guzman, Jr. vs. CA, G.R. 92029-30, Dec. 20, 1990).

Q: What is an action as distinguished from proceeding? (1999 Shari'a Bar)

**ANS:** An action is a 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 while a proceeding, in a general sense, is the form and manner of conducting juridical business before a court or judicial officer (see Black's Law Dictionary, 6th ed., 1990, p. 1204).

Q: What are the classification of actions?

**ANS:** Actions are classified as follows:

A. According to cause or foundation:

(1) _Personal action_ , one which is brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for the commission of an injury to the person or property (Dial Corp. vs. Judge Soriano, G.R. 82330, May 31, 1988) Example: Action for damages.

(2) _Real action_ , one which is affecting title to real property or for the recovery of its possession, or for partition or condemnation of, or foreclosure of mortgage on real property (Hernandez vs. Rural Bank of Lucena, 81 SCRA 84) or one founded on privity of real estate only (Paper Industries Corp. vs. Samson, L 30l73, Nov. 28, l975). Example: _Accion interdictal_

(3) _Mixed action_ , one brought for protection or recovery of real property and also for an award for damages sustained (I Regalado p. 16). Example: _Accion publiciana_ with damages.

B. According to the place where instituted:

(1) _Transitory action_ , one which may be brought in the place of residence of plaintiff or any of the principal plaintiffs, or the place of residence of the defendant or any of the principal defendants (See Sec. 2, Rule 4, Rules of Court, as amended). Example: Breach of contract.

(2) _Local action_ , one which has to be instituted in a particular place independently of the places of residence of the parties (I Moran p. 123 citing CJS 946 949). Example: _Accion publiciana_

C. According to its object:

(1) _Action in rem_ , one directed against the thing or property or status of a person and seek judgment with respect thereto as against the whole world (Ching vs. CA, G.R. 5973l, Jan. 11, l989).

(2) _Action in personam_ , one brought against a specific person on the basis of his personal liability (Dial Corp. vs. Judge Soriano, _supra_.).

(3) _Action quasi in rem_ , one intended to exclude a non-resident defendant from any right or interest in property located in the Philippines (I Moran p. 123 citing Perkins vs. Dizon, 69 Phil 186).

D. According to its purpose:

(1) _Civil action_ , one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong (Sec. 3(a), Rule 1, Rules of Court, as amended).

(2) _Criminal action,_ one by which the State prosecutes a person for an act or omission punishable by law (Sec. 3(b), _Ibid._ ).

Q: Is "real action "synonymous with "action _in rem_ "?

**ANS:** No. A real action should not be confused with an action _in rem_. An action to recover a parcel of land is a real action but it is an action _in personam_ , for it binds a particular individual only although it concerns the right to a tangible thing (Ching vs. CA, _supra_ ).

Q: What is the meaning of cause of action? (1997 Shari'a Bar)

**ANS:** A cause of action is an act or omission by which a party violates a right of another (Sec. 2, Rule 2, Rules of Court, as amended; Rebolido vs. CA, G.R. 81123, Feb. 28, 1989). It is the fact or combination of facts which affords a party a right to judicial interference in his behalf (De Guzman vs CA, _supra_.).

Q: What are the essential elements of cause of action?

**ANS:** The essential elements of a cause of action are:

(1) The legal right of the plaintiff;

(2) The correlative obligation of the defendant to respect that right; and

(3) An act or omission of the defendant in violation of said legal right (Virata vs. Sandiganbayan, G.R. 86926; Mapa vs. Sandiganbayan, G.R. 86949, Oct. l5, l99l; Rebolido vs. CA, _supra_ ; De Guzman vs. CA, _supra_ ; Casenas vs. Rosales, l9 SCRA 462; Remitere vs. Vda de Yulo, l6 SCRA 25l).

Q: Define right of action.

**ANS:** A right of action is the remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him (I Regalado p. 15).

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## PART B

### THE SHARI'A COURTS

Q: What is the origin of the Shari'a Courts in the Philippines?

**ANS:** The establishment of the Shari'a courts in the Philippines has been originally conceived in the 1976 Tripoli Agreement entered into by and between the Philippine Government and the Moro National Liberation Front under the auspices of the Organization of Islamic Conference. It has been agreed, among other things, that "(I)n the areas of autonomy, the Muslims shall have the right to set up their own Courts which implement the Islamic shari'ah laws x x x"(par. 3, 3rd Agreement, Tripoli Agreement).

The Tripoli Agreement was not implemented. Nevertheless, then President Marcos, in the exercise of legislative power, promulgated in l977 PD 1083 otherwise known as the "Code of Muslim Personal Laws" which provided, _inter alia_ , for the creation of courts of limited jurisdiction known as the Shari'a District Courts and the Shari'a Circuit Courts under the administrative supervision of the Supreme Court of the Philippines.

The 1987 Constitution mandated the creation of an autonomous region in Muslim Mindanao and called for the enactment of an organic act for the autonomous region which shall "provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws" (Sec. l5 & l6, Art. X).

Pursuant to this constitutional mandate, RA 6734 otherwise known as the "Organic Act for the Autonomous Region in Muslim Mindanao" was enacted into law. Under this Act, the Shari'a District Courts and Shari'a Circuit Courts created under PD 1083 are mandated to continue to function as provided therein (Sec. 13, Art. IX, RA 6734). In addition, a Shari'a Appellate Court with limited jurisdiction is created by the Act (Sec. 2, _Ibid._ ). The Organic Act was later superseded by RA 9054 expanding the Organic Act for the Autonomous Region in Muslim Mindanao.

Q: Do the Shari'a District Courts form part of the integrated judicial system of the Philippines?

**ANS:** No. Strictly speaking, Shari'a District Courts do not form part of the integrated judicial system of the Philippines. Section 2 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) enumerates the courts covered by the Act, comprising the integrated judicial system. Shari'a Courts are not included in the enumeration notwithstanding that, when said B.P. Blg. 129 took effect on August 14, 1981, P.D. No. 1083 (otherwise known as "Code of Muslim Personal Laws of the Philippines") was already in force. The Shari'a Courts are mentioned in Section 45 of the Act only for the purpose of including them "in the funding appropriations" (Bar Matter No. 702, In the Matter of the Petition to Authorize Shari'a District Judges to Appoint Shari'a Lawyers as Notaries Public, en banc, 12 May 1994).

The fact that a judge of the Shari'a District Court is required by law to possess the same qualifications as those of Regional Trial Courts does not signify that the Shari'a Court is regular court like the Regional Trial Court. The latter is a court of general jurisdiction, _i.e._ , competent to decide all cases, civil and criminal, within its jurisdiction. A Shari'a District Court, created pursuant to Article 137 of Presidential Decree No. 1083, is a court of limited jurisdiction, exercising original jurisdiction only over cases specifically enumerated in Article 143 thereof. In other words, a Shari'a District Court is not a regular court exercising general jurisdiction within the meaning of Section 232 of the Notarial Law ( _Ibid._ ).

Q: Are the Shari'a courts part of the judicial system of the Philippines?

**ANS:** Yes. The Shari'a courts are created as part of the judicial system of the Philippines. They and the personnel thereof are subject to the administrative supervision of the Supreme Court (Art. 137, PD 1083).

Q: Why are the Shari'a Courts of the Philippines courts of limited and special jurisdiction? (2001 Shari'a Bar)

**ANS:** The Shari'a courts of the Philippines are courts of limited and special jurisdiction because their jurisdiction is confined to the class of cases enumerated by PD 1083 otherwise known as the "Code of Muslim Personal Laws." They do not exercise the power conferred upon a court of general jurisdiction, _i.e._ , Regional Trial Court, which has the power to take cognizance over all cases not falling under the exclusive original jurisdiction of any court, tribunal, board or officer.

Q: Is the Shari'a court of the Philippines a regular court or a quasi-judicial body? (2001 Shari'a Bar)

**ANS:** The Shari'a court is neither a regular court nor a quasi-judicial body. It is not a regular court because it does not form part of the integrated judicial system of the Philippines. Nor is it a quasi-judicial body because it exercises judicial power under the supervision of the Supreme Court.

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### Shari'a Appellate Court

Q: What created the Shari'a Appellate Court?

**ANS:** Section 2, Article IX of RA 6734 created the Shari'a Appellate Court which, together with other Shari'a and tribal courts, shall have jurisdiction over cases involving persons, family and property relations. The law was later superseded by RA 9054.

Q: What is the composition of the Shari'a Appellate Court? What are the qualifications of the members thereof?

**ANS:** The Shari'a Appellate Court shall be composed of one (1) Presiding Justice and two (2) Associate Justices (Sec. 8, Art. VIII, RA 9054). The qualifications of a Shari'a Appellate Justice are:

(1) He must be a natural born citizen of the Philippines;

(2) He must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines;

(3) He must be at least forty years of age;

(4) He must be a person of proven competence, integrity, probity and independence (Sec. 7, Art. VIII, Const.; Sec. 7, B.P. 129); nd

(5) He must be learned in Islamic law and jurisprudence Sec. 4(1), Art. IX, RA 6734).

Q: How are members of the Shari'a Appellate Court appointed?

**ANS:** The Members of the Shari'a Appellate Court shall be appointed by the President of the Philippines from a list of at least three (3) nominees prepared by the Judicial and Bar Council. The nominees shall be chosen from a list of recommendees submitted by the Regional Assembly of the Autonomous Region in Muslim Mindanao. Such appointments need no confirmation (Sec. 11, Art. VIII, RA 9054). Any vacancy in the Shari'a Appellate Court shall be filled within ninety (90) days from the occurrence thereof. (Sec. 8, _Ibid._ )

Q: What is the tenure of members of the Shari'a Appellate Court?

**ANS:** The Presiding and Associate Justices of the Shari'a Appellate Court shall serve until they reach the age of seventy (70) years, unless sooner removed for cause in the same manner as Justices of the Court of Appeals or become incapacitated to discharge the duties of their office (Sec. 12, _Ibid._ )

Q: What is the compensation of the members of the Shari'a Appellate Court?

**ANS:** The Presiding and Associate Justices of the Shari'a Appellate Court shall receive the same compensation and enjoy the same privileges as the Presiding Justice and Associate Justices of the Court of Appeals, respectively. (Sec. 13, _Ibid._ )

Q: What governs the proceedings of the Shari'a Appellate Court?

**ANS:** Proceedings in the Shari'a Appellate Court shall be governed by such special rules as the Supreme Court may promulgate (Sec. 17, _Ibid._ ).

Q: State the powers of the Shari'a Appellate Court.

**ANS:** The Shari'a Appellate Court shall have the following powers:

(1) Exercise original jurisdiction over petitions for certiorari, prohibition, mandamus, _habeas corpus_ , and other auxiliary writs and processes only in aid of its appellate jurisdiction; and

(2) Exercise exclusive appellate jurisdiction over all cases tried in the Shari'a District Courts as established by law. (Sec. 9, _Ibid._ ).

Q: Have the Shari'a Courts jurisdiction to issue writs of certiorari, prohibition, and mandamus?

**ANS:** Yes. Except the Shari'a Circuit Courts, the Shari'a Courts have jurisdiction to issue writs of certiorari, prohibition and mandamus in aid of their appellate jurisdiction. These courts exercise the power to issue writs of certiorari, prohibition and mandamus by virtue of express legislative enactment, to wit:

(1) Section 9 of Republic Act No. 9054, or the Expanded Organic Act for the Autonomous Region in Muslim Mindanao, to the Shari'ah Appellate Court; and

(2) Article 143[e], Chapter I, Title I, Book IV of Presidential Decree No. 1083, or the Code of Muslim Personal Law, to Shari'a District Courts. (Leon Garcia, Jr. vs. Sandiganbayan, et al., G.R. No. 114135, October 7, 1994; Ramon Veloria vs. Commission on Elections, G.R. No. 94771, July 29, 1992; Daniel Garcia vs. Ernesto de Jesus, G.R. Nos. 97108-09 March 4, 1992; Tomas Tobon Uy vs. Commission on Elections, et al., G.R. Nos. 97108-09, March 4, 1992)

Q: The parties are Muslims. "A" filed in the Shari'ah District Court of the City of Zamboanga an action against "B" for the recovery of a sum of money. After due trial, judgment was rendered in favor of "A" sentencing "B" to pay the amount demanded in the complaint. Immediately after receiving notice of the judgment, "B" filed a motion for reconsideration on the ground that the judgment was contrary to law and the evidence. Before the motion for reconsideration could be heard, the records of the case were totally destroyed by a fire that gutted the Hall of Justice where the Shari'ah District Court was located. One year thereafter, the records of the case were duly reconstituted. Immediately after the reconstitution, "B" filed a petition praying that his pending motion for reconsideration be heard and resolved. "A", in turn, filed a motion praying for execution of judgment, alleging that the judgment had already become final on the ground that "B" had failed to perfect the appeal on time. The court, without deciding "B's" motion for reconsideration, ordered the issuance of the writ of execution.

If you were the attorney for "B", what proceedings would you institute to protect the rights and interest of your client? (1987 Shari'a Bar)

**ANS:** If I were attorney for "B", I would file before the Shari'a Appellate Court a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction against the presiding judge of the Shari'a District Court on the ground of grave abuse of discretion amounting to lack or in excess of jurisdiction. The petition is intended to correct the act of the presiding judge in ordering the issuance of a writ of execution without resolving the reconstituted motion for reconsideration, and to prevent said judge from implementing or carrying out his order (see Section 1 and 2, Rule 65, Rules of Court)

It must be noted, however, that, although the Shari'a Appellate Court, which has jurisdiction over said petition, has been created by Republic Act No. 9054 otherwise known as the Expanded Organic Act for the Autonomous Region in Muslim Mindanao, it is not yet organized. Consequently, the petition may be either be instituted in the Supreme Court pursuant to the case of _Macawiag vs. Balindong, G.R. 159210, Sept. 20, 2006_ , where the Supreme Court laid down the rule that decisions of the Shari'ah District Courts may be brought to the Supreme Court by way of petition for certiorari as a special civil action under Rule 65 of the 1997 Rules of Civil Procedure on questions of jurisdiction.

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### Shari'a District Courts

Q: How are the Shari'a District Courts created?

**ANS:** Article 137 of PD 1083 provides for the creation of the Shari'a District Courts and Shari'a Circuit Courts as follows:

"There are hereby created, as part of the judicial system, courts of limited jurisdiction, to be known respectively as Shari'a District Courts and Shari'a Circuit Courts, which shall exercise powers and functions in accordance with this Title."

Q: What are the shari'a judicial districts?

**ANS:** Five special judicial districts, each to have one Shari'a District Court presided over by one judge, are constituted as follows:

(a) The First Shari'a District comprises the Province of Sulu;

(b) The Second Shari'a District, the Province of Tawi Tawi;

(c) The Third Shari'a District, the Provinces of Basilan, Zamboanga del Norte and Zamboanga del Sur, and the Cities of Dipolog, Pagadian and Zamboanga;

(d) The Fourth Shari'a District, the Provinces of Lanao del Norte and Lanao del Sur, and the Cities of Iligan and Marawi; and

(e) The Fifth Shari'a District, the Provinces of Maguindanao, North Cotabato and Sultan Kudarat, and the City of Cotabato. (Art. 138, PD 1083).

Q: What are the qualifications of a judge of the Shari'a District Court?

**ANS:** A judge of the Shari'a District Court must have the following qualifications, to wit:

(1) He must be a natural born citizen of the Philippines;

(2) He must be at least thirty-five (35) years of age;

(3) He must have been, for at least ten years, engaged in the practice of law in the Philippines or have held a public office requiring admission to the practice of law as an indispensable requisite (Sec. 15, B.P. 129);

(4) He must be learned in Islamic law and jurisprudence (Art. 140, PD 1083); and

(5) He must be of proven competence, integrity, probity and independence (Sec. 7, Art. VIII, Const.).

Q: How are judges of the Shari'a District Courts appointed?

**ANS:** Judges of the Shari'a District Courts shall be appointed by the President of the Philippines from a list of at least three (3) nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation by the Commission on Appointments (Sec. 9, Art. VIII, Const.). Unlike those of the Shari'a Appellate Court, the nominees need not be recommended by the Regional Assembly of the Autonomous Government.

The President shall issue the appointments within ninety days from the submission of the list ( _Ibid._ ).

Q: What is the tenure of Shari'a District judges?

**ANS:** Under Article 141 of PD 1083, Shari'a District judges shall be appointed to serve during good behavior until they reach the age of sixty five years, or become incapacitated to discharge the duties of their office, unless sooner removed for the same causes and in the same manner provided by law for judges of Courts of First Instance (now RTC) (Art. 141, PD 1083).

The retirement age of judges, however, including judges of Shari'a courts has been raised to seventy years by the New Constitution (Sec. 11, Art. VIII, Const.).

Q: State the compensation and perquisites of judges of Shari'a District Courts?

**ANS:** Shari'a District judges shall receive the same compensation and enjoy the same privileges as the judges of Courts of First Instance (now Regional Trial Courts). (Art. 142, PD 1083)

Q: What rules govern the proceedings of the Shari'a District Courts?

**ANS:** According to Article 148 of the Code of Muslim Personal Laws, the Shari'a District Courts shall be governed by such special rules of procedure as the Supreme Court may promulgate.

Pursuant to this and the provision of Article 158 of the same Code, the Supreme Court promulgated on September 20, 1983 the Special Rules of Procedure Governing the Shari'a Courts _(Ijra at Mahakim al Shari'ah)_ which also applies to the Shari'a Circuit Courts.

Q: Enumerate the cases cognizable by the Shari'ah District Court in the exercise of its:

a) exclusive original jurisdiction;

b) concurrent jurisdiction with the civil courts; and

c) appellate jurisdiction. (1987, 1993 Shari'a Bar)

**ANS:** a) _Exclusive original jurisdiction._ The Shari'a District Court shall have exclusive original jurisdiction over:

(1) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws (PD 1083);

(2) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property;

(3) Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of the Code;

(4) All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

(5) All petitions for mandamus, prohibition, injunction, certiorari, _habeas corpus_ , and all other auxiliary writs and processes in aid of its appellate jurisdiction. (Art. 143, PD 1083)

b) _Concurrent original jurisdiction_ _._ Concurrently with existing civil courts, the Shari'a District Courts shall have original jurisdiction over:

(1) Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an asylum;

(2) All other personal and real actions not mentioned in paragraph 1(d) of Article 143 of the Code of Muslim Personal Laws wherein the parties involved are Muslims except those of forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Trial Courts, Municipal Trial Courts, or Metropolitan Trial Courts; and

(3) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims.( _Ibid._ )

c) _Appellate jurisdiction._ The Shari'a District Courts shall have appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. They shall decide every case appealed to them on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit. (Art. 144, _Ibid._ )

Q: Enumerate the cases falling under the appellate jurisdiction of the Shari'ah District Courts and explain the procedure and manner of appeal. (1993 Shari'a Bar)

**ANS:** The Shari'a District Courts shall have appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. (Art. 144, _Ibid._ )

An appeal to the Shari'a District Courts shall be made by filing a notice of appeal and by paying the docket fee to the court which rendered the decision within fifteen (15) days from receipt of the judgment.(Section 9, Special Rules; De Guzman vs. IAC, G.R. 66350, Jan. 20, 1989)

The Shari'a District Court shall decide every case appealed to them on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit. (Art. 144, PD 1083)

Q: Differentiate exclusive original jurisdiction from concurrent original jurisdiction of the shari'a district court. Give example of each. (1983 Shari'a Bar)

**ANS:** Exclusive original jurisdiction of the shari'a district court is the power to adjudicate a controversy instituted for judicial action for the first time to the exclusion of all other courts at that stage; whereas concurrent original jurisdiction is the power of the shari'a district court conferred upon it to take, concurrently with other courts, judicial cognizance over an action instituted for the first time.

The Shari'a District Court shall have exclusive original jurisdiction over:

(a) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim Personal Laws;

(b) All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property;

(c) Petitions for the declaration of absence and death and for the cancellation or correction of entries in the Muslim Registries mentioned in Title VI of Book Two of the Code;

(d) All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; and

(e) All petitions for mandamus, prohibition, injunction, certiorari, _habeas corpus_ , and all other auxiliary writs and processes in aid of its appellate jurisdiction. (Art. 143, PD 1083)

Concurrently with existing civil courts, the Shari'a District Court shall have original jurisdiction over:

(a) Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an asylum;

(b) All other personal and real actions not mentioned in paragraph 1(d) of Article 143 of the Code wherein the parties involved are Muslims except those of forcible entry and unlawful detainer, which shall fall under the exclusive original jurisdiction of the Municipal Circuit Trial Courts, Municipal Trial Courts, or Metropolitan Trial Courts; and

(c) All special civil actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims. ( _Ibid._ )

Q: Before his death, Jamiri Musa, a Muslim, was a resident of Linao, Upi, Maguindanao. He left extensive real and personal properties located in the provinces of Maguindanao, Davao del Sur, and Davao Oriental. A joint petition for the administration and settlement of his intestate estate and liquidation of conjugal partnership was filed by respondent surviving wife before the Shari'a District Court, Fifth District, with station at Cotabato City. That Court embraces the province of Maguindanao but not the provinces of Davao del Sur and Davao Oriental. Petitioners opposed the petition contending that venue is improperly laid and that the action is beyond the jurisdiction of the Shari'a District Court at Cotabato City. Is the contention tenable?

**ANS:** The contention is not tenable. In _Wahida Musa vs. Moson,_ where petitioners claimed that since the deceased Jamiri Musa's residence at the time of his death was in Davao City, not Maguindanao, the proceeding is beyond the jurisdiction of the Shari'a District Court, Fifth Shari'a District, with station at Cotabato City and embraces Maguindanao, and that venue is more properly laid in Davao City before the Regional Trial Court, since there are no Shari'a District Courts in Davao, the Supreme Court held:

"Since the disposition, distribution and settlement of the estate of a deceased Muslim is, in fact, involved herein, the Joint Petition was correctly filed before the Shari'a District Court, Fifth Shari'a District.

x xx

"Since the subject intestate proceeding concerns successional rights, coupled with the fact that the decedent was also a resident of Linao, Upi, Maguindanao, owning real estate property located in that province, venue has been properly laid with the Shari'a District Court, Fifth Shari' District, which is vested with territorial jurisdiction over Maguindanao, notwithstanding the location in different provinces of the other real properties of the decedent.

xxx

"The Rules of Court likewise provide that the Court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other Courts (Rule 73, Sec. 1). There should be no impediment to the application of said Rules as they apply suppletorily to the Code of Muslim Personal Laws, there being nothing inconsistent with the provisions of the latter statute" (Article 187 of said Code).(200 SCRA 715, 721 (1991).

Q: Abdulwahaf, a Filipino Muslim, married Kathrina, a Christian Filipino, pursuant to P.D. 1083. His wife wants to adopt a baby, who was abandoned by their maid. As her lawyer, in what court should you file the action for adoption? Explain. (1993 Shari'a Bar)

**ANS:** If I were Kathrina's lawyer, I would file the action before the Regional Trial Court because an action for adoption is not among the cases which fall within the jurisdiction of the Shari'a courts. It must be noted that Islamic law recognizes no legal consequences of an adoption.

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### Shari'a Circuit Courts

Q: How are the Shari'a Circuit Courts established? How are their territorial jurisdiction fixed?

**ANS:** The Shari'a Circuit Courts are established by Article 137 of the Muslim Code as follows:

(a) Six courts in the Province of Sulu;

(b) Eight in the province of Tawi Tawi;

(c) Ten in and for the provinces of Basilan, Zamboanga del Norte, Zamboanga del Sur, and the Cities of Dipolog, Pagadian and Zamboanga;

(d) Twelve in and for the Provinces of Lanao del Norte and Lanao del Sur and the Cities of Iligan and Marawi;

(e) Fifteen in and for the Provinces of Maguindanao, North Cotabato, and Sultan Kudarat and the City of Cotabato. (Art. 150, _Ibid._ ).

The territorial jurisdiction of each of the Shari'a Circuit Courts shall be fixed by the Supreme Court on the basis of geographical contiguity of the municipalities and cities concerned and their Muslim population ( _Ibid._ ).

Q: What are the qualifications of judges of the Shari'a Circuit Courts?

Article 152 of PD 1083 provides that:

"No person shall be appointed judge of the Shari'a Circuit Court unless he is a natural born citizen of the Philippines, at least twenty five years of age, and has passed an examination in the Shari'a and Islamic jurisprudence _(fiqh)_ to be given by the Supreme Court for admission to special membership in the Philippine Bar to practice in the Shari'a courts."

Section 13 of Article IX of RA 6734 provides:

"The Shari'a District Courts and the Shari'a Circuit Courts created under existing laws shall continue to function as provided therein. The judges of the Shari'a courts shall have the same qualifications as the judges of the Regional Trial Courts, the Metropolitan Trial Courts or the Municipal Circuit Trial Courts as the case may be. In addition, they must be learned in Islamic law and jurisprudence."

and Section 26 of the Judiciary Reorganization Act prescribes the qualifications of judges of the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts as follows:

"No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court unless he is a natural born citizen of the Philippines, at least 30 years of age, and for at least five years, has been engaged in the practice of law in the Philippines or has held public office in the Philippines requiring admission to the practice of law as an indispensable requisite."

Being of later legislation, RA 6734 has impliedly modified the Code of Muslim Personal Laws. Consequently, the qualifications of a judge of the Shari'a Circuit Court maybe summed up as follows: (1) he must be a natural born citizen of the Philippines; (2) at least 30 years of age; (3) for at least five years, has been engaged in the practice of law in the Philippines or has held public office requiring admission to the practice of law as an indispensable requisite; (4) has passed an examination in the Shari'a and Islamic jurisprudence given by the Supreme Court; and (5) must be of proven competence, integrity, probity and independence.

Q: State the manner of appointment of judges of Shari'a Circuit Courts and their tenure.

**ANS:** Judges of the Shari'a Circuit Courts shall be appointed in the same manner as, and shall serve for a term as those of, judges of the Shari'a District Courts. (Arts. 152 and 153, Muslim Code).

Q: State the compensation and perquisites of judges of Shari'a Circuit Courts.

**ANS:** Shari'a Circuit judges shall receive the same compensation and enjoy the same privileges as judges of the Municipal Circuit Courts (now Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court) (Art. 154, _Ibid._ ).

Q: What rules govern the proceedings of the Shari'a Circuit Courts?

**ANS:** The proceedings of the Shari'a Circuit Courts shall be governed by such special rules of procedure as the Supreme Court may promulgate. (Art. 158, _Ibid._ )

The Special Rules of Procedure Governing the Shari'a Courts promulgated by the Supreme Court apply in the Shari'a Circuit Courts.

Q: Enumerate the cases falling within the exclusive original jurisdiction of the Shari'ah Circuit Courts. (1987 Shari'a Bar)

**ANS:** The Shari'a Circuit Courts shall have exclusive original jurisdiction over:

(1) All cases involving offenses defined and punished under the Code of Muslim Personal Laws;

(2) All civil actions and proceedings between parties who are Muslims or have been married in accordance with Article 13 of the Code involving disputes relating to: (a) marriage; (b) divorce recognized under the Code; (c) betrothal or breach of contract to marry; (d) customary dower _(mahr)_ ; (e) disposition and distribution of property upon divorce; (f) maintenance and support, and consolatory gifts _(mut'a)_ ; and (g) restitution of marital rights;

(3) All cases involving disputes relative to communal properties (Art. 155, _Ibid._ ).

Q: What are the specific offenses punishable under P.D. 1083 which are cognizable by the Shari'ah Circuit Courts? (1987, 1991, 1993 Shari'a Bar)

**ANS:** The offenses under PD l083 cognizable by the Shari'a Circuit Courts are quite few, namely:

(1) Illegal solemnization of marriage (Art. l8l, PD l083);

(2) Marriage before expiration of _'idda_ (Art. l82, _Ibid._ ).

(3) Offenses relative to subsequent marriage, divorce, and revocation of divorce (Art. l83, _Ibid._ ).

(4) Failure to report for registration (Art. l84, Ibid);

(5) Neglect of duty by registrars (Art. l85, _Ibid._ ).

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**Venue**

Q: Define venue.

**ANS:** Venue has been defined as the place of trial or geographical location on which an action or proceeding should be brought and not to the jurisdiction of the court (Manila Railroad Co. vs. Attorney-General, 20 Phil. 523, 558). It is the territorial limits within which judicial power is exercised over an action or special proceedings.

Q: What is the venue of real actions?

**ANS:** Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4, Rules of Court).

Q: What if the venue of personal actions?

**ANS:** All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff (Sec. 2, _Ibid_ ).

Q: Who has the right to choose venue?

**ANS:** The choice of venue for personal actions is given to the plaintiff but not to the plaintiff's caprice because the matter is regulated by the Rules of Court (Clavecilla Radio System vs. Antillon, 19 SCRA 379 [1967]; Sulo ng Bayan vs. Gregorio Araneta, Inc., 72 SCRA 348 [1976]). The choice should be that place of residence of a principal party, not a mere nominal party.

Q: What is the venue of actions against non-residents?

**ANS:** If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found (Sec. 3, Rule 4, Rules of Court).

Q: When is the Rule on venue not applicable?

**ANS:** The Rules on venue shall not apply (a) in those cases where a specific rule or law provides otherwise; or (b) where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4, _Ibid_ ).

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#  The Special Rules of Procedure Governing the Shari'a Courts

Q: State the legal basis of the promulgation of the Special Rules of Procedure Governing the Shari'a Courts.

**ANS:** Pursuant to the Constitution of the Philippines and Article 148 and 158 of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, and to achieve an expeditious and inexpensive determination of the cases referred to therein, the Supreme Court resolved to promulgate the Special Rules of Procedure Governing the Shari'a Courts _(Ijra at Al Mahakim Al Shari'ah)_.

Q: State the rule making power of the Supreme Court.

**ANS:** The 1987 Constitution of the Philippines provides, among other things, that the Supreme Court shall have the power to:

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial bodies shall remain effective unless disapproved by the Supreme Court (Sec. 5, Art. VIII, Const.).

Q: What are the limitations of the rule making power of the Supreme Court?

The rules that the Supreme Court may promulgate pursuant to such constitutional provision are subject to the following constitutional limitations:

(1) That said rules must concern the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged;

(2) That said rules must be uniform for all courts of the same grade; and

(3) That they must not diminish, increase, or modify substantive rights.

It is worthy to note that a fourth limitation appearing in both the 1935 and 1973 Constitutions, _i.e._ , the power of the legislature to repeal, alter, or supplement the rules promulgated by the Supreme Court, has been deleted in the new Constitution.

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# PART I

### GENERAL PROCEDURES

### Section 1. Commencement of Actions

Q: How may an action ( _da'wa_ ) be commenced in the Shari'ah Court under the Special Rules of Procedure? (1987, 1993 Shari'a Bar). How do you commence an action or proceeding in the Shari'ah Court? Explain. (1991, 1995, 1999 Shari'a Bar)

**ANS:** All actions and proceedings in the Shari'a Court shall be commenced by complaint which shall be prepared at least in triplicate by the plaintiff ( _mudda'i_ ) or his counsel ( _wakil_ ) or by the clerk of court (Sec. 1, Special Rules).

A civil action is commenced by the filing of the original complaint in court (Sec. 5, Rule 1, Rules of Court). It is the delivery of the complaint to an officer of the court authorized to receive it which constitutes filing of the complaint. Where the complaint is filed by registered mail, it is the actual date of mailing that is considered as the date of filing. However, where the docket fee is subsequently paid, the date of such payment or the mailing of said amount thereof shall be considered as the date of filing of the complaint (Ago Timber Corp. vs. Ruiz, L 23887, Dec. 26, l987).

If an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 5, _Op. cit._ )

In _Sun Insurance Office, Ltd. vs. Asuncion, G.R. 79937-38, Feb. 13, 1989_ , the Supreme Court laid down the following rules, to wit:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject matter or nature of the action. Where the initiatory pleading is not accompanied by payment of the docket fee, the court may allow payment of the fee within a reasonable time but in no case beyond the applicable prescriptive or reglementary period;

2. The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall not be considered filed until and unless the filing fee prescribed therefor is paid. The court may also allow payment of said fee within a reasonable time but also in no case beyond its applicable prescriptive or reglementary period;

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. (Cf. Manchester Dev't Corp. vs. CA, 149 SCRA 562).

In _Montaner vs. Shari'a District Court, G.R. 174975, Jan. 20, 2009_ , the Supreme Court clarified that:

"x x x If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of court. In such a case, the lower court concerned will not automatically lose jurisdiction, because of a party's reliance on the clerk of court's insufficient assessment of the docket fees. As 'every citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law,' the party filing the case cannot be penalized with the clerk of court's insufficient assessment. However, the party concerned will be required to pay the deficiency."

Q: State the concept of civil action.

**ANS:** A 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 (Sec. 3(a), Rule 1, Rules of Court; De Guzman, Jr. vs. CA, G.R. 92029 30, Dec. 20, 1990). A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action (Sec. 3, _Ibid._ ).

Q: Who are the parties to an action?

**ANS:** The parties to an action before the Shari'a Courts are the _mudda'i_ and the _mudda'alai_ which the Special Rules translate to plaintiff and defendant, respectively. In Islamic procedural law, the terms "plaintiff" and "defendant" by which _mudda'i_ and _mudda'alai_ have been translated are misleading because the real _mudda'i_ is not necessarily the party who first brings the action before the court (Alauya, Saaduddin, Islamic Procedure and Evidence, Mindanao Law Journal, Vol. 1, No. 1 (1986), pp. 39 40).

The _mudda'i_ or plaintiff, is a person, who if he should voluntarily relinquish his claim, cannot be compelled to prosecute it; and the _mudda'alai_ , or defendant, is a person who, if he should wish to avoid the litigation is compelled to sustain it (Ibid, citing Hedaya).

Q: Distinguish between _mudda'i_ and _mudda'alai_ as understood and contemplated in Islamic Rules on Procedure and evidence? (1987, 1993 Shari'a Bar)

**ANS:** The _mudda'i_ and _mudda'alai_ are the parties to an action before the Shari'a Courts which the Special Rules of Procedure translate to plaintiff and defendant, respectively. In Islamic procedural law, the terms "plaintiff" and "defendant" by which _mudda'i_ and _mudda'alai_ have been translated are misleading because the real _mudda'i_ is not necessarily the party who first brings the action before the court. (Alauya, pp. 39 40).

The _mudda'i_ or plaintiff, is a person, who if he should voluntarily relinquish his claim, cannot be compelled to prosecute it; and the _mudda'alai_ , or defendant, is a person who, if he should wish to avoid the litigation is compelled to sustain it ( _Ibid._ citing Hedaya).

Q: Define _mudda'i_ and _mudda'alai_. Who among the two has the burden of proof? In counterclaim, has _mudda'alai_ the burden of proof? Explain. (1983 Shari'a Bar)

**ANS:** The _mudda'i_ or plaintiff, is a person, who if he should voluntarily relinquish his claim, cannot be compelled to prosecute it; and the _mudda'alai_ , or defendant, is a person who, if he should wish to avoid the litigation is compelled to sustain it (Alauya, pp. 39 40 citing Hedaya).

The plaintiff ( _mudda'i_ ) has the burden of proof, and the taking of an oath ( _yamin_ ) rests upon the defendant ( _mudda'alai_ ). Ordinarily, the plaintiff who alleges his cause of action has the burden of proof or _onus probandi_ ; but if the defendant desires to offer defense, the party against whom judgment would be given on the pleadings and admission made, if no evidence was submitted, shall have the burden to prove his case. (Sec. 7(3), Special Rules)

When the defendant raises in the answer a counterclaim the burden of proof is on him with respect to such counterclaim and the taking of the oath rests with the plaintiff. His counterclaim partakes of the nature of a separate complaint or cause of action against the plaintiff. As such, he has ordinarily the burden of proof or _onus probandi_.

Q: In whose name must the action be prosecuted or defended?

**ANS:** Unless otherwise authorized by law or the Rules of Court, every action must be prosecuted or defended in the name of the real party in interest. (Sec. 2, Rule 3, Rules of Court as amended)

Q: Who is a real party in interest?

**ANS:** 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 ( _Ibid._ ; Rebollido vs CA, G.R. 81123, Feb. 28, 1989; Tanpingco vs. IAC, G.R. 76225, March 31, 1992). "Interest" within the meaning of the rule means material interest, an interest in issue to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest (Rebolido vs. CA, _supra_.).

Q: Classify and define parties.

**ANS:** Real parties in interest are classified and defined as follows:

a). _Indispensable parties_ are those without whom no final determination can be had of an action (Sec. 7, Rule 3, Rules of Court as amended; Bacar vs. Del Rosario, G.R. 51208, March 29, 1989).

b). _Necessary parties_ also known as "proper parties" are those who are not indispensable but who ought to be joined as parties if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claim subject of the action (Sec. 8, Rule 3, _Ibid._ ). They are those whose presence is necessary to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be made in their absence without affecting them (Quiombing vs. CA, G.R. 93010, Aug. 30, 1990).

c). _Representative party_ is one who may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or the Rules of Court and is allowed to prosecute or defend an action as representative or in a fiduciary capacity (Sec. 3, Rule 3, Rules of Court as amended).

d). _Pro forma parties_ are those who are required to be joined as co-party in suits by or against another party as may be provided by the applicable substantive or procedural rule (Regalado, Remedial Law Compendium, Vol. 1, 1997 ed., p. 78; Sec. 4, Rule 3).

e). _Quasi parties_ are those who are already represented in the suit, or who come within the compass of the proceedings _pendente lite_ (Menzi and Co. vs. Bastida, 63 Phil 30) or those in whose behalf a class or representative suit is brought (Sec. 12, Rule 3, Rules of Court as amended).

Q: Who may be parties to a civil action?

**ANS:** Only natural or juridical persons or entities authorized by law may be parties in a civil action (Sec. 1, _Ibid._ ).

Q: Under the Islamic Rules on Procedure, may a wife bring action in her behalf without joining her husband? Explain. (1993 Shari'a Bar)

**ANS:** Yes. Under Article 44 of Muslim Code, the wife may, independently of the husband, sue or be sued in the following cases: (a) when the litigation is between husband and wife; (b) if the suit concerns her exclusive property; (c) if the litigation is incidental to her profession, occupation or business; (d) if the litigation concerns the exclusive property of the husband, the administration of which has been transferred to her; or (e) such other appropriate cases as may be allowed by the general principles of Islamic law and other laws.

Q: How may a minor sue or be sued?

**ANS:** A minor or a person alleged to be incompetent, may sue or be sued, with the assistance of his father, mother, guardian, or if he has none, a guardian _ad litem_ (Sec. 5, _Ibid._ ).

Q: What is a class suit?

**ANS:** A class suit is an action where the subject matter of the controversy is of common or general interest to many persons who are so numerous that it is impracticable to join all as parties, and a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all (Sec. 12, _Ibid._ ).

Q: What are the requisites of class suit?

**ANS:** The requisites of a class suit are:

(1) The subject matter of the controversy is one of common or general interest to many persons;

(2) The parties affected are so numerous that it is impracticable to join all as parties; and

(3) The parties bringing the class suit are sufficiently numerous and representative of the class and have the legal capacity to file the suit.

Q: How may an unknown defendant be sued?

**ANS:** Whenever the identity or name of a defendant is unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the case may require. When his identity or true name is discovered, the pleading must be amended accordingly (Sec. 14, _Ibid._ ) to reflect such true name or identity.

Q: How may members of an entity without juridical personality be sued as defendants?

**ANS:** When two or more persons, not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed (Sec. 15, _Ibid._ ).

Q: How may an unwilling co plaintiff be brought to the action?

**ANS:** If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason thereof shall be stated in the complaint (Sec. 10, Rule 3, Rules of Court as amended).

Q: Who may be joined as parties?

**ANS:** All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in the Rules of Court, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest (Sec. 6, _Ibid._ ).

Q: State the rules on joinder of necessary parties.

**ANS:** Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants (Sec. 7, _Ibid._ ).

Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, _Ibid._ ).

Q: What is the effect of misjoinder or non-joinder of parties?

**ANS:** Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11, _Ibid._ )

Q: When may the plaintiff join persons as alternative defendants?

**ANS:** Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other. (Sec. 13, _Ibid._ ). Thus, it has been held that three corporations may be joined alternatively as defendants in an action for wrongfully occupying plaintiff's waterfront of the property, where plaintiff is uncertain which defendant corporation owned the vessels kept in the premises (I Moran p. 209 citing Zenith Bathini Pavillion vs. Fair Oaks S.S. Corp, 211 App. Div. 492, 207, N.Y.S. 306).

Q: How many copies of the complaint should the plaintiff prepare?

**ANS:** The complaint should be prepared in at least three (3) copies (Sec. 1, Special Rules). The original is intended for the records of the court, the second copy for the defendant, and the third for the file of the plaintiff. Where there are more than one defendant, the complaint should be prepared in as many copies as there are defendants plus two (2) copies.

Q: Who shall prepare and sign the complaint?

**ANS:** The complaint shall be prepared by the plaintiff ( _mudda'i_ ) or his counsel ( _wakil_ ) or by the clerk of court (Sec. 1, Special Rules). When the plaintiff is represented by an attorney of record, the complaint shall be signed by such attorney in his individual name, whose address shall be stated. Otherwise, the plaintiff shall sign his complaint even if the same has been prepared for him by the clerk of court. The latter can not sign the complaint because if he does so, he will then be acting as counsel ( _wakil_ ) which the law prohibits (see Sec. 36, PD 807).

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### Section 2. The Complaint

Q: What should the complaint contain? (1991, 1995 Shari'a Bar)

**ANS:** The complaint should contain:

1. The title of the case, the case number assigned to it, and the date of filing;

2. The name and address of the plaintiff ( _mudda'i_ ) and/or his counsel, and the name and address of the defendant ( _mudda'alai_ ); and

3. A concise statement of the cause of action and the relief prayed for (Sec. 2, Special Rules).

Q: Define complaint. (1991, 1997 Shari'a Bar)

**ANS:** A complaint is a pleading alleging the plaintiff's cause or causes of action. It is a kind of pleading which contains written allegations of the plaintiff of his claim submitted to the court for trial and judgment (Sec. 1, _Ibid._ ).

Q: May a complaint lodged before the Shari'ah Court be made orally? Explain. (1991, 1995, 1999 Shari'a Bar)

**ANS:** No. A complaint lodged before the Shari'a Court must follow certain formal requirements. Because a complaint is a kind of pleading, it must necessarily be in writing (Sec. 1, _Ibid._ ) otherwise, the court cannot and will not take cognizance thereof.

Q: What should be stated or alleged in a complaint? (1983, 1999 Shari'a Bar)

**ANS:** The complaint should state or allege the plaintiff's cause or causes of action. The names and residences of the plaintiff and the defendant must be stated in the complaint (Sec. 3, Rule 6, Rules of Court as amended; Sec. 2, Special Rules). It should contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the plaintiff relies for his claim omitting the statement of mere evidentiary facts (Sec. 1, Rule 8, Rules of Court as amended).

Q: Prepare a complaint for support. (1983 Shari'a Bar)

**ANS:** Complaint for support--

Republic of the Philippines

SECOND SHARI'A CIRCUIT COURT

Fourth Shari'a Judicial District

Marawi City

SITTIE FATIMAH G. GUBAT,

Plaintiff,

Civil Case No.____

\-- versus –

For: SUPPORT

MOHD. MARVIN M. GUBAT,

Defendant.

X- - - - - - - - - - - - -X

C O M P L A I N T

COMES NOW the plaintiff, by counsel, and unto this Honorable Court, most respectfully alleges:

1. That plaintiff is of legal age and a resident of Bambi Building, MSU Commercial Center, Marawi City, while defendant is also of age and a resident of Ilian, Marantao, Lanao del Sur;

2. That plaintiff is the lawfully wedded wife of the defendant, their marriage having been solemnized and consummated in accordance with Muslim law on April 03, 1995 by and before _Imam_ Merhussein Gani at MSU Campus, Marawi City. A photocopy of the marriage contract between them is hereto attached as Annex "A" and made as an integral part of this complaint;

3. That plaintiff and defendant, during the existence of their marriage, begot on December 15, 1995 a child, Sittie Nasriyyah;

4. That on September 27, 1996, defendant abandoned plaintiff and her minor child for another woman with whom he presently cohabits, without however divorcing plaintiff;

5. That since said date, defendant failed and refused and still fails and refuses to provide plaintiff and her child maintenance and support;

6. That defendant is presently employed as Administrative Officer of the City Prosecution Office, Department of Justice, Marawi City, with a monthly net salary of Eight thousand four hundred fifty nine pesos (P8,459.00) while plaintiff is without any means of livelihood and depends on charity of close relatives for the support of herself and her minor child;

7. That for the proper maintenance and support of plaintiff and her child, plaintiff needs a monthly allowance of Four thousand pesos (P4,000.00) which is amount is well within the financial resources of the defendant to provide.

WHEREFORE, it is most respectfully prayed of this Honorable Court that, after notice and hearing, judgment be rendered ordering defendant:

(1) to give plaintiff a monthly allowance of P4,000.00 payable in advance on or before the tenth day of the month;

(2) to give plaintiff, by way of support _pendente lite_ , a monthly allowance of P4,000.00, the first of which to start retroactively to the first day of this month, and the subsequent ones payable in advance on or before the tenth day of the succeeding month.

(3) to pay the costs of this suit.

Plaintiff further prays for such other reliefs deemed just and equitable under the premises.

03 April 1997, Marawi City, Philippines.

MOHD. MERHASSHAN G. GUBAT

Counsel for the Plaintiff

Officer's Line, Marawi City

IBP O.R. 0178129445 2/12/97

PTR NO. 09184902603 2/15/97

VERIFICATION AND CERTIFICATION

Republic of the Philippines)S.S.

C i t y o f M a r a w i)

SITTIE FATIMAH G. GUBAT, after having been sworn deposes and says: That she is the plaintiff in the above-entitled case; That she caused the preparation of the foregoing complaint; That she has read and understood its contents; That to her own knowledge the allegations thereof are true and correct; That she hereby certifies that she has not heretofore commenced any other action or proceeding involving the same issues before the Supreme Court, the Court of Appeals, or any other tribunal or agency, and to her own knowledge no such action or proceeding is pending before said courts; That should she learn hereafter that a similar action or proceeding has been filed or pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, she undertakes to report the same to this Honorable Court within five (5) days therefrom.

HEREUNTO set her hand this 03rd day of April 1997, at Marawi City, Philippines.

SITTIE FATIMAH G. GUBAT

Affiant

SUBSCRIBED and sworn to before me this __th day of April, 1997 at Marawi City, Philippines.

Notary Public

Q: What is the meaning of "ultimate facts"? (1997 Shari'a Bar)

**ANS:** The term "ultimate facts" are the important and substantial facts which either directly form the basis of the plaintiff's primary right and duty or directly make up the wrongful acts or omissions of the defendant (Alzua vs. Johnson, 21 Phil 309; E. Ganzon, Inc. vs. CA, G.R. 93696, June 17, 1992 [minute res.]). It means the essential facts constituting the plaintiff's cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient (I Moran p. 258).

Q: Distinguished ultimate facts from evidentiary facts.

**ANS:** The term "ultimate facts" are the important and substantial facts which either directly form the basis of the plaintiff's primary right and duty or directly make up the wrongful acts or omissions of the defendant (Alzua vs. Johnson, 21 Phil 309). On the other hand, evidentiary facts are those which go to prove the case. They may be essential at the trial, but not in the pleading of a cause of action ( _Ibid._ citing Corp. de PP. Augustinos Recoletos vs. Crisostomo, 32 Phil 427; Alzua vs. Johnson, 21 Phil 308).

Q: State the concept of cause of action.

**ANS:** A cause of action is an act or omission by which one party violates the right another (Sec. 2, Rule 2, Rules of Court as amended). Its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and an act or omission of the defendant in violation of said legal rights (I Moran p. 125 citing Ma ao Sugar Central Corp vs. Barrios, 79 Phil 666 and other cases; Mapa vs. Sandiganbayan, G.R. 86949, Oct. 15, 1991; Rebolido vs. CA, _supra_ ).

Q: Can a single cause of action be split? What is the effect of splitting a single cause of action? Give example.

**ANS:** No. A party may not institute more than one suit for a single cause of action (Sec. 3, Rule 2, Rules of Court). If two or more suits are instituted on the basis of the same cause or action, the filing of one or the judgment upon the merits in any one is available as a ground for the dismissal of the others (Sec. 4, _Ibid._ ).

Considering that a motion to dismiss is disallowed under the Special Rules, the splitting of a single cause of action may be raised in the answer as an affirmative defense.

Thus, if A obtained a loan from B secured by a mortgage on the former's building, the non payment by A of the loan constitutes single cause of action, and B cannot split it up into two separate complaints, one for the payment of the loan and another for the foreclosure of the mortgage. If B does so, the filing of the first complaint for payment of the loan will bar the subsequent complaint for foreclosure (Bachrach Motor Corp. vs. Icarangal, 68 Phil. 287).

Q: May a party join in one pleading several causes of action?

**ANS:** Yes. In the regular courts, a party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

(a) The party joining the causes of action shall comply with the rules on joinder of parties;

(b) The joinder shall not include special civil actions or actions governed by special rules;

(c) Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

(d) Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction (Sec. 5, Rule 2, Rules of Court as amended).

It is believed that, except paragraph (d) above, the foregoing rules apply in the Shari'a courts pursuant to the suppletory application of the Rules of Court.

Q: In case of joinder of several causes of action, in what court shall the action be filed? Give example.

**ANS:** In case of joinder of several causes of action, the action shall be filed in the Shari'a Circuit Court unless any of the causes joined falls within the jurisdiction of the Shari'a District Court and the venue lies therein, in which case it shall be filed in the latter court. ( _Ibid._ )

By way of example, if W, a divorced woman, has claims for support before the expiration of the prescribed _'idda_ and unpaid customary dower ( _mahr_ ) against her divorced husband, she may, in one complaint, plead both claims for support and unpaid dower against the husband. But if the causes of action are for support and custody over a minor child, the action should be filed with the Shari'a District Court which has jurisdiction over an action for custody arising under the Muslim Code (Art. 143(a), PD l083).

Q: What are the parts of a pleading? Explain each.

**ANS:** The parts of every pleading, including a complaint filed in the Shari'a courts, are laid down under Rule 7 of the Rules of Court. Accordingly, the complaint must contain a caption, body, signature and address, verification, and certification.

_Caption_. -- The caption sets forth the name of the court, the title of the action/case, and the docket number if assigned (Sec. 1, Rule 7, Rules of Court as amended). The date of filing as required by Section 2 of the Special Rules of Procedure may be shown by the date as appearing in the complaint when received by the court officer authorized to receive it for filing.

The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. The respective participation of the parties in the case shall be indicated (Sec. 1, _Ibid._ ).

_Body_ **.** \-- The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the pleading:

(a) _Paragraphs_. The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings (Sec. 2, _Ibid._ ).

(b) _Headings_. When two or more causes of action are joined, the statement of the first shall be prefaced by the words "first cause of action," of the second by "second cause of action", and so on for the others (Sec. 2, _Ibid._ ).

When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint they shall be prefaced by the words "answer to the first cause of action" or "answer to the second cause of action" and so on; and when one or more paragraphs of the answer are addressed to several causes of action they shall be prefaced by words to that effect ( _Ibid._ ).

(c) _Relief._ The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. ( _Ibid._ )

(d) _Date_. Every pleading shall be dated ( _Ibid._ ).

_Signature and address_. -- Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.

The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to disciplinary action (Sec. 3, _Ibid._ ).

_Verification_.-- A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on 'information and belief,' or 'upon knowledge, information and belief,' or lacks a proper verification, shall be treated as an unsigned pleading (Sec. 4, _Ibid._ , as amended by A.M. 00-2-10, Mar. 15, 2000).

_Certification_.-- The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed (Sec. 5, _Ibid._ ).

Q: Do all pleadings need verification? Give examples of pleadings that require verification.

**ANS:** Except when otherwise specifically provided by law or rule, pleadings need not be under oath, verified, or accompanied by affidavit.(Sec. 4, _Ibid._ ) Examples of pleadings that need verification are:

(1) petition for certiorari;

(2) petition for mandamus;

(3) petition for prohibition;

(4) petition for _habeas corpus_ ;

(5) petition for change of name; and

(6) petition for cancellation or correction of entries in the civil registry (see I Regalado pp. 99 100).

Q: What should be alleged in pleadings?

**ANS:** Generally, every pleading must contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts (Sec. 1, Rule 8, Rules of Court as amended).

If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated ( _Ibid._ ).

Q: May a party plead two or more statements of a claim or defense in the alternative? If yes, what is the effect of the insufficiency of one them?

**ANS:** Yes. A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements (Sec. 2, _Ibid._ ).

Q: How should conditions precedent be alleged?

**ANS:** In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient (Sec. 3, _Ibid._ ).

Q: How must a party's capacity to sue or be sued be alleged? How may a party raise an issue on the other party's capacity?

**ANS:** A party's legal capacity must be averred by facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader's knowledge (Sec. 4, _Ibid._ ).

Q: How may fraud, mistake, or condition of the mind be raised?

**ANS:** In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other condition of the mind of a person may be averred generally. (Sec. 5, _Ibid._ )

Q: How is a judgment or decision pleaded?

**ANS:** In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer it is sufficient to aver the judgment of decision without setting forth matter showing jurisdiction to render it (Sec. 6, _Ibid._ ).

Q: How do you allege an action or defense based on a document?

**ANS:** 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 as 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 (Sec. 7, _Ibid._ ).

Q: How are the genuineness and due execution of an actionable document contested? Explain.

**ANS:** When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section (Sec. 7, Rule 8, Rules of Court as amended), the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused (Sec. 8, _Ibid._ ; Yao Ka Sin Trading vs. CA, G.R. 53820, June 15, 1992).

Q: How is an official document or act pleaded?

**ANS:** In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law (Sec. 9, _Ibid._ ).

Q: How may pleadings be amended?

**ANS:** Amendment of pleadings, including a complaint, is regulated by Rule 10 of the Rules of Court as amended. As a general rule, pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner (Sec. 1, Rule 10, _Ibid._ ).

Q: When may a party amend his pleading as a matter of right?

**ANS:** A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served (Sec. 2, _Ibid._ ). Hence, the plaintiff may amend his complaint as a matter of right any time before the defendant files his answer to the complaint.

Q: When may pleadings be amended by leave of court?

**ANS:** Except when amendment is allowed as a matter of right under Section 2, Rule 10 of the Rules of Court as amended, substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard (Sec. 3, _Ibid._ ).

Amendments should be liberally allowed, but this liberality at the outset of the action decreases as the case moves to its termination. Besides, an application for leave to amend is ordinarily addressed to the sound discretion of the trial court and as a rule this discretion will not be disturbed on appeal except in case of an evident abuse thereof (Peneyra vs. IAC, G.R. 68935, Jan. 22, l990).

Q: What may be summarily corrected at any stage of the action?

**ANS:** A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Sec. 4, _Ibid._ ).

Q: How should amendments to a pleading be indicated?

**ANS:** Amendments to a pleading should be indicated in the amended pleading by appropriate marks, as by underscoring, enclosing them in quotation marks, putting them in capital letters, and so forth (I Regalado p. 112).

Q: Explain the effects of an amended pleading.

**ANS:** An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived (Sec. 8, Rule 10, Rules of Court as amended). However, the filing of the amended pleading does not retroact to the date of the filing of the original, hence, the statute of limitations runs until the filing of the amendment (Ruymann vs. Dir. of Lands, 34 Phil 429).

Q: What matters are subject of a supplemental pleading?

**ANS:** Transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented are the matters subject of a supplemental pleading (Sec. 6, Rule 10, Rules of Court as amended).

Q: May a party file a supplemental pleading?

**ANS:** Yes. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth such matters. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading ( _Ibid._ ).

Q: What is the effect of the filing of the supplemental pleading?

**ANS:** The filing of the supplemental pleading does not replace the original one. Supplemental pleadings are meant to supply deficiencies in aid of the original pleading, and not to dispense with the latter (Shoemart, Inc. vs. CA, G.R. 86956, Oct. 1, 1990).

Q: Distinguish supplemental pleading and amended pleading.

**ANS:** Supplemental pleading is distinguished from amended pleading as follows:

(a) Supplemental pleading refers to facts arising after the filing of the original pleading; while amended pleading refers to facts already existing at the time of the commencement of the action.

(b) Supplemental pleading is merely an addition to, but does not result in the withdrawal of, the original pleading; while an amended pleading results in the withdrawal of the original pleading.

(c) A supplemental pleading can only be made with leave of court; while an amended pleading can be made as of right, as when no responsive pleading has yet been filed (Sec. 2, Rule 10, Rules of Court as amended; see I Regalado p. 117).

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### Section 3. Service of Summons

Q: What is a summons? (1997, 1999 Shari'a Bar)

**ANS:** Summons is a writ by which the defendant is notified of the action brought against him (Dultra vs. CFI, 70 SCRA 469).

Q: By whom summons is issued and when?

**ANS:** Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants (Sec. 1, Rule 14, Rules of Court as amended).

Q: What is the purpose of the summons?

**ANS:** Service of summons is essential to the jurisdiction of the court. Jurisdiction over the person of the defendant in civil cases is acquired either by his voluntary appearance or by service of summons. The purpose of summons is to give notice to the defendant or respondent that an action has been commenced against him. The defendant or respondent is thus put on guard as to the demands of the plaintiff or petitioner (Paramount Ins. Corp. vs. Luna, G.R. 62404, Mar. l6, l987).

Q: What are the contents of the summons? (1997, 1999 Shari'a Bar)

**ANS:** The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain:

(a) The name of the court and the names of the parties to the action;

(b) A direction that the defendant answer within the time fixed by the rules; and

(c) A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. (Sec. 2, Rule 14, Rules of Court as amended)

Q: What should be attached to the summons?

**ANS:** A copy of the complaint and order for appointment of guardian _ad litem_ , if any, shall be attached to the original and each copy of the summons (Sec. 3, Rule 14, Rules of Court as amended; Sec. 3, Special Rules).

Q: Who may serve summons upon the defendant? (1997 Shari'a Bar)

**ANS:** The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons (Sec. 3, Rule l4, Rules of Court as amended).

Q: What are the modes of service of summons? Explain each.

**ANS:** The modes of service of summons are as follows:

(a) _Personal service_. -- The summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him (Sec. 6, Rule l4, _Ibid._ ).

(b) _Substituted service_. -- If, for justifiable causes, the defendant can not be served within a reasonable time by personal service, service may be effected (1) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (2) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof (Sec. 7, _Ibid._ ).

(c) _Publication_. -- In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order (Sec. l4, _Ibid._ ).

(d) _Extraterritorial service_. -- When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer (Sec. l5, _Ibid._ ).

When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be effected out of the Philippines as under the preceding paragraph (Sec. l6, _Ibid._ ).

Q: What is a newspaper of general circulation?

**ANS:** It is one which is published for the dissemination of local news and general information, has a _bona fide_ subscription list of subscribers, is published at regular intervals and is not published for or devoted to the interest of a particular group of persons (Basa vs. Mercado, 6l Phil 632).

Q: When may alias summons be issued?

**ANS:** If a summons is returned without being served on any or all of the defendants, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons (Sec. 5, Rule l4, Rules of Court as amended).

Q: Explain return of summons.

**ANS:** When the service has been completed, the server shall within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service (Sec. 4, _Ibid._ ).

If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service (Sec. 5, _Ibid._ ).

Q: How is summons served upon the following defendants?

a). upon entity without juridical personality;

b). prisoners;

c). minors or incompetents;

d). domestic private juridical entity;

e). foreign private juridical entities;

f). public corporations.

**ANS:** Summons is served upon an:

(a). _entity without juridical personality_. -- Service may be effected upon all of the defendants by serving summons upon any one of them, or upon the person in charge of the office or place of business maintained in the name by which they are generally or commonly known (Sec. 8, _Ibid._ ).

(b). _prisoner._ \-- Service shall be effected upon him by the officer having management of the jail or institution where he is confined who is deemed deputized as a special sheriff for said purpose (Sec. l9, _Ibid._ ).

(c) _minor and incompetent. --_ Service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian _ad litem_ whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother (Sec. l0, _Ibid._ ).

(d). _domestic private juridical entity. \---_ When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel (Sec. l1, _Ibid._ ).

(e). _foreign private juridical entity. \--_ When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (Sec. 12, _Ibid._ ).

If the foreign private juridical entity is not registered in the Philippines or has no resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means:

a) By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of Foreign Affairs;

b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant;

c) By facsimile or any recognized electronic means that could generate proof of service;

d) By such other means as the court may in its discretion direct (Sec. 12, Rule 14, _Ibid_. as amended by A.M. No. 11-3-6-SC, March 15, 2011).

(f). _public corporation. --_ When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; or in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct (Sec. l3, _Ibid._ ).

Q: How is service of summons proved?

**ANS:** When summons is served by personal service or substitute service, proof thereof shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec. 18, _Ibid._ ).

If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address (Sec. 19, _Ibid._ ).

Q: What is equivalent to service of summons?

**ANS:** The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance (Sec. 20, _Ibid._ ).

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### Section 4. Answer

Q: Define answer.

**ANS:** An answer is a pleading in which a defending party sets forth his defenses (Sec. 4, Rule 6, _Ibid._ ) which may be negative and/or affirmative defenses.

Q: What is a negative defense?

**ANS:** Negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action (Sec. 5(a), _Ibid._ ).

Q: What is an affirmative defense? Give examples.

**ANS:** An affirmative defense is an allegation of new matter which, while admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance (Sec. 5 (b), _Ibid._ ). If no motion to dismiss has been filed, any of the grounds for dismissal provided for under Rule 16 of the Rules of Court may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16, Rules of Court as amended).

Q: How is specific denial alleged? Explain.

**ANS:** A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial (Sec. 10, _Ibid._ ).

Q: What are the kinds of denial?

**ANS:** Based on Section 10, Rule 8 of the Rules of Court as amended, there are three kinds of denial, namely:

(a) _Absolute denial_ is a specific denial of a material allegation of fact and setting forth the substance of the matters relied upon to support the denial.

(b) _Qualified denial_ is a denial of only a part of the averment and admitting the remainder.

(c) _Plain denial_ is a denial where the pleader states that he has no knowledge or information sufficient to form a belief as to the truth of the averment.

Q: What is the period to file and serve answer?

**ANS:** The defendant's answer shall be filed with the court and served upon the plaintiff within ten (l0) days from receipt of the summons (Sec. 4, Special Rules). A motion for extension of time to file answer is not allowed by the Special Rules of Procedure (Sec. l3, _Ibid._ ). As defendant cannot be declared in default, it is believed that an answer filed beyond the reglementary period may still be admitted by the court, especially so that, under the Rules of Court as amended, the court may allow an answer or other pleading to be filed after the time fixed by such Rules (Sec. 11, Rule 11, Rules of Court as amended).

Q: When may a defendant file his answer or appear personally or by counsel from receipt of summons? (1991 Shari'a Bar) When may the defendant ( _mudda'alai_ ) file his answer to the complaint? (1987 Shari'a Bar)

**ANS:** The defendant shall file his answer, either personally or by counsel, or with the assistance of the clerk of court, within ten (l0) days from receipt of the summons (Sec. 4, _Ibid._ ).

Q: Who may prepare the answer?

**ANS:** The defendant's answer may be prepared by the defendant personally or by his counsel, or with the assistance of the clerk of court ( _Ibid._ ). However, where the plaintiff's complaint has been prepared by the clerk of court, it is believed that the latter should inhibit himself from assisting the defendant in preparing the answer.

Q: Can a counterclaim or cross-claim be raised in the answer?

**ANS:** Yes. The answer of the defending party may raise any claim or cross-claim which he may have against the opposing party or a co-party, (Secs. 6 & 8, Rule 6, Rules of Court) provided that the court has jurisdiction to entertain the claim and can, if the presence of third parties is essential for its adjudication, acquire jurisdiction over such parties.

Q: What is a counterclaim? Explain.

**ANS:** A counterclaim is any claim which a defending party may have against an opposing party (Sec. 6, _Ibid._ ).

Q: What is a cross-claim? Explain.

**ANS:** A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that a party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant (Sec. 7, _Ibid._ ).

Q: What are the kinds of counterclaim? Explain each.

**ANS:** Counterclaims are classified and defined as follows:

a. _Compulsory counterclaim_ is one which, being cognizable by the regular courts of justice, arises out of and is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, _Ibid._ : United Coconut Planter's Bank vs. IAC, G.R. 72664 65, March 20, l990; Javier vs. IAC, 31 March 1989) This also known as " _recoupment_ ". (Lopez vs. Gloria, 40 Phil 26).

b. _Permissive counter claim_ is one which does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. This is also known as " _set off_ ". (I Regalado p. 88 citing Lopez vs. Gloria, _supra_.)

Q: What is the effect of the failure to set up a counterclaim or cross-claim?

**ANS:** A compulsory counterclaim not set up shall be barred (Sec. 2, Rule 9, Rules of Court as amended). But when a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before judgment (Sec. 10, Rule 11, _Ibid._ ).

Q: Can new parties be brought by the defendant into the action?

**ANS:** Yes. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained (Sec. 12, Rule 6, Rules of Court as amended.). The general rule that a defendant cannot by counterclaim bring into the action any claim against persons other than the plaintiff admits of an exception under Sec. 12, Rule 6 of the Rules of Court which provides that "when the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained (Sapugay vs. CA, G.R. 86792, Mar. 21, 1990).

Q: Is a cross-claim compulsory or permissive? Explain.

**ANS:** A cross-claim is always compulsory as it must arise out of the transaction or occurrence that is the subject matter of either of the original action or of a counter claim therein (Sec. 8, Rule 6, Rules of Court as amended). When the cross-claim is not connected with such transaction or occurrence, it can not be raised in the pleading. Thus, the cross-claim must perforce be raised in the answer; otherwise it shall be barred (Sec. 2, Rule 9, _Ibid._ ).

Q: Must a counterclaim or cross-claim be answered? If yes, when?

**ANS:** Yes. When a pleading raises a counterclaim or cross-claim it must be answered within ten (l0) days from service (Sec. 4, Rule 11, Rules of Court). But a counterclaim or cross-claim need not be answered if it is based on and inseparable from the very defense raised by the opposing party as it will merely result in said opposing party pleading the same facts already raised in his former pleading (I Regalado p. 92 citing Navarro vs. Bello, 54 O.G. 6488).

Q: Suppose the answer raised affirmative defenses, must the plaintiff file a reply thereto? Why?

**ANS:** Not necessarily. When the defendant raises an affirmative defense or defenses, the plaintiff need not file a reply because it is disallowed by the Special Rules (Sec. 13). Nevertheless, all the new matters alleged in the answer constituting the affirmative defenses are deemed controverted (Sec. 10, Rule 6, Rules of Court as amended)

Q: What is the effect of the failure to specifically deny material averments in the complaint?

**ANS:** Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath (Sec. 11, Rule 8, Rules of Court).

Q: What is the effect of defenses and objections not pleaded?

**ANS:** Defenses and objections not pleaded either in a motion to dismiss 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 a prior judgment or by statute of limitations, the court shall dismiss the claim (Sec. 1, Rule 9, Rules of Court).

In the Shari'a courts, considering that a motion to dismiss is prohibited, defenses and objections which constitute grounds for a motion to dismiss should be pleaded in the answer as affirmative defenses (Sec. 6, Rule l6, _Ibid._ ) otherwise, they would be barred (Sec. 1, Rule 9, _Ibid._ ).

Q: Define: (a) filing; (b) service.

**ANS:** (a) _Filing_ is the act of presenting the pleading or other paper to the clerk of court (Sec. 2, Rule 13, _Ibid._ ).

(b) _Service_ is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side ( _Ibid._ ).

Q: How shall an answer be filed? Explain.

**ANS:** The filing of the answer shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of the answer, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing in court. The envelope shall be attached to the record of the case (Sec. 3, Rule 13, _Ibid._ ). A copy of the answer should be served upon the adverse party before the answer is filed with the court.

Parenthetically, the rules on filing and service of the answer apply to all other pleadings, appearances, motions, notices, orders, judgments and other papers ( _Ibid._ ).

Q: What papers are required to be filed and served?

**ANS:** Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon the parties affected (Sec. 4, _Ibid._ ).

Q: What are the modes of service? How are they made? Explain each.

**ANS:** Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail (Sec. 3, _Ibid._ ). Service of pleading may also be effected by substituted service (Sec. 6, _Ibid._ ).

a. _Personal service_. -- Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein (Sec. 6, _Ibid._ ).

b. _Service by mail_. -- Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (Sec. 7, _Ibid._ ).

c. _Substituted service_. -- If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery (Sec. 8, _Ibid._ ).

Q: When is service complete?

**ANS:** Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier (Sec. 10, _Ibid._ ). Service by substituted service is complete upon delivery to the clerk of court (Sec. 8, _Ibid._ ).

Q: Are there priorities in modes of service and filing of pleadings and other papers? Explain?

**ANS:** Yes. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. Any violation of this Rule may be cause to consider the paper as not filed (Sec. 11, _Ibid._ ).

Q: How shall filing of pleading be proved?

**ANS:** The filing of a pleading or other papers shall be proved by its existence in the record of the case. If it is not in the record but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered (Sec. 12, _Ibid._ ).

Q: What shall proof of service consist?

**ANS:** Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with Section 7 of Rule 13 of the Rules of Court. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee (Sec. 13, _Ibid._ ).

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### Section 5. Failure to Answer.

Q: What is the effect of the defendant's failure to file his answer within the reglementary period fixed by the Special Rules? (1987 Shari'a Bar) What would be the legal effect if the defendant fails to file an answer within ten (l0) days from service of the complaint on him? Reasons. (1993 Shari'a bar)

**ANS:** Should the defendant fail to file an answer to the complaint within ten (l0) days from service the court shall proceed to receive the evidence _ex parte_ upon which judgment shall be rendered (Section 5, Special Rules).

When the defendant fails to file and serve an answer within the reglementary period, he can not be declared in default either _motu proprio_ , or on motion of the plaintiff. The Special Rules prohibits the filing of a motion to declare defendant in default (Section 13, _Ibid._ ). Besides, in the Shari'a courts the defendant does not lose his personality in the action for failure to file an answer. He may, at any time, appear before judgment to protect his rights. This is one feature of Islamic procedure that keeps open the door for the defendant to participate in the proceedings before judgment is rendered against him (Rasul, Jainal, Commentaries on Special Rules of Procedure in Shari'a Courts, CLBPI, (l984), Quezon City, p. 50).

Q: If the defendant fails to answer or appear personally or by counsel within the reglementary period, is it necessary for the plaintiff or counsel to file a motion to declare defendant in default? Explain. (1991 Shari'a Bar)

**ANS:** No. It is not necessary for the plaintiff to file a motion to declare defendant in default because, if the defendant fails to answer the complaint within ten (l0) days from service of the summons, the court shall proceed to receive the evidence _ex parte_ upon which judgment shall be rendered (Sec. 5, Special Rules). Moreover, the motion to declare defendant in default is prohibited under the Special Rules (Section 13, _Ibid._ ).

Q: Upon the failure of the defendant to file his answer within the reglementary period fixed by the Special Rules, may the plaintiff ( _mudda'i_ ) under the same rules file the corresponding motion to declare defendant ( _mudda'alai_ ) in default? (1987 Shari'a Bar)

**ANS:** No. The plaintiff cannot file a motion to declare defendant in default because it is a prohibited under Section 13 of the Special Rules. Nevertheless, the court shall proceed to receive the evidence of the plaintiff _ex parte_ upon which judgment shall be rendered (Section 5, Special Rules).

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### Section 6. Pre-Trial

Q: Is the pre-trial hearing or conference under the Special Rules of the Shari'a Court mandatory or merely directory? And, when should it be held? (1991, 1999 Shari'a Bar)

**ANS:** The pre-trial conference is mandatory. In the absence of the pre-trial order issued after the conference and the statements of witnesses and other evidence submitted by the parties thereafter, the Shari'a Court cannot proceed with the formal trial or hearing nor determine the propriety of rendering judgment without formal trial. The statements of the witnesses are indispensable for purposes of determining the propriety of rendering judgment without formal trial or hearing. Should there be trial or hearing, such statements shall constitute the direct testimony of the witnesses as basis for cross-examination.

In the pre-trial conference, the court shall endeavor to secure an amicable settlement ( _sulkh_ ) of the parties and, if no such settlement can be arrived at, it shall clarify and define the issues in the case which shall be set forth in a pre-trial order. Such issues so clarified and defined shall serve as the bases for the submission to the court of the statements of witnesses ( _shuhud_ ) and other evidence ( _bayyina_ ).

The pre-trial conference shall be held not later than thirty (30) days after the answer is filed by the defendant (Sec. 6, Special Rules).

Q: What is the purpose of the pre-trial conference? What are the subject matters to be considered in the pre-trial hearing? (1991, 1999 Shari'a Bar)

**ANS:** The purpose of the pre-trial conference is two-fold: _firstly_ , to work out for an amicable settlement ( _sulkh_ ) of the action; and _secondly_ , if amicable settlement can not be arrived at, to define and clarify the issues in the case.

This notwithstanding it is believed that Section 2, Rule 18 of the Rules of Court, as amended, still applies. Hence, the following may also be considered during the pre-trial conference in order to expedite the disposition of the action, to wit:

(a) The possibility of a submission to alternative modes of dispute resolution;

(b) The necessity or desirability of amendment to the pleadings;

(b) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(c) Limitation of the number of witnesses; and

(d) The advisability of a preliminary reference of issues to a commissioner;

(e) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(f) The advisability or necessity of suspending the proceedings; and

(g) Such other matters as may aid in the prompt disposition of the action.

Q: What is the effect of the failure of a party to appear at the pre-trial conference?

**ANS:** Under Section 5, Rule 18 of the Rules of Court, as amended, the failure of the plaintiff when so required to appear in the pre-trial conference shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence _ex parte_ and the court to render judgment on the basis thereof. It is believed that this Rule applies to the Shari'a courts.

Q: What shall the court issue after the pre-trial?

**ANS:** Upon the termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions made by the parties as to any of the matters considered. Should the action proceed to trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall control the subsequent course of the action, unless modified before trial to prevent manifest injustice (Sec. 7, Rule 18, Rules of Court, as amended).

Q: Is it mandatory for the Shari'a Court to issue the pre-trial order? (1999 Shari'a Bar)

**ANS:** Yes, the issuance of the pre-trial order is mandatory. The pre-trial order, which defines and clarifies the issues, serves as the basis of the parties in preparing their respective memorandum and the submission of the statements of their witnesses and other evidence. In addition, the date of receipt of the pre-trial order is the reckoning point for the submission of the parties' memoranda and the statements of witnesses and other evidence.

Q: What pleadings/documents are to be submitted by the parties or through counsels to the Shari'ah Court within ten (10) days from receipt of the pre-trial order? (1991 Shari'a Bar)

**ANS:** Within ten (10) days from receipt of the pre-trial order, the parties or counsels shall forthwith submit to the court the statement of witnesses ( _shuhud_ ) and other evidence ( _bayyina_ ) pertinent to the issues so clarified and defined, together with the memoranda setting forth the law and the facts relied upon by them (Sec. 6(2), Special Rules).

Q: When shall the statement of witnesses ( _shuhud_ ) and other evidence ( _bayyina_ ) be submitted? Can the Shari'a court proceed with the trial proper prior to the submission of the statement of witnesses? Explain. (1983 Shari'a Bar)

**ANS:** The statement of witnesses ( _shuhud_ ) and other evidence ( _bayyina_ ) shall be submitted within ten (10) days from receipt of the pre-trial order clarifying and defining the issues (Section 6(2), Special Rules). The shari'a court cannot proceed with the trial proper prior to the submission of the statement of witnesses because such statement submitted by the parties at the pre-trial shall constitute the direct testimony of the witnesses as basis for cross-examination (Sec. 7(3), _Ibid._ ).

Moreover, trial proper is not indispensable. When, upon consideration of the pleadings, evidence and memoranda, the court finds that a judgment may be rendered without need of a formal hearing, the court may do so within fifteen (15) days from the submission of the case for decision (Sec. 6(3), _Ibid._ ).

Q: Explain the meaning of "other evidence".

**ANS:** Under the Section 6, of the Special Rules, it would seem that there are two (2) classes of evidence under Islamic law, _i.e._ , statements of witnesses and other evidence. On this basis, it follows that all other evidences not classified among the first are classified as other evidence ( _bayyina_ ) and it includes documentary and object evidences.

Yet, this is not at all the case. Under Islamic Procedural law, there are four ways of proving a cause of action or establishing facts as follows: (a) admission or confession ( _al_ _iqrar_ ); (2) testimonial evidence ( _shuhud_ ); (3) oath ( _yamin_ ); and (4) other evidence ( _bayyina_ ) (Alauya, _op. cit._ p. 44). In fact, some jurists consider circumstantial evidence _(qara'in)_ as an acceptable means of proof in the absence of others (El Awa Mohammad S., Punishment in Islamic Law, American Trust Publications (Indianapolis), l982, p. l30). But circumstantial evidence will only be acted upon if it is of a conclusive nature _(qatia'tun)_ (Rahim, Abdul, Principles of Muhammadan Jurisprudence, Indus Publishers, (Lahore), 1911, p. 38l).

Q: May the Shari'ah Court immediately decide the case and render judgment without a formal hearing on the basis of the pleadings, evidence and memoranda submitted in the pre-trial? Explain. (1991 Shari'a Bar)

**ANS:** Yes. Should the court find, upon consideration of the pleadings, evidence and memoranda, that a judgment may be rendered without need of a formal hearing, the court may do so within fifteen (l5) days from the submission of the case for decision (Sec. 6(3), Special Rules). Otherwise, it shall conduct a formal trial or hearing.

Q: Within what period shall the court render judgment when it finds, upon consideration of the pleadings, evidence and memoranda, that it can render such judgment?

**ANS:** Judgment shall be rendered by the Shari'a court within fifteen (l5) days from the submission of the case for decision. The question is when shall the case be deemed submitted for decision?

Under the Constitution, a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself (Sec. l5(2), Art. VIII). Hence, it is believed that judgment shall be rendered within fifteen (l5) days from the filing of the memoranda of the parties together with the statements of witnesses ( _shuhud_ ) and other evidence ( _bayyina_ ).

Q: Is the prescribed period for rendition of decision mandatory?

**ANS:** In a case involving the Rule on Summary Procedure which prescribes a 30-day period within which to render judgment, the Supreme Court described the procedural requirement as directory though it subjects the defaulting judge to administrative sanction for failure to observe the rule (Enriquez vs. Camarista, A.M. No. MTJ-97-1123, Oct. 2, 1997 citing Cruz vs. Pascual, 244 SCRA 111 [1995]).

In another case, the high court said:

"The Rule on Summary Procedure was precisely enacted to achieve an expeditious and inexpensive determination of cases. Hence, Section 17 requires that judgment in the case must be rendered within thirty (30) days from the termination of the trial. While the procedural requirement is directory it subjects the defaulting judge to administrative sanction for is failure to observe the rule. But the decision rendered beyond the period is valid." (Cruz vs. Pascual, 244 SCRA 111 [1995]).

By parity of reasoning, these jurisprudential rulings should likewise be made applicable to the Shari'a courts. As such, the 15-day period should be deemed directory though it subjects the defaulting judge to administrative sanction for failure to observe the rule.

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### Section 7. Hearing or Trial

Q: Who has the burden of proof and who may take the oath ( _yamin_ )?

**ANS:** The plaintiff ( _mudda'i_ ) has the burden of proof, and the taking of an oath ( _yamin_ ) rests upon the defendant ( _mudda'alai_ ). If the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the court. Should the defendant refuse to take an oath, the plaintiff shall affirm his claim under oath in which case judgment shall be rendered in his favor. Should the plaintiff refuse to affirm his claim under oath, the case shall be dismissed (Section 7, Special Rules).

Ordinarily, the plaintiff who alleges his cause of action has the burden of proof or _onus probandi_ ; but if the defendant desires to offer defense, the party against whom judgment would be given on the pleadings and admission made, if no evidence was submitted, shall have the burden to prove his case (Sec. 7(3), Special Rules). Moreover, when the defendant raises in the answer a counterclaim or cross-claim, the burden of proof lies on him only with respect to such counterclaim or cross-claim.

Q: What is the concept of oath under Islamic law?

**ANS:** An oath is an invocation of the name of God or of some person or object held sacred by the person using the invocation, to witness the truth of a solemn affirmation and to emphasize that affirmation (Ali, Yusuf, The Holy Qur'an: Text, Translation and Commentary, Amana Corp. (Maryland), l983, p. l784).

It refers to one of the methods of proving an allegation and should not be confused with the so called procedural oath which is required of a witness before taking the witness stand "to tell the truth and nothing but the whole truth." Neither does it refer to an oath administered to the witness by the judge saying "I will accept your evidence, if you swear to its truth, if not, I will not accept it" upon demand of the person against whom the testimonial evidence is given (Art. l727, The Mejelle (as translated by C.R. Tyser, et al.), a complete code on Islamic Civil Law).

Q: Explain the meaning of "the burden of proof is on the plaintiff and oath is incumbent on him who denies." (1983 Shari'a Bar)

**ANS:** The Hadith of Prophet Muhammad (s.a.w.) offers the rule that "[E]vidence is incumbent on the part of the claimant ( _mudda'i_ ) and an oath ( _yamin_ ) is on the part of one who denies." This means that the plaintiff ( _mudda'i_ ) has the burden of proof, and the taking of an oath ( _yamin_ ) rests upon the defendant ( _mudda'alai_ ). Ordinarily, the plaintiff who alleges his cause of action has the burden of proof or _onus probandi_ ; but if the defendant desires to offer defense, the party against whom judgment would be given on the pleadings and admission made, if no evidence was submitted, shall have the burden to prove his case (Sec. 7(3), Special Rules). Moreover, when the defendant raises in the answer a counterclaim or cross-claim, the burden of proof lies on him only with respect to such counterclaim or cross-claim.

Q: What do you understand by "burden of proof" as distinguished from "burden of evidence? (1987 Shari'a Bar)

**ANS:** By the "burden of proof" or " _onus probandi_ " is meant the obligation imposed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action, to establish its proof (5 Martin 435 citing Jones on Evidence, 2nd ed. 855). It is the obligation imposed by law on a party to the litigation to persuade the court that he is entitled to relief. If no evidence is presented on a particular issue, the party having the burden of proof as to that issue will lose the litigation ( _Ibid._ , citing Gilbert Law Summaries on Evidence, p. 73).

"Burden of evidence", on the other hand, is defined as "that logical necessity which rests on a party at any particular time during a trial to create a _prima facie_ case in his own favor, or to overthrow one when created against him. The burden of evidence is determined by the progress of the trial, and shifts to one party when the other party has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor ( _Ibid._ citing 2 Jones on Evidence, 2nd ed. 855).

Q: In one case, plaintiff filed his complaint and defendant filed his answer with counterclaims. In the course of the proceedings, the shari'a trial court ordered the defendant to take an oath ( _yamin_ ), but he refused ( _nukul_ ). Thereafter, the shari'a trial court ordered the plaintiff to affirm his claim under oath, but he also refused ( _nukul_ ). Under this setting, can the shari'a court validly dismiss the case despite the defendant's counterclaims? Will the defendant be barred from recovering his counterclaims merely because he refused to take an oath ( _yamin_ )? Explain. (1983 Shari'a Bar)

**ANS:** No, the shari'a court cannot validly dismiss the case unless the counterclaims of the defendant can remain pending for independent adjudication. The defendant will not be barred from recovering his counterclaims merely because he refused to take an oath. Such defendant's refusal applies only to plaintiff's claim and does not operate against his counterclaims which he may prove by evidence. If he has no evidence to prove his counterclaims, the burden of proof will be shifted to the plaintiff who may then take an oath ( _yamin_ ).

The counterclaims can remain pending for independent adjudication if they do not arise out of, nor are they necessarily connected with, the subject matter of the plaintiff's claim. In such a case, the main case may be dismissed and the court may proceed with the counterclaims for independent adjudication on the merits.

Q: Who is a party required to take an oath under Shari'ah procedure? (1993 Shari'a Bar)

**ANS:** It depends. Ordinarily, the plaintiff ( _mudda'i_ ) has the burden of proof, and the taking of an oath ( _yamin_ ) rests upon the defendant ( _mudda'alai_ ). If the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the court. Should the defendant refuse to take an oath, the plaintiff shall affirm his claim under oath in which case judgment shall be rendered in his favor (Sec. 7, Special Rules).

Q: May a non-Muslim be required to take an oath under the Special Rules on Procedure in the Shari'ah courts? (1993 Shari'a Bar)

**ANS:** No. Section 14 of the Special Rules states that "[A]n oath ( _yamin_ ) legally binding in a manner and form observed under Muslim Law may, by order of the court, be administered upon any of the parties who are Muslims to establish a fact, or to affirm any evidence presented" and "[N]o person shall be allowed to take an oath unless he is qualified under Muslim law and is fully aware of the solemnity of the oath or the import of the solemn affirmation."

Q: What is the form of the oath that a party may take?

**ANS:** There is no hard and fast rule as to the form of the decisive oath that a party may take. In _Tampar vs. Usman, G.R. 82077. August l6, 1991,_ the defendant who was challenged by the plaintiff who lacks evidence to take the oath ( _yamin_ ) took the oath in the following form:

"I, Esmael Usman, swear in the name of Allah, Most Gracious, Most Merciful and upon the Holy Qur'an, that I bought the land in question from the plaintiffs; that I have not forged or falsified the signatures of the plaintiffs; and that God will curse me if I am not telling the truth".

It must be noted that the invocation of the name of God is essential for the validity of the oath.

Q: Who may administer the oath to any of the parties?

**ANS:** An oath may be administered upon any of the parties who are Muslims by order of the court (Sec. l3 (a), Special Rules). The court may order any competent Muslim, preferably an _Imam_ , (religious leader) to administer the oath upon the parties. In any case, the oath should be administered in the presence of the judge or his representative (The Mejelle, _op. cit._ , p. 307). The refusal of the oath in the presence of another person is not considered. If upon the demand of his opponent immediately, without the oath being offered by the judge, the defendant takes the oath, it is not considered good. The oath must be administered by the judge again (Arts. l744 & l747, _Ibid._ ).

Q: At the scheduled hearing, the plaintiff failed to present witnesses and to adduce evidence in court. The shari'a court judge administered the oath ( _yamin_ ) to defendant. Before the rendition of judgment, plaintiff petitioned the court that he be allowed to present his evidence to prove his case. If you were the shari'a judge, will you grant his motion? What is the effect of the oath ( _yamin_ ) administered to defendant? Explain. (1983 Shari'a Bar)

**ANS:** If I were the judge, I would deny the motion of plaintiff. Section 7 of the Special Rules of Procedure Governing the Shari'a Courts provides, in part, that "[I]f the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the court."

The failure of the plaintiff to present witnesses and to adduce evidence at the scheduled hearing may be considered as equivalent to lack of evidence on his part. Consequently, the administration of oath ( _yamin_ ) to defendant is in accordance with the rules and judgment may be rendered in favor of the defendant.

When an oath is administered upon a party by order of the court, such oath constitutes as proof of fact in the absence of any other evidence (Sec. 14, Special Rules). The administration of the oath ( _yamin_ ) to the defendant has the effect of proof of the inexistence of plaintiff's claim and entitles him to a favorable judgment.

Q: "A" has a claim ( _da'wa_ ) against "B" in the amount of P1,000.00. "B" denies the claim and interposes the defense that the debt has already been settled and that "A" instead owes him P2,000.00. During the trial, "A" offers two witnesses, "C" and "D". Witness "C" attested the claim of "A" in the sum of P1,000.00; while witness "D" testified that "B" owes "A" P1,500.00. If "B" does not have any evidence to substantiate his counterclaim which "A" denies, how would you proceed to finally resolve the case in accordance with the Special Rules on Procedure in the Shari'ah courts? (1993 Shari'a Bar)

**ANS:** I would proceed to resolve the case as follows:

I would dismiss the claim of "A" against "B". The testimony of witnesses "C" and "D" should be rejected because they did not correspond with each other. The Muslim law on evidence provides that if there is a conflict of testimony among the witnesses of the claimant such evidence will be rejected (Rahim, Abdul, Muhammadan Jurisprudence, Sunbeam Commercial Art Press, Lahore, 1911, p. 405). The testimony of witness "C" alone cannot be appreciated to sustain A's claim, because it is short of the two (2) witnesses required by law which provides that claims belonging to the category of rights of men are not established except by the testimony of two (2) male or one (1) male and two (2) female witnesses (Rahim, _Ibid._ ).

As regards "B's" counterclaim, "B" has the burden of proof and the taking of the oath rests with "A". If "B" has no evidence to substantiate his claim, the court may require "A" to take the oath in which case judgment shall be rendered in "A's" favor. Should "A" refuse to take an oath, then "B" shall affirm his claim under oath in which case judgment shall be rendered in his favor. Should "B" refuse to affirm his claim under oath, the case shall be dismissed (Sec. 7, Special Rules).

Q: May a judgment be rendered without trial if the defendant admits the claim?

**ANS:** Yes. If the defendant admits the claim of the plaintiff, judgment shall be rendered in his favor by the court without further receiving evidence (Sec. 7, Special Rules).

Q: What is meant by _iqrar_ (admission)? Explain its probative value.

**ANS:** The term _iqrar_ means admission or confession (Alauya, _op. cit._ , p. 44; El Awa, _op. cit._ , p. l2l7). It also means acknowledgment (Rahim,p. 405).

_Iqrar_ is for someone to admit the right of another against himself (The Mejelle, _op. cit._ , Art. l572, p. 263). In civil cases, it is the strongest evidence to prove a cause of action (Alauya, p. 44) and in criminal cases, it is an alternative proof for the establishment of guilt (El Awa, _op. cit._ ).

Q: Compare the concept of admission in civil law and in Islamic law.

**ANS:** Admission, in the law of evidence, has been defined as a voluntary acknowledgment, confession, or assent of the existence of the truth of certain facts by a party to the action (5 Martin p. 208, citing the Chamberlayne Trial Evidence, p. 440). It is a statement by a party or someone identified with him in legal interest of the existence of fact which is relevant to the cause of his adversary ( _Ibid._ citing 3l C.J.S. l022).

In Islamic law, when a man testifies against himself in support of a claim made against him, it is called admission (Rahim, _supra_ , p. 376). The Court generally accepts an admission without requiring any further proof from the claimant. An admission must, however, be unconditional, and it must be voluntary, so that if obtained by coercion it is not binding nor if made in jest. Similarly, if the fact admitted is contradicted by apparent and obvious circumstances of the person making the admission, it will not be accepted ( _Ibid._ , p. 382).

Q: What are the classifications of admission?

**ANS:** In civil law, admissions are generally divided into two classes:

(a). _Judicial_ , or those made on the record, or in connection with the judicial proceedings in which it is offered;

(b). _Extrajudicial_ , or those made elsewhere, irrespective of time, place, or to whom made (The Chamberlayne Trial Evidence, p. 442 cited in 5 Martin p. 208 and Apostol, Essentials of Evidence, p. l47).

Q: What class of admission on the basis of which the Shari'a court may render evidence without receiving evidence? Explain.

**ANS:** The kind of admission contemplated in Section 7 (2) of the Special Rules that would enable the court to render judgment without further receiving evidence is judicial admission. A judicial admission by a party forecloses the matter admitted from further debate, and concludes it against the party as though there has been a peremptory judicial ruling to that effect. It is in this wise that makes admission or confession the strongest evidence to prove a cause.

An extrajudicial admission, whether express or implied, made by a party does not conclude the matter as against such party, but is merely evidence which has to be introduced in the trial by testimony.

Q: What is the effect of judicial admission?

**ANS:** If the defendant admits the claim of the plaintiff, judgment shall be rendered in his (plaintiff) favor by the court without further receiving evidence (Sec. 7(2), Special Rules).

Q: Within what period should the court render judgment after the defendant admits the claim of the plaintiff?

**ANS:** The judgment should be rendered within fifteen (l5) days from the disposition of the case. As to the meaning of the term "disposition of the case", the Special Rules does not specify. Considering that the admission is made during the hearing or trial, it is believed that the fifteen day period should be reckoned from the day the admission is made.

Q: Who has the burden of proof in case the defendant desires to offer defense? Explain.

**ANS:** If the defendant desires to offer defense, the party against whom judgment would be given on the pleadings and admission made, if no evidence was submitted, shall have the burden to prove his case (Section 7(3) Special Rules). In other words, the plaintiff, or the party suing, is not necessarily the person who has the burden of proof or _onus probandi_. It is a matter for the judge on the basis of the pleadings and admission made to determine who has the burden of proof (Alauya, _op. cit._ ).

When the plaintiff has evidence to prove his claim, and the defendant desires to offer defense, trial on the merits becomes necessary. The parties then will prove their respective claims and defenses by the introduction of testimonial ( _shuhud_ ) and other evidence ( _bayyina_ ). The statements of witnesses submitted at the pre-trial by the parties shall constitute the direct testimony as the basis for cross-examination.

Q: When the judge sets the case for hearing, who may be called to testify at such hearing? (1991 Shari'a Bar)

**ANS:** Only witnesses whose statements were submitted at the pre-trial may be allowed to testify in the formal trial or hearing. Their statements shall constitute their direct testimony as basis for cross-examination (Sec. 7(3), Special Rules).

Where a witness whose statement was submitted at the pre-trial can not be presented in court for cross-examination, his statement shall be inadmissible. A sworn statement is not admissible in evidence where affiant was not presented in court and there was absence of opportunity by the adverse party to cross-examine affiant (People vs. Pansuelo, 105 SCRA 226).

Q: May a party testify in court in support of his claim against the defendant?

**ANS:** No. Under Islamic law, a person cannot be both a party and a witness (The Mejelle, Art. l703, _op. cit._ , p. 298). One of the conditions relating to the capacity of a witness which the law insists upon in order to prevent men from telling falsehoods is freedom from bias and prejudice; hence, testimony of the father is not admitted in favor of the son and vice versa, of a slave in favour of his master, or parties in support of their own case, of a person who bears a grudge against the opposite party, of a non-Muslim against a Muslim and so on (Rahim, pp. 376 377).

Q: Define trial and explain its order. Distinguish it from pre-trial. (1983 Shari'a Bar)

**ANS:** Trial is the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue (U. S vs. Raymundo, 14 Phil 439; Moreno, Phil Law Dictionary). It is also defined as the period for the introduction of evidence by both parties (Asana vs. Tiu, SP-00432, November 12, 1971).

Order of trial is the sequence parties introduce their respective evidence.

_First,_ the plaintiff ( _mudda'i_ ) must produce evidence on his part; if he has no evidence, the burden of proof is shifted to the defendant who may take the oath and judgment shall be rendered in his favor. Should the defendant refuse to take the oath, the plaintiff must affirm his claim under oath in which case judgment shall be in favor of the plaintiff. Should the plaintiff refuse to affirm his claim under oath, the case shall be dismissed (Sec. 7(l), Special Rules).

_Second,_ if after the introduction of plaintiff's evidence, or even before it, the defendant admits the claim in open court judgment shall be rendered in favor of the plaintiff without receiving further evidence (Sec. 7(2), _Ibid._ ).

_Third,_ if the defendant does not admit the claim and desires to offer defense, the party against whom judgment would be given on the pleadings and admission made, if no evidence was submitted, shall have the burden to prove his case (Sec. 7(3), _Ibid._ ). The plaintiff, who has ordinarily the burden of proof, having adduced evidence on his part, the defendant may also introduce evidence in support of his defense, counterclaim and cross-claim. The parties against whom any counterclaim or cross-claim has been pleaded, shall introduce evidence in support of their defense, in the order to be prescribed by the court (Sec. l (e), Rule 30, Rules of Court) unless they admit the claim of the counterclaimant or cross-claimant.

There is, however, a problem on whether the parties are allowed to present rebutting evidence considering that such rebutting evidence is not contained in the statements of witnesses submitted at the pre-trial.

Trial is distinguished from pre-trial in that the latter is a proceeding before the formal trial or hearing with the two-fold purpose, under the Special Rules of Procedure, of: _firstly_ , working out for an amicable settlement of the action; and _secondly_ , if amicable settlement can not be arrived at, defining and clarifying the issues in the case (Sec. 6(1), Special Rules).

Q: What is meant by order of examination?

**ANS:** When the action is put on trial on the merits because the party litigants offer to prove their respective claims and defenses, the order of examination comes in. Each witness of the parties shall be examined in the following order:

(a) Direct examination by the proponent (the statement of the witness submitted at the pre-trial shall serve as his direct testimony);

(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent.

Q: Distinguish order of examination and order of trial.

**ANS:** Order of examination is the sequence an individual witness is examined by the contending parties; whereas, order of trial is the sequence parties introduce their respective evidence.

Q: During the trial, may the parties agree upon the facts involved in the litigation?

**ANS:** The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the case for judgment upon the facts agreed upon, without the introduction of evidence. If the parties can agree only on some of the facts in issue, the trial shall be held as to the disputed facts in such order as the court shall prescribe (Sec. 6, Rule 30, Rules of Court, as amended).

Q: When may the court order a consolidation or severance of the action?

**ANS:** When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay (Sec. l, Rule 3l, _Ibid._ ).

The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues (Sec. 2, _Ibid._ ).

Q: In a case, an "Extrajudicial Settlement of Estate with Simultaneous Sale', purportedly entered and executed on June ll, l947 between petitioners and respondent Usman whereby ownership of the land was conveyed to the latter for the sum of Pl,000.00, was sought to be annulled on the ground that petitioners have never entered into such agreement and that their signatures in the document of sale were forged.

Respondent, on the other hand, denied having forged the signatures of the petitioners, and controverted all the other claims made by the petitioners. The pre-trial conference having failed to reach an amicable settlement, the Shari'a District Court thereafter directed the parties to submit the statements of at least two witnesses to prove their claims. The sole witness of petitioners withdrew, prompting them to manifest to the Court that they have no witnesses. Consequently, petitioners challenged Usman to take an oath _(yamin)_ declaring that there is no truth to the claim of forgery brought against him.

The challenge which was grounded on Section 7 of the Special Rules was opposed by respondent Usman. The Court overruled the opposition and directed respondent Usman to take the oath which he complied with after his motion for reconsideration was denied. Having thus taken the oath, judgment was rendered in favor of respondents and the complaint against them was dismissed.

Petitioners assail the decision of the Shari'a court as having been rendered with grave abuse of discretion contending that the cognizance by the court of the " _yamin_ " of respondent Usman is not only "unprocedural", but likewise amounts to a deprivation of their constitutional right to be heard. Is the contention of petitioners tenable? Explain.

**ANS:** In the case of _Midsapak Tampar, et. al., vs. Esmael Usman_ , the Supreme Court ruled:

"Under Section 1, Rule 131 of the Rules of Court of the Philippines, which may apply in a suppletory manner in this case, each party must prove his own affirmative allegations. When the plaintiffs (petitioners herein) failed to adduce any evidence to support the complaint, then the complaint must be dismissed. On this basis the dismissal of the complaint by the Shari'a court in this case should be upheld, but not because of the " _yamin_ " taken by respondent Usman.

"The Court shares the concern of petitioners in the use of the " _yamin_ " in this proceeding, and for that matter, before Philippine Shari'a courts. Section 7 of the Special Rules of Procedure prescribed for Shari'a courts aforecited provides that if the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the Court. On the other hand, should defendant refuse to take an oath, plaintiff may affirm his claim under oath, in which case judgment shall be rendered in his favor.

"Said provision effectively deprives a litigant of his constitutional right to due process. It denies a party his right to confront the witness against him and to cross-examine them.(Sec. 6, Rule l32, Rules of Court).It should have no place even in the Special Rules of Procedure of the Shari'a Courts of the country.

"The possible deletion of this provision from the said rules should be considered. For this purpose, a committee should be constituted by the Court to review the said special rules, including the above discussed provision so that appropriate amendments thereof may be undertaken by the Court thereafter" (Midsapak Tampar, _et. al._ , vs. Esmael Usman, _et. al._ , G.R. 82077, August l6, 1991).

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### Section 8 \- Judgment

Q: Define judgment.

**ANS:** A judgment is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding (Gotamco vs. Shan Seng, 46 Phil. 550). It is the entire document prepared and promulgated by the court adjudicating and determining the rights of the parties to the case. It contains the findings of fact and law, the reasons and evidence to support such findings as well as the discussion of issues leading up to its determination (I Regalado p. 234).

Q: Who shall prepare the judgment of the Shari'a court and in what form shall it be prepared?

**ANS:** A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of court (Sec. l, Rule 36, Rules of Court, as amended). No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based (Sec. l4, Art. VIII, Constitution).

Q: Within what period must the Shari'a court render judgment in a case brought before it?

**ANS:** The judgment shall be rendered within fifteen (l5) days from the termination of the trial, or disposition of the case, should there be no formal trial or hearing (Sec. 8, Special Rules).

Q: When may the court render judgment from the termination or submission of the case for decision? (1999 Shari'a Bar)

**ANS:** The court may render its judgment within fifteen (15) days from termination of the trial, or submission of the case for decision.

Q: How shall final orders or judgments be served upon the parties? Explain.

**ANS:** Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party (Sec. 9, Rule 13, Rules of Court, as amended).

Service of the judgment, final orders or resolutions shall be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein (Sec. 6, _Ibid._ ).

Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail (Sec. 7, _Ibid._ ).

Q: What are the special forms of judgment?

**ANS:** Under the Rules of Court and jurisprudence, the special forms of judgment are as follows:

(a). _Judgment by default_ is a judgment rendered against the defendant for his failure to appear at the pre-trial conference, or to answer to the complaint within the time fixed by the rules (Sec. 3, Rule 9 and Sec. 5, Rule 18, Rules of Court, as amended; see Veluz vs. Justice of the Peace, 42 Phil. 560; Mapua vs. Mendoza, 45 Phil 424). In the Shari'a courts, the defendant who did not either file an answer or appear in the pre-trial conference cannot be declared in default because the filing of a motion to declare him in default is prohibited. Be that as it may, it is believed that any judgment made by the Shari'a court _ex parte_ pursuant to Section 5 of the Special Rules partakes of a default judgment.

(b). _Judgment on the pleading_ is a judgment rendered in favor of party to an action, on motion therefor, where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleadings (Sec. l, Rule 34, Rules of Court, as amended).

(c). _Summary judgment_ is that which a court may, after the pleading in answer to a party's claim, counterclaim, or cross-claim or declaratory relief has been served, render on motion of a party with supporting affidavits, depositions or admissions (Sec. 1 & 2, Rule 35, _Ibid._ ; Tanteo vs. Tanteo, 38943 R, Nov. 20, l972).

(d). _Several judgment_ is a judgment which a court may render, in an action against several defendants, against one or more of them, leaving the action to proceed against the others (Sec. 4, Rule 36, Rules of Court, as amended).

(e). _Separate judgment_ is a judgment which a court may render, in an action where more than one claim for relief is presented, disposing of a particular claim upon a determination of the issues material to such claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim (Sec. 5, _Ibid._ ).

(f). _Special judgment_ is a judgment which requires the performance of any other act than the payment of money, or the sale or delivery of real or personal property (Sec. 11, Rule 39, _Ibid._ ; Moslem vs. Soriano, l24 SCRA l94).

(g). _Judgment for specific acts_ is a judgment which directs a party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or to perform any other specific act (Sec. l0, _Ibid._ ).

(h). _Memorandum judgment_ is a judgment or final resolution of a court in an appealed case adopting by reference the findings of fact and conclusions of law contained in the decision or final order appealed from (Sec. 24, Interim Rules; Francisco vs. Permskal, May l2, l989).

(i). _Judgment on consent_ is one the provisions and terms of which are settled and agreed upon by the parties to the action, and which is entered in the record by the consent and sanction of the court (Republic vs. Bisaya Land Trans. Co., L 3l490, Jan. 6, l978; 8l SCRA 19).

(j). _Judgment nunc pro tunc_ is rendered to enter or record such judgment as had been formerly rendered but has not been entered as thus rendered (Henderson vs. Tan, L 3233, Oct. l0, l950; Lichauco vs. Tan Pho, 5l Phil. 862).

(k). _Judgment upon confession_ is a judgment rendered by a court based on the affirmative and voluntary act of the defendant admitting the claim against him, or confessing to his guilt.

(l). _Judgment upon compromise_ is one rendered by a court based on the agreement of the parties, by making reciprocal concessions, to avoid a litigation or put an end to one already commenced.

(m). _Clarificatory judgment_ is one which clarifies a vague or ambiguous judgment.

Q: When does a judgment become final and executory? (1987 Shari'a Bar)

**ANS:** The judgment becomes final and executory upon the expiration of the fifteen day period for appeal; (Section 8(2), Special Rules) such period shall be counted from the date of receipt of the judgment.

Q: Define writ of execution.

**ANS:** It is a judicial process to enforce payment, satisfaction or performance of a final judgment against the defeated party in a case (Revelations Mfg. Corp. vs. Magsino, Sp 03878, Jan. 24, 1985).

Q: May the Shari'a court _motu proprio_ issue the writ of execution? Upon the expiration of the period to appeal, which should be made within fifteen (15) days from receipt of judgment, may the court _motu proprio_ issue the writ of execution for the satisfaction of judgment? (1999 Shari'a Bar)

**ANS:** Yes. Upon the expiration of the period to take an appeal the Shari'a court may _motu proprio_ issue the writ of execution (Sec. 8(2), Special Rules). As such, it is not necessary for the judgment creditor to file a motion for the execution of the judgment.

Q: May execution issue even before the expiration of the time to appeal or pending appeal? (1999 Shari'a Bar)

**ANS:** Yes. On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

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### Section 9. Appeal

Q: When and how may an appeal be taken.

**ANS:** An appeal from the judgment of the Shari'a court may be taken within fifteen (l5) days from the receipt of the judgment by filing a written notice of appeal to the court which rendered the decision and by paying the docket fee (Sec. 9, Special Rules).

Q: How is an appeal taken:

1. From the Shari'ah Circuit Court to the Shari'ah District Court?

2. From the Shari'ah District Court to the Supreme Court? (1987 Shari'a Bar)

**ANS:** (1) An appeal from the decision of the Shari'a Circuit Court to the Shari'ah District Court may be taken by filing a written notice of appeal to the court which rendered the decision within fifteen (l5) days from receipt thereof (Sec. 9, Special Rules).

(2) The decision of the Shari'ah District Court may be brought to the Supreme Court by filing in the latter court a petition for review on certiorari as a mode of appeal under Rule 45 of the 1997 Rules of Civil Procedure (Macawiag vs. Balindong, G.R. 159210, Sept. 20, 2006).

However, in the case of _Tomawis vs. Balindong, G.R. No. 182434, Mar. 5, 2010_ , the Supreme Court acknowledged the non-organization of the Shari'a Appellate Court and declared that until such time that the Shari'a Appellate Court shall have been organized, appeals or petitions from final orders or decisions of the Shari'a District Court filed with the Court of Appeals (CA) shall be referred to a Special Division to be organized in any of the CA stations preferably composed of Muslim CA justices. But for cases where only errors or questions of law are raised or involved, the appeal shall be to the Supreme Court by a petition for review on certiorari under Rule 45 of the Rules of Court.

Q: Where may the appeal be taken?

**ANS:** A decision or judgment of the Shari'a Circuit Court may be appealed to the Shari'a District Court which has jurisdiction over the area where the circuit court is sitting (Art. l44, PD l083). In the case of the Shari'a District Court, its decision or final order may be appealed to the Shari'a Appellate Court which has exclusive appellate jurisdiction over all cases tried in the Shari'a District Courts (Sec. 9, Art. VIII, RA 9054).

Q: What shall be the basis of the appellate court in rendering a judgment on a case appealed to it?

**ANS:** The Shari'a District Court shall decide every case appealed to it on the basis of the evidence and records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit. (Art. l44(2), PD l083) Regarding appeals to the Shari'a Appellate Court from the Shari'a District Court, the Supreme Court has yet to promulgate the applicable rules pursuant to the provisions of Section l7, Article VIII of RA 9054. It must be noted that the Shari'a Appellate Court has not yet been made operational.

Q; What shall the notice of appeal indicate?

**ANS:** The notice of appeal shall indicate the parties to the appeal, judgment or final order, or part thereof appealed from, and state the material dates showing the timeliness of the appeal (Sec. 3, Rule 40, Rules of Court, as amended).

Q: How is an appeal perfected? (1997 Shari'a Bar)

**ANS:** A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time (Sec. 9, Rule 41, _Ibid._ ).

Q: What is the effect of the perfection of the appeal?

**ANS:** In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties ( _Ibid._ ).

In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties ( _Ibid._ ).

In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39 of the Rules of Court, as amended, and allow withdrawal of the appeal ( _Ibid._ ).

Q: Where shall the appeal docket fee be paid and what is the effect of its non-payment?

**ANS:** The full amount of the appellate court docket and other lawful fees shall be paid to the court that rendered the judgment or final order subject of the appeal (Sec. 4, Rule 41 in connection with Sec. 9 Rule 40, Rules of Court, as amended). An appeal cannot be perfected if the corresponding docket fee is not paid. Such failure to pay the docket fee is a ground for the dismissal of the appeal (De Guzman vs. IAC, G.R. 66350, Jan. 20, l989).

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### Section 10. Appeal to the Shari'a District Court

Q: What is the duty of the clerk of court in appeal from the Shari'a Circuit Court to the Shari'a District Court? (1997 Shari'a Bar)

**ANS:** The clerk of court of the Shari'a Circuit Court shall transmit the original record, transcripts and exhibits, as well as the appellate docket fee to the appropriate appellate court within five (5) days from the perfection of the appeal (see Sec. 10, Special Rules).

Q: What is the duty of the clerk of the appellate court upon receipt of the original records?

**ANS:** Upon receipt of the original records, transcripts and exhibits, from the lower court, the clerk of the Shari'a District Court shall notify the parties of such fact (Sec. 11, Special Rules). The notice will enable the parties to submit memoranda, briefs or oral arguments as the court may order or as the rules may provide.

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### Section 11. Appeal to the Supreme Court

Q: Is there an appeal to the Supreme Court from the decisions of the Shari'a District Court?

**ANS:** Yes. The decision of the Shari'ah District Court may be brought to the Supreme Court by filing in the latter court a petition for review on certiorari as a mode of appeal under Rule 45 of the 1997 Rules of Civil Procedure (Macawiag vs. Balindong, G.R. 159210, Sept. 20, 2006).

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### Section 12. Legal Opinion (Fatwa)

Q: State the creation of the office of the Jurisconsult.

**ANS:** There shall be a Jurisconsult in Islamic Law, who shall be appointed by the President of the Philippines and hold office for a term of seven years, without prejudice to re-appointment, unless sooner removed for cause or incapacitated to discharge the duties of his office (Art. l64, PD l083).

Q: What are the qualifications of a Jurisconsult? (1999 Shari'a Bar)

**ANS:** No person shall be appointed Jurisconsult in Islamic Law unless he is a citizen of the Philippines, at least forty years of age, of good moral character and proven integrity, and an eminent scholar in the Qur'an and Hadith and in Islamic jurisprudence as well as proficient in Arabic (Art. l65, _Ibid._ ).

Q: What are the functions of the Jurisconsult? (1999 Shari'a Bar)

**ANS:** The functions of the Jurisconsult are:

(1) The Jurisconsult shall, on the written request of any interested party, have the authority to render legal opinions, based on recognized authorities, regarding any question relating to Muslim Law. For this purpose, he may, if he deems it necessary, consult or ask for a consensus of the _'ulama_.

(2) The Jurisconsult shall consider and act on every such request unless, in his opinion and for good reason, the question need not be answered.

(3) The Office of the Jurisconsult shall keep a compilation and cause the publication of all his legal opinions (Art. l66, _Ibid._ ).

Q: What is the legal effect of the opinion of the Jurisconsult?

**ANS:** The legal opinion of the Jurisconsult is not binding upon the court. It is merely advisory or persuasive. Neither it is incumbent upon the court to seek the opinion of the Jurisconsult.

In fine, the court, before rendering judgment, may or may not consult the Jurisconsult and once opinion is rendered by the Jurisconsult, it may not follow such opinion (Rasul, _op. cit._ , p. 62).

Q: Under what circumstances may the _fatwa_ of the Jurisconsult of Islamic Law be sought? What is its binding force in the Shari'ah courts? (1993 Shari'a Bar)

**ANS:** Before judgment is rendered, any court may seek the opinion _(fatwa)_ of the Jurisconsult of Islamic Law created under the Code of Muslim Personal laws in matters concerning difficult questions of Muslim Law and Jurisprudence _(fiqh)_ (Section l2, Special Rules).

The legal opinion of the Jurisconsult is not binding upon the court. It is merely advisory or persuasive. Neither it is incumbent upon the court to seek the opinion of the Jurisconsult. In fine, the court, before rendering judgment, may or may not consult the Jurisconsult and once opinion is rendered by the Jurisconsult, it may not follow such opinion (Rasul, _op. cit._ , p. 62).

Q: Under what condition or situation, if any, may the Jurisconsult refuse to render a _fatwa_ as required under Islamic Law? (1993 Shari'a Bar)

**ANS:** The Jurisconsult may refuse to render a fatwa when, in his own opinion and for good reason, the question need not be answered (Art. l66, PD 1083).

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### Section 13. Pleadings and Motions Disallowed

Q: Under the Special Rules of Procedure in the Shari'ah Courts, name the pleadings, petitions motions prohibited or disallowed to be filed in Court.(1987, 1991 Shari'a Bar)

**ANS:** The shari'a court shall not allow the filing of the following pleadings, petitions or motions, to wit:

(a) Motion to dismiss or to quash;

(b) Motion for a bill of particular;

(c) Motion for extension of time to file pleadings or other papers;

(d) Motion to declare defendant in default;

(e) Reply, third-party complaints, or intervention

(f) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;

(g) Petition for relief from judgment;

(h) Motion for new trial or reopening of trial;

(i) Any dilatory motion for postponement. (Section 13, Special Rules)

Q: What is the purpose in prohibiting those pleadings, motions and petitions?

**ANS:** Those pleadings, motions and petitions are prohibited in order to provide an expeditious and inexpensive determination of the cases brought to the Shari'a courts. It must be noted that the pleadings, motions and petitions enumerated in Section 13 of the Special Rules are in actual practice oftentimes used to delay the proceedings (see Hadji Ali Mamadsual vs. Judge Moson, G.R. 92557, Sept. 27, l990).

Q: What is a motion to dismiss?

**ANS:** A motion to dismiss under the Rules of Court has taken the place of the demurrer, which pleadings raised questions of law as to the sufficiency of the pleading apparent on the face thereof (Serrano vs. Cabrera, 5344 R, April ll, l95l)

Q: What are the grounds for a motion to dismiss?

**ANS:** Under Rule l6 of the Rules of Court as amended, the grounds for a motion to dismiss are:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise extinguished;

(i) That the claim on which the action or suit is founded is unenforceable under the provisions of the statute of frauds;

(j) That a condition precedent for filing the claim has not been complied with.

Q: What are the grounds for motion to quash?

**ANS:** In criminal cases, the grounds for a motion to quash under Section 3, Rule 117 of the Rules of Court are:

a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged or of the person of the accused;

(c) That the officer who filed the information had no authority to do so;

(d) That it does not conform substantially to the prescribed form;

(e) That more than one offense is charged except in those cases in which existing laws prescribed a single punishment for various offenses;

(f) That the criminal action or liability has been extinguished;

(g) That it contains averments which, if true, would constitute a legal excuse or justification; and

(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged.

Q: May a ground for motion to dismiss be pleaded as affirmative defense?

**ANS:** Yes. If no motion to dismiss has been filed, any of the grounds for a motion to dismiss provided for in Rule l6 of the Rules of Court, as amended, may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed (Sec. 6, Rule l6, Rules of Court, as amended). What the _Ijra At Al Mahakim Al Shari'ah_ proscribes is the filing of a motion to dismiss in lieu of an answer which would stop the running of the period to file an answer and cause undue delay. The prohibition is intended to put a stop to the filing of the dilatory pleadings with the end view of expediting proceedings before the Shari'a Courts (Hadji Ali Mamadsual vs. Judge Moson, G.R. 92557, Sept. 27, l990).

Q: After the defendant has filed his answer, he filed a pleading designated as "Amplification of Affirmative or Special Defenses with Prayer for Dismissal of Complaint On the Ground of Lack of Jurisdiction." On this basis, the Shari'a District Court issued an order dismissing the complaint. Plaintiff alleged that the court should not have considered defendant's pleading which was in effect, a motion to dismiss, as it is a pleading disallowed under Section 13 of _the Ijra At Al Mahakim Al Shari'ah_. Is the dismissal proper? Explain.

**ANS:** Under Section 16 of the _Ijra At Al Mahakim Al Shari'ah_ , it is specifically provided that the "Rules of Court shall apply in a suppletory manner" in civil cases. Section 6, Rule 16 of the Rules of Court provides as follows:

"SECTION 6. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed."

From the foregoing, it is clear the trial court properly set the case for hearing on the affirmative defenses seeking dismissal of the complaint raised by the private respondents in their answer. What _the Ijra At Al Mahakim Al Shari'ah_ proscribes is the filing of a motion to dismiss in lieu of an answer which would stop the running of the period to file an answer and cause undue delay. The prohibition is intended to put a stop to the filing of dilatory pleadings with the end in view of expediting proceedings before Shari'a courts (Hadji Ali Mamadsual vs. Judge Moson, G.R. 92557, Sept. 27, l990).

The case _of Heirs of Ricardo Olivas vs. Flor_ involves the application of the Rules of Summary Procedure in special cases before the Metropolitan and Municipal Circuit Trial Courts. The said Rules disallow the filing of motions to dismiss, wherein the Supreme Court held:

"In the guise of a position paper, private respondents filed a Motion to Dismiss. While this is, indeed, a prohibited pleading (Section 15(1), Rule on Summary Proceeding) it should be noted that the motion was filed after an Answer had already been submitted within the reglementary period. In essence, therefore, it is not the pleading prohibited by the Rules on Summary Procedure. What the rule proscribes is a Motion to Dismiss, which would stop the running of the period to file an Answer and cause undue delay."

Q: A Kuwaiti student who was married to a Filipino nurse in Kuwait sued the latter at the Shari'a District Court of Marawi City for guardianship and custody over their minor children. Upon being served with summons, the defendant filed a motion to dismiss on the ground that the court has no jurisdiction over the subject matter of the petition and the parties. The Shari'a court denied her motion on the ground that a motion to dismiss is a prohibited pleading. Is the denial proper?

**ANS:** No. The denial is improper. Where the absence of jurisdiction is patent on the face of the complaint itself, a summary rule prohibiting the filing of a motion to dismiss should not be a bar to the dismissal of the action. In _Rulona Al Awadhi, vs. Astih, G.R. 8l969, Sept. 26, l988_ , the Supreme Court held:

"Instead of invoking a procedural technicality, the respondent court should have recognized its lack of jurisdiction over the parties and promptly dismissed the action, for, without jurisdiction, all its proceedings would be, as they were, a futile and invalid exercise. A summary rule prohibiting the filing of a motion to dismiss should not be a bar to the dismissal of the action for lack of jurisdiction when the jurisdictional infirmity is patent on the face of the complaint itself, in view of the fundamental procedural doctrine that the jurisdiction of a court may be challenged at anytime at any stage of the action (Tijam vs. Sibonghanoy, 23 SCRA 29, 35 36; Crisostomo vs. CA, 32 SCRA 54; Zulueta vs. Pan American World Airways, Inc. 49 SCRA l, 6; Nueva Vizcaya Chamber of Commerce vs. CA, 97 SCRA 856).

Q: What is a motion for bill of particulars?

**ANS:** A motion for bill of particulars is one which moves for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him to prepare his responsive pleading (Section 1, Rule l2, Rules of Court, as amended).

Q: What is a motion to declare defendant in default?

**ANS:** It is one which moves for the declaration of the defendant in default for his failure to appear in a contentious litigation at the time required in the summons or to answer at the time provided by the rules (Sec. 3, Rule 9, _Ibid._ ).

Q: Suppose the defendant failed to appear at the pre-trial conference, may the plaintiff file a motion to declare him as in default?

**ANS:** No. Although the Special Rules made mention of a motion to declare defendant in default as a prohibited motion, it is believed that such prohibition includes one to declare him as in default for his failure to appear in the pre-trial conference.

Q: What is a reply?

**ANS:** A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters (Sec. l0, Rule 6, Rules of Court, as amended).

Q: What is a third-party complaint?

**ANS:** A third-party complaint is a claim that a defending party may, with the leave of court, file against a person not a party to the action, called the third-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim (Sec. l2, _Ibid._ ).

Q: What is an intervention?

**ANS:** It is a proceeding in a suit or action by which a third person is permitted by a 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 the plaintiff, or demanding something adversely to both of them (see Sec. 1, Rule 19, _Ibid._ ).

Q: What is a petition for certiorari?

**ANS:** It is a verified petition filed in the proper court to annul or modify the proceedings of a tribunal, board or officer when any such tribunal, board or officer exercising, judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law (Sec. l, Rule 65, _Ibid._ ; Garcia vs. De Jesus, _supra_ citing Pimentel vs. Comelec, 101 SCRA 769).

Q: What is a petition for prohibition?

**ANS:** It is a verified petition in the proper court praying that judgment be rendered commanding a tribunal, corporation, board or person to desist from further proceedings in the action or matter specified therein when the proceedings of any such tribunal, corporation, board or person, whether exercising functions judicial, quasi-judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law (Sec. 2, _Ibid._ ).

Q: What is a petition for mandamus?

**ANS:** It is a verified petition in the proper court to command a tribunal, corporation, board, or person, which unlawfully neglects the performance of an act the law specifically enjoins as a duty resulting from office, trust, or station, or which unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant (Sec. 3, _Ibid._ ).

Q: What are the orders unquestionable by certiorari?

**ANS:** Only interlocutory orders may not be questioned by petitions for certiorari, prohibition or mandamus. Final orders, or one that puts an end to the particular matter resolved, leaving thereafter no substantial proceeding to be had in connection therewith, except its execution, may be the subject of such petitions.

Q: What is an interlocutory order?

**ANS:** An interlocutory order is an order which does not terminate or finally dispose of the case, because it leaves something to be done by the court before the case is finally decided on the merits (People vs. Hewald, l05 Phil l297).

Q: What is a petition for relief from judgment?

**ANS:** It is a petition to set aside a judgment or final order rendered, or a proceeding taken, against a party through fraud, accident, mistake or excusable negligence (Sec. 1, Rule 38, Rules of Court). It may also be for the purpose of praying that an appeal be given due course when a judgment or final order is rendered by any court and a party thereto, by fraud, accident, mistake or excusable negligence, has been prevented from taking an appeal (Sec. 2, _Ibid._ ).

Q: What is a motion for new trial?

**ANS:** It is a motion filed with the trial court to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of a party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result (Sec. l, Rule 37, _Ibid._ ).

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# PART II

### OATH ( _YAMIN_ )

### Section 14. Administration of Oath

Q: When may an oath be administered?

**ANS:** An oath ( _yamin_ ) legally binding in a manner and form observed under Muslim Law may, by order of the court, be administered upon any of the parties who are Muslims to establish a fact, or to affirm any evidence presented. Such oath may constitute as proof in the absence of any other evidence (Section 14, Special Rules).

Q: What is the legal effect of the _yamin_ in the absence of any other evidence? (1999 Shari'a Bar)

**ANS:** In the absence of evidence by the _mudda'i_ , the _yamin_ may constitute proof to establish a fact. When the _mudda'alai_ takes the _yamin_ due to lack of evidence on the part of the _mudda'i_ , the claim against him shall be dismissed. Upon the other hand, when the _mudda'alai_ refuses to take the _yamin_ , the taking thereof by the _mudda'i_ may constitute proof to establish the claim and judgment will be rendered in the latter's favor.

Q: Who is a party required to take an oath under Shari'ah procedure? (1993 Shari'a Bar)

**ANS:** It depends. Ordinarily, the plaintiff ( _mudda'i_ ) has the burden of proof, and the taking of an oath ( _yamin_ ) rests upon the defendant ( _mudda'alai_ ). If the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the court. Should the defendant refuse to take an oath, the plaintiff shall affirm his claim under oath in which case judgment shall be rendered in his favor (Sec. 7, Special Rules).

Q: May a non-Muslim be required to take an oath under the Special Rules on Procedure in the Shari'ah courts? (1993 Shari'a Bar)

**ANS:** No. Section 14 of the Special Rules states that "[A]n oath ( _yamin_ ) legally binding in a manner and form observed under Muslim Law may, by order of the court, be administered upon any of the parties who are Muslims to establish a fact, or to affirm any evidence presented" and "[N]o person shall be allowed to take an oath unless he is qualified under Muslim law and is fully aware of the solemnity of the oath or the import of the solemn affirmation".

Q: What is an oath?

**ANS:** An oath is an invocation of the name of God or of some person or object held sacred by the person using the invocation, to witness the truth of a solemn affirmation and to emphasize that affirmation (Ali, _op. cit._ ).

Q: What is the form of an oath?

**ANS:** When the oath is about to be administered to one of the two litigants the oath is taken in the name of God the highest, saying _"wa 'llahe_ " or _"bi llahi_ ". (Art. l743, The Mejelle).

Thus, when someone is going to take an oath about his own act, the oath is made categorically, _i.e._ , the oath is caused to be taken finally, saying, "This thing is so," or "it is not". (Art. l748, _Ibid._ ).

In West Africa, in matters of procedure the Muhammadan courts adopt a compromise between Islamic and English principles. While the ordinary oath which all witnesses take is an oath on the Qur'an in the English form, the "perishable oath" is used when a defendant is challenged by a plaintiff who lacks adequate evidence or when the defendant "returns" such oath to the plaintiff; and this is sworn by the party concerned, after performance of the ceremonial ablutions, putting his finger on the first radical of the _Sura_ in the Qur'an entitled _al Tur_ and repeating three times after the _Qadi_ the first eight verses of that _Sura_. (Anderson _op. cit._ , p. 230)

In the case of _Tampar vs. Usman,_ G.R. 82077. _August l6, l99l_ , the defendant who was challenged by the plaintiff who lacks evidence to take the oath took the oath ( _yamin_ ) in the following form:

"I, Esmael Usman, swear in the name of Allah, Most Gracious, Most Merciful and upon the Holy Qur'an, that I bought the land in question from the plaintiffs; that I have not forged or falsified the signature of the plaintiffs; and that God will curse me if I am not telling the truth".

Q: Who administers the oath upon a party?

**ANS:** An oath may be administered upon any of the parties by order of the court. The court may order any competent Muslim, preferably an _Imam_ or religious leader of the local community to administer the oath (Section 14, Special Rules). In any case, the oath should be administered in the presence of the judge (Art. l744, The Mejelle).

Q: What are the classes of oath?

**ANS:** Oath may be classified into:

(a) _Procedural oath_ \-- which is of three kinds, namely: (l) _pre-requisite oath_ conducted or administered upon a witness before the reception of his testimony to tell the truth and nothing but the whole truth; (2) _decisive oath_ , as when one party challenges the other to take the oath and thereafter, submits to the decision of the court; and (3) _suppletory or supplementary oath_ , as when the court needs the oath of a witness if the court is not satisfied with his oral testimony.

(b) _Substantive oath_ \-- which may be of three kinds, namely: (1) _yaminul gamoos,_ as when an accused was convicted on the basis of the false testimony of a witness; (2) _lagwool yamin_ , which is an oath over a thing, past or present but is proved to be a mistake; and (3) _moon aqeedah_ , which is an intentional oath to do or not to do a thing, in the future (Rasul, _op. cit._ , pp. 44 45).

Q: What are the other kinds of oath?

**ANS:** The other kinds of oath according to authorities are:

(a) _yamin al istizhar_.-- Literally, the oath of revealing. This oath must be taken by, _e.g._ , the wife of an absent husband who is claiming maintenance, or in some cases divorce, to the effect that the husband did not leave her, and has not sent her, any maintenance; that she is not _nashiza_ (disobedient wife) and so disentitled thereto; and that she is not, to her knowledge, divorced, etc. Only after proof of marriage and the taking of this oath will the court give judgment in such case _ex parte_ (Anderson, J.N.D., Islamic Law in Africa, Frank Cass & Co., Ltd., (London), l970, p. 379).

(b) _yamin al qada._ \--Literally, the oath of judgment. This is another name for the _yamin_ _al istizhar_ (or _istibra_ ). It is regarded as incumbent in many different circumstances: _e.g._ , where a man produces two witnesses that some article in another's possession is his, he must take this oath that he did not sell it nor give it, etc., to its present possessor. It is also used in almost all claims against a deceased man's estate, or _ex parte_ ( _Ibid._ ).

(c) _yamin al tuhma.--_ The oath of suspicion. This is the oath which one accused of some offense without adequate evidence must take to clear himself. Some jurists insist that he must first be shown to be the sort of person on whom such suspicion might reasonably fall. This oath may not be returned by the accused to the accuser, since the latter does not claim certain knowledge ( _Ibid._ ).

Q: What are the instances where the oath is administered by the judge without an application by a party?

**ANS:** They are:

(1) When someone has claimed and proved a right against the estate of a deceased person, the judge administers an oath to the plaintiff, that he has not had this right satisfied in any way by the dead man, or got anyone else to have it satisfied, and that he has not given a release of it, and that he has not made a _hawale_ (transfer of a debt) imposing it on someone else, and that he has not been paid by any other person, and that he has not taken a pledge from the dead man as security for this right. This oath is called " _Istizhar_ ".

(2) When a person turns up having a right to property, and has made his claim and proved it, an oath is administered by the judge that he has not sold, or given that property, or, finally that it has not passed from his ownership in any way.

(3) When a purchaser has been going to return a thing which he has bought on the ground of defect, an oath is administered to him by the judge that after he discovered the defect, he did not by word, or, impliedly by any disposition of it as if it were his own property, assent to the defect in the thing.

(4) When a judgment is going to be given by a judge, for a right of pre emption, an oath is administered to the person claiming it that he has not made void his claim, _i.e._ , that he has not destroyed his right of pre-emption (Art. l746, The Mejelle).

Q: What is the legal effect of an oath?

**ANS:** When an oath is administered upon a party by order of the court, such oath constitutes as proof of fact in the absence of any other evidence (Sec. l4, Special Rules).

Q: At the scheduled hearing, the plaintiff failed to present witnesses and to adduce evidence in court. The shari'a court judge administered the oath ( _yamin_ ) to defendant. Before the rendition of judgment, plaintiff petitioned the court that he be allowed to present his evidence to prove his case. If you are the shari'a judge, will you grant his motion? What is the effect of the oath ( _yamin_ ) administered to defendant? Explain. (1983 Shari'a Bar)

**ANS:** If I were the judge, I will deny the motion of plaintiff. Section 7 of the Special Rules of Procedure Governing the Shari'a Courts provides, in part, that "[I]f the plaintiff has no evidence to prove his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the court."

The failure of the plaintiff to present witnesses and to adduce evidence at the scheduled hearing may be considered as equivalent to lack of evidence on his part. Consequently, the administration of the oath ( _yamin_ ) to the defendant is in accordance with the rules, and judgment may be rendered in favor of the defendant.

When an oath is administered upon a party by order of the court, such oath constitutes as proof of fact in the absence of any other evidence (Sec. 14, Special Rules). The administration of the oath ( _yamin_ ) to the defendant has the effect of proof of the inexistence of plaintiff's claim and entitles him to a favorable judgment.

Q: Who is qualified to take an oath?

**ANS:** No person shall be allowed to take an oath unless he is qualified under Muslim law and is fully aware of the solemnity of the oath or the import of the solemn affirmation. Any person who is to take an oath or solemn affirmation in accordance with Muslim Law shall be given reasonable time to think it over (Section 14(2), Special Rules).

Q: When and where shall the oath be taken? What is the effect of the refusal of a party to take an oath?

**ANS:** The court shall set an appropriate time, date and place of oath taking or of solemn affirmation by such person. If, at any time before such appointed date, the party who is required to take an oath or a solemn affirmation refuses to do so ( _nukul_ ), the court, may in its discretion direct the person, if he is the plaintiff, to withdraw his claim, or in case of the defendant, to admit the claim of the plaintiff (Section 14 (3), Special Rules).

Q: Explain what is meant by _yamin_ , _nukul_ and _tahaluf_ in Islamic procedure. (1993 Shari'a Bar)

**ANS:** _Yamin_ (oath) is an invocation of the name of God or of some person or object held sacred by the person using the invocation, to witness the truth of a solemn affirmation and to emphasize that affirmation (Ali, _op. cit._ p. l784). Such oath ( _yamin_ ), legally binding in a manner and form observed under Muslim Law may, when administered by order of the court to establish a fact, or to affirm any evidence presented may constitute as proof in the absence of any other evidence (Sec. 14(1), Special Rules).

_Nukul_ is the refusal of a party, who is required to take an oath or a solemn affirmation, to take an oath after the court has set an appropriate time, date and place of his oath taking or of solemn affirmation, in which case the court, may in its discretion direct the person, if he is the plaintiff, to withdraw his claim, or in case of the defendant, to admit the claim of the plaintiff (Sec. 14(3), Special Rules).

_Tahaluf_ is the mutual oath on any particular fact or facts which the court may, in its discretion, require of both parties in case of claims and counter claims where neither of such parties would give way at the pre-trial (Sec. 15, Special Rules).

Q: In one case, plaintiff filed his complaint and defendant filed his answer with counterclaims. In the course of the proceedings, the shari'a trial court ordered the defendant to take an oath ( _yamin_ ), but he refused ( _nukul_ ). Thereafter, the shari'a trial court ordered the plaintiff to affirm his claim under oath, but he also refused ( _nukul_ ). Under this setting, can the shari'a court validly dismiss the case despite the defendant's counterclaims? Will the defendant be barred from recovering his counterclaims merely because he refused to take an oath ( _yamin_ )? Explain. (1983 Shari'a Bar)

**ANS:** No, the shari'a court cannot validly dismiss the case unless the counter-claims of the defendant can remain pending for independent adjudication. The defendant will not be barred from recovering his counterclaims merely because he refused to take an oath. Such defendant's refusal applies only to plaintiff's claim and does not operate against his counterclaims which he may prove by evidence. If he has his counterclaims which he may prove by evidence. If he has no evidence to prove his counterclaims, the burden of proof will be shifted to the plaintiff who then may take an oath ( _yamin_ ).

The counterclaims can remain pending for independent adjudication if they do not arise out of, nor are they necessarily connected with, the subject matter of the plaintiff's claim. In such a case, the main case may be dismissed and the court may proceed with the counterclaims for independent adjudication on the merits.

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### Section 15. Mutual Oath _(Tahalif)_

Q: When may the court administer mutual oath upon the parties?

**ANS:** When claims and counterclaims are of equal weight, either by the absence of evidence on both or by the weight of the evidence of each, the court may, in its discretion, require both parties to the action to take oath on a particular issue and render judgment thereon (Section 15, Special Rules).

Q: "A" has a claim ( _da'wa_ ) against "B" in the amount of P1,000.00. "B" denies the claim and interposes the defense that the debt has already been settled and that "A" instead owes him P2,000.00. During the trial, "A" offers two witnesses, "C" and "D". Witness "C" attested the claim of "A" in the sum of P1,000.00; while witness "D" testified that "B" owes "A" P1,500.00.

What is the rule in cases where there are counter claims between the parties? In the above case, who is the _mudda'i_ and who is _mudda'alai_? (1993 Shari'a Bar)

**ANS:** In case of claims and counterclaims where neither of the parties would give way at the pre-trial, the court may in its discretion require both parties mutual oath _(tahalif)_ on any particular fact or facts upon which the court may render judgment. (Sec. 15, Special Rules)

As regards the original claim, A is the _mudda'i_ because if he should voluntarily relinquish his claim, he cannot be compelled to prosecute it. On the other hand, B is the _mudda'alai_ because if he should wish to avoid the litigation, he is compelled to sustain it.

The reverse applies to the counter-claim of B. In such a case, B becomes the _mudda'i_ and A, the _mudda'alai_. A counterclaim is considered a complaint, only this time, it is the original defendant who becomes the plaintiff (Chua vs. IAC, 47 SCAD 90, 99, 229 SCRA 99, 108 [1994]; Valisno vs. Plan, 143 SCRA 502 [1986]). It stands on the same footing and is to be tested by the same rules as if it were an independent action (Chua vs. IAC, _Ibid._ ; Vivar vs. Vivar, 8 SCRA 847; Calo vs. Ajax International, Inc., 22 SCRA 996 [1968]; Javier vs. IAC, 171 SCRA 605 [1989]).

Q: What are the instances where the court may administer oath to both parties?

**ANS:** They are:

(1) When there is a difference between the seller and the buyer as to the amount, or description or kind of the price, or the thing sold, or of both, whichever produces evidence, judgment is given for him, and if both of them produce evidence, judgment is given for him who proves the more. But if both of them are unable to give proof, it is said to them "either one consents to the claim of the other or we make the sale void". And if upon this, one of them does not agree to the claim of the other, the judge administers an oath to each of them about the claim of the other. And first he begins with the purchaser. And if either of them refuse the oath, the claim of the other is proved, and if both take the oath, the judge declares the sale void (Art. l778, The Mejelle).

(2) When the person who hires a thing has a dispute with the letter, before taking possession of a thing being recently let, _e.g._ , when the hirer makes a claim in Court, saying, "the rent is ten gold pieces," and the letter says, "it is fifteen gold pieces," whichever of them produces evidence, it is accepted. And if the two produce evidence together, judgment is given by the evidence of the letter. And if both are unable to prove their claim, the oath is administered to both, and they begin by administering the oath to the hirer, and whichever of them refuses, it is judged by his refusal. And if they two take the oath, the judge declares the contract of hire void (Art. l779, _Ibid._ ).

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### Section 16. Mutual Imprecation ( _Li'an_ )

Q: When may the court require mutual imprecation?

**ANS:** If a Muslim husband accuses his wife of adultery and fails to prove the same in accordance with Muslim Law, the court may require the husband and the wife, if she is a Muslim, to perform the prescribed acts of imprecation ( _li'an_ ) and, thereafter, the court shall dissolve the marriage by issuing the appropriate divorce decree in accordance with the provisions of the Code of Muslim Personal Laws (Section 16, Special Rules).

Q: What is a divorce by _li'an_?

**ANS:** Divorce by _li'an_ is a form of divorce which takes place when the husband accuses the wife of adultery but he has no witnesses to prove the accusation, and the wife denies it (Maulana Fazlul Kiram, Al Hadis Mishkat Ul Masabih, The Book House (Lahore), l939, Vol. 2, p. 709). In such a case, the court after due hearing shall require the husband and wife to perform acts of imprecation.

Q: What is the extent of evidence required in adultery?

**ANS:** The evidence required in accusation of _zina_ which includes adultery is the oral testimony of four adult male Muslim witnesses who have seen the actual act of sexual intercourse (Holy Qur'an, 4:l5). Women's testimony is not accepted in cases of adultery or in any _hadd_ offense (El Awa, _op. cit._ , p. l26 citing Mughni, vol. IX, pp. 69 70). The witnesses must be able to state where and when the offense took place, and must be able to identify the parties to the act. Testimony, moreover, must be delivered before the court in one sitting _(fi majlisin wahid_ ) ( _Ibid._ citing Mughni, _Ibid._ , p. 7l; Kasani, Badai, vol. VII, p. 48; Ibn Farhun, Tabsirah, Vol. I, p. 2l2). (This last condition is not necessary, according to the Shafii School).

The offense may, however, be proved by a sustained confession by the guilty party (Anderson, _op. cit._ , p. 380).

Q: What is the special procedure for mutual imprecation ( _li'an_ )? (1883 Shari'a Bar)

**ANS:** If a Muslim husband accuses his wife of adultery and fails to prove the same in accordance with Muslim law, the court may require the husband and the wife, if she is a Muslim, to perform the prescribed acts of imprecation ( _li'an_ ) and, thereafter, the court shall dissolve the marriage by issuing the appropriate divorce decree in accordance with the provisions of the Code of Muslim Personal Laws (Sec. 16, Special Rules).

Acts of imprecation means mutual cursing. It is performed by the husband's accusation of the wife of adultery four successive times and the wife's denial of the same each time it is uttered. At the fifth time, the husband solemnly invokes the curse of God upon himself if he tells a lie, and the wife upon her if her accuser is telling the truth (Holy Qur'an, Surah Nur, verses 6-9; Rasul, et al., Muslim Code of the Phils. Annotated, p.__).

Q: How is mutual imprecation made?

**ANS:** Acts of imprecation means mutual cursing. It is performed by the husband's accusation of the wife of adultery four successive times and the wife's denial of the same each time it is uttered. At the fifth time, the husband solemnly invokes the curse of God upon himself if he tells a lie, and the wife upon her if her accuser is telling the truth ( _Ibid._ ).

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# PART III

### SUPPLEMENTAL PROCEEDINGS

### Section 17. Suppletory Rule in Civil Cases

Q: What should apply in a suppletory manner to the Special Rules of Procedure Governing the Shari'a Courts?

**ANS:** Section 17 of the Special Rules provides that "[T]he court shall adhere to the sources of Muslim Laws relating to the number, status, or quality of witnesses ( _adala_ ) and evidence required to prove any fact. Except as herein provided, the Rules of Court shall apply in a suppletory manner."

Hence, the Rules of Court of the Philippines, in all matters not provided for by the Special Rules of Procedure except on matters of evidence, is applicable in the Shari'a courts. Procedural jurisprudence as well as pertinent resolutions of the Supreme Court likewise apply in the Shari'a courts.

Q: Before his death, Jamiri Musa, a Muslim, was a resident of Linao, Upi, Maguindanao. He left extensive real and personal properties located in the provinces of Maguindanao, Davao del Sur, and Davao Oriental. A joint petition for the administration and settlement of his intestate estate and liquidation of conjugal partnership was filed by respondent surviving wife before the Shari'a District Court, Fifth District, with station at Cotabato City. That Court embraces the province of Maguindanao but not the provinces of Davao del Sur and Davao Oriental. Petitioners opposed the petition contending that venue is improperly laid and that the action is beyond the jurisdiction of the Shari'a District Court at Cotabato City. Is the contention tenable?

**ANS:** The contention is not tenable. In _Wahida Musa vs. Moson_ , where petitioners claimed that since the deceased Jamiri Musa's residence at the time of his death was in Davao City, not Maguindanao, the proceeding is beyond the jurisdiction of the Shari'a District Court, Fifth Shari'a District, with station at Cotabato City and embraces Maguindanao, and that venue is more properly laid in Davao City before the Regional Trial Court, since there are no Shari'a District Courts in Davao, the Supreme Court held:

"Since the disposition, distribution and settlement of the estate of a deceased Muslim are, in fact, involved herein, the Joint Petition was correctly filed before the Shari'a District Court, Fifth Shari'a District.

x xx

"Since the subject intestate proceeding concerns successional rights, coupled with the fact that the decedent was also a resident of Linao, Upi, Maguindanao, owning real estate property located in that province, venue has been properly laid with the Shari'a District Court, Fifth Shari'a District, which is vested with territorial jurisdiction over Maguindanao, notwithstanding the location in different provinces of the other real properties of the decedent.

xxx

"The Rules of Court likewise provides that the Court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other Courts (Rule 73, Sec. 1). There should be no impediment to the application of said Rules as they apply suppletorily to the Code of Muslim Personal Laws, there being nothing inconsistent with the provisions of the latter statute" (Article 187 of said Code).(200 SCRA 715, 721 (1991).

Q: After the defendant has filed his answer, he filed a pleading designated as "Amplification of Affirmative or Special Defenses with Prayer for Dismissal of Complaint On the Ground of Lack of Jurisdiction." On this basis, the Shari'a District Court issued an order dismissing the complaint. Plaintiff alleged that the lower court should not have considered defendant's pleading which was in effect, a motion to dismiss, as it is a pleading disallowed under Section 13 of the _Ijra At Al Mahakim Al Shari'a_. Is the dismissal proper? Explain.

**ANS:** Under Section 16 of the _ljra At Al Mahakim Al Shari'a,_ it is specifically provided that the "Rules of Court shall apply in a suppletory manner" in civil cases. Section 6, Rule 16 of the Rules of Court provides as follows:

"SECTION 6. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed."

From the foregoing, it is clear the trial court properly set the case for hearing on the affirmative defenses seeking dismissal of the complaint raised by the private respondents in their answer. What the _Ijra At Al Mahakim Al Shari'a_ proscribes is the filing of a motion to dismiss in lieu of an answer which would stop the running of the period to file an answer and cause undue delay. The prohibition is intended to put a stop to the filing of dilatory pleadings with the end in view of expediting proceedings before Shari'a courts (Hadji Ali Mamadsual vs. Judge Moson, G.R. 92557, Sept. 27, l990).

The case of _Heirs of Ricardo Olivas vs. Flor_ involves the application of the Rules of Summary Procedure in special cases before the Metropolitan and Municipal Circuit Trial Courts. The said Rules disallow the filing of motions to dismiss, wherein the Supreme Court held:

"In the guise of a position paper, private respondents filed a Motion to Dismiss. While this is, indeed, a prohibited pleading (Section 15(1), Rule on Summary Proceeding) it should be noted that the motion was filed after an Answer had already been submitted within the reglementary period. In essence, therefore, it is not the pleading prohibited by the Rules on Summary Procedure. What the rule proscribes is a Motion to Dismiss, which would stop the running of the period to file an Answer and cause undue delay."

Q: As a Shari'ah law practitioner, prepare a complete verified petition for correction of entry in the local Shari'ah District Registry to be filed before the appropriate Shari'a Court according to the facts and circumstances of the case herein stated.

Petitioners Abdullah Mohammad and Sittie Mohammad are spouses, Filipino Muslims, of legal age, residing at Jolo, Sulu; the local District Registrar is impleaded as a formal party respondent; the spouses are the legitimate parents of a three year old minor son Amin Mohammad born on February 28, 1988 at the Sulu Public Hospital, Jolo, Sulu; through inadvertence, the local Registrar with whom the birth of their child was registered, erroneously mispelled their son's name as "AMINA MOHAMMAD" instead of the correct name and spelling "AMIN MOHAMMAD", evidenced by xerox copy of the certificate of Live Birth attached as Annex "A"; the erroneous entry in the registry book of live birth is substantial and not innocuous in character as it affects the very identity of the petitioner's son and is even misleading as to his sex which appears to be female, and would probably subject him to constant ridicule and harassment in the future. (1991 Shari'a Bar)

**ANS** ::

Republic of the Philippines

SHARI'A DISTRICT COURT

First Shari'a District

Jolo, Sulu

ABDULLAH MOHAMMAD

and SITTIE MOHAMMAD,

Petitioners,

SPL. PRDGS. NO._____

\- versus -

For: Correction Of Entry

LOCAL CIVIL REGISTRAR,

Respondent.

x-------------x

P E T I T I O N

COME NOW the petitioners, by counsel, and unto this Honorable Court, most respectfully aver:

1. That petitioners are spouses, Filipino Muslims, of legal age, resident of Jolo, Sulu, while the Local District Registrar is the public officer charged with the keeping of the civil registry and herein impleaded as a formal party respondent;

2. That petitioners are the legitimate parents of a three-year old minor son Amin Mohammad born on February 28, 1988 at the Sulu Public Hospital, Jolo, Sulu;

3. That through inadvertence, the local Registrar with whom the birth of their child was registered, erroneously misspelled their son's name as "AMINA MOHAMMAD" instead of the correct name and spelling "AMIN MOHAMMAD", evidenced by xerox copy of the Certificate of Live Birth attached as Annex "A" and made as integral part of this petition; and

4. That the erroneous entry in the registry book of live birth is substantial and not innocuous in character as it affects the very identify of the petitioners' son and is even misleading as to his sex which appears to be female, and would probably subject him to constant ridicule and harassment in the future.

WHEREFORE, it is respectfully prayed of this Honorable Court that judgment be rendered directing respondent to correct the birth certificate of Amin Mohammad so that the name of said child should read as "Amin Mohammad" instead of "Amina Mohammad".

03 April 1991, Jolo, Sulu, Philippines.

MOHD. MERHUSSEIN G. GUBAT

Counsel for the Plaintiff

Officer's Line, Marawi City

IBP O.R. 0178129445 2/12/96

PTR NO. 09184902603 2/15/96

VERIFICATION AND CERTIFICATION

Republic of the Philippines)

Municipality of Jolo)S.S.

Province of Sulu)

ABDULLAH MOHAMMAD, after having been sworn, deposes and says: That he is one of the petitioners in the above-entitled case; That he caused the preparation of the foregoing complaint; That he has read and understood its contents; That to his own knowledge, the allegations thereof are true and correct; That he hereby certifies that he has not heretofore commenced any other action or proceeding involving the same issues before the Supreme Court, the Court of Appeals, or any other tribunal or agency, and to his own knowledge no such action or proceeding is pending before said courts; That should he learn hereafter that a similar action or proceeding has been filed or pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, he undertakes to report the same to this Honorable Court within five (5) days therefrom.

HEREUNTO set his hand this 17th day of November, 1996 at Marawi City, Philippines.

ABDULLAH MOHAMMAD

Affiant

SUBSCRIBED and sworn to before me this __th day of April, 1991 at Marawi City, Philippines.

Notary Public

Q: Define or explain the meaning of evidence. (1987 Shari'a Bar)

**ANS:** Evidence is the means sanctioned by the rules of ascertaining in a judicial proceeding the truth respecting a matter of fact (Sec. 1, Rule 128, Rules of Court).

Q: Define procedure and distinguish it from evidence. (1991 Shari'a Bar)

**ANS:** Procedure is the body of rules that governs or provides the framework of the judicial process (Cound, Civil Procedure, 4th ed., p. 14). It is the means by which the power or authority of a court to hear and decide a class of cases is put to action (Garcia vs. De Jesus, 206 SCRA 779,788; Manila Railroad Co. vs. Attorney-General, 20 Phil 523).

Procedure and evidence are distinguished as follows:

a) Broadly speaking, procedure, being remedial in nature and not substantive law, includes evidence, whereas evidence is fundamentally a procedural law;

b) Rules of procedure is the means by which the power or authority of a court to hear and decide a class of cases is put to action (Garcia vs. De Jesus, 206 SCRA 779,788; Manila Railroad Co. vs. Attorney-General, 20 Phil 523) whereas evidence is the mode and manner of proving competent facts in a judicial proceeding (Bustos vs. Lucero, Phil 640).

c) In the shari'a courts, its procedure shall be supplemented by the Rules of Court of the Philippines whereas evidence shall be governed by sources of Muslim law on evidence (Section 17, Special Rules).

Q: Explain briefly, distinguishing one from the other: Evidence and Proof. (1987 Shari'a Bar)

**ANS:** Evidence differs from proof as cause differs from effect. Proof is that which convinces; evidence is that which tends to convince; proof is the perfection of evidence, for without evidence there is no proof, though there may be evidence which does not amount to proof (Jones on Evidence, 12 cited by Apostol, Essentials of Evidence, p. 3 and 5 Martin 2).

Stated differently, proof is the result of evidence; evidence is the means which leads to it. Proof is the effect of evidence -- the establishment of a fact by evidence ( _Ibid._ citing The Chamberlayne Trial Evidence, p. 2).

Q: What do you understand by "burden of proof" as distinguished from "burden of evidence? (1983 Shari'a Bar)

**ANS:** By the "burden of proof" or " _onus probandi_ " is meant the obligation imposed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action, to establish its proof (5 Martin 435 citing Jones on Evidence, 2nd ed. 855). It is the obligation imposed by law on a party to the litigation to persuade the court that he is entitled to relief. If no evidence is presented on a particular issue, the party having the burden of proof as to that issue will lose the litigation ( _Ibid._ , citing Gilbert Law Summaries on Evidence, p. 73).

"Burden of evidence" is defined as "that logical necessity which rests on a party at any particular time during a trial to create a _prima facie_ case in his own favor, or to overthrow one when created against him. The burden of evidence is determined by the progress of the trial, and shifts to one party when the other party has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor ( _Ibid._ citing 2 Jones on Evidence, 2nd ed. 855).

Q: What are the methods of proving a fact?

**ANS:** Under Islamic procedural law, there are four ways of proving an allegation or establishing a fact namely:

(a) testimony of witnesses ( _shuhud_ ) (Sec. 6(2), _Ibid._ ; El Awa, _op. cit._ , p. 125);

(b) admission or confession ( _iqrar_ ) (Section 7(2), Ibid; El Awa, _op. cit._ , p. 127);

(c) oath ( _yamin_ ) (Sections 7 (1) and 14(1), Ibid; Art. 1742, The Mejelle); and

(d) other evidence ( _bayyina_ ) (Section 6(2), Ibid; Arts. 1736 to 1739, The Mejelle; Anderson, _op. cit._ , p. 69; Alauya, _op. cit._ , p. 44).

Q: What are the three legal methods of proof in Islamic jurisprudence? (1983 Shari'a Bar)

**ANS:** Under Islamic jurisprudence, the three (3) methods of proof as follows: (a) admission or confession (al _iqrar_ ); (2) testimonial evidence ( _shuhud_ ); and (3) oath ( _yamin_ ). (Rasul, _op. cit._ p. 54).

Some authorities consider other evidence ( _bayyina_ ) as a mode of proving a fact (Section 6(2), Ibid; Arts. 1736 to 1739, The Mejelle; Anderson, _op. cit._ , p. 69; Alauya, _op. cit._ , p. 44).

Other jurists also consider circumstantial evidence _(qara'in)_ as an acceptable means of proof in the absence of others although the generally accepted view is that it is not one of the methods of proof recognized under Islamic law (El Awa, _op. cit._ p. l30). But circumstantial evidence will only be acted upon if it is of a conclusive nature _(qatia'tun)_ (Rahim, _op. cit._ , p. 38l).

Q: Compare the value of an oath of affirmation with that of an oral testimonial evidence. (1993 Shari'a Bar)

**ANS:** Testimonial evidence and oath of affirmation both constitute modes of proof. Testimonial evidence, however, precedes oath of affirmation. The plaintiff ( _mudda'i_ ) has the burden of proving his claim by testimonial evidence (shahada) and other evidence ( _bayyina_ ). If he has none, the taking of the oath of denial rests with the defendant ( _mudda'alai_ ). If the defendant ( _mudda'alai_ ) refuses to take the oath, then the plaintiff may take the oath of affirmation as a proof of fact upon which judgment shall be rendered. (Sec. 7, Special Rules)

Testimonial evidence can be given only by a person not a party to the action, _i.e._ a witness. Oath of affirmation can be taken only by the plaintiff ( _mudda'i_ ) when he has no evidence and upon the refusal of the defendant ( _mudda'alai_ ) to take the oath of denial.

Q: Explain the juristic theory relating to testimony?

**ANS:** Testimony of a witness _(sha'dat)_ is a juristic act of the category of information _(akhabarat)._ When a right is originated or translated either by an event of nature or act of man, it is the State as representative of the community that gives effect to such a fact when it occurs. When a fact has given rise to a right of an individual, the State takes notice of it when moved by him and when to a right of its own it takes notice of it of its own motion. But in either case, the official of the State in this connection, that is, the Judge, if he himself has no personal knowledge of the occurrence which he mostly has not, has to depend upon information or evidence. This information may be supplied either by the statements of some one who perceived the fact or by perceptible signs or traces accompanying or immediately following the event or by both. If the fact is of an imperceptible nature or all traces of it have been removed or disappeared, it is necessarily beyond the ken of a human tribunal. For this reason there can, generally speaking, be no evidence of a bare negation or denial (Rahim, Abdul, pp. 374 375 citing Al Majallah, p. 289).

When a perceptible fact originating or translating a certain right has occurred, it is a right as well as duty of every member of the society who perceived it to give information of it to the State. But as the witness may choose not to give a correct account of what happened and such account alone can be said to be information, the duty or obligation to give evidence is regarded as of an imperfect character so far as its enforcement by the human tribunals is concerned. False testimony is not regarded as evidence by Muhammadan jurists, as the very object of information is to disclose what occurred. In fact, according to them, false testimony or false evidence or false information would be a contradiction of terms ( _Ibid._ citing Fathu'l _Qadi_ r, vol. vi, p. 446).

The necessity for evidence mostly arises when the fact in question has originated a right in someone against another and the latter denies it. And it is in the very conception of evidence that it gives information of that fact its practical effect to originate liability against the person of incidence taking the place of the fact itself so far as a human tribunal is concerned. The Muhammadan jurists, therefore, say that to give evidence is the right of a person who has seen an occurrence to fasten liability upon the person against whom a right is claimed. So far as the Court is concerned its only function is to enforce such liability on a demand to that effect being made by the claimant and on being furnished with the information or proof. The right of the witness, however, is to give true evidence _(shahadat)_ but as men do not always give correct information either from error of perception or some moral aberration, it is incumbent on the law to take precautions with a view to prevent the Court as far as possible from being misled by falsehoods. ( _Ibid._ , pp. 375 376)

True information alone being regarded as evidence, there can be no conflict of evidence though there may be conflicts of statements, one of which alone can be called evidence, the other being either a falsehood or an error. As regards falsehoods or errors, it cannot be the right or duty of any one to place them before the Court nor can the Court admit them. Hence, on principle, evidence relating to a fact must necessarily according to Muhammadan jurists be one-sided. Having regard to these principles, the law makes provisions for excluding as far as possible mistakes and falsehoods. Some of these are mere matters of procedure, but the others indicate the nature and extent of testimony as a juristic act ( _Ibid._ ).

Q: State the reason why testimonial evidence _(shahada)_ is considered of higher character compared to documentary evidence in Islamic Rules on Evidence. (1993 Shari'a Bar)

**ANS:** The giving of testimonial evidence is a personal obligation of every Muslim qualified to do so in order to safeguard a right (Alauya, _op. cit._ , p. 45). When a perceptible fact originating or translating a certain right has occurred, it is a right as well as duty of every member of the society who perceived it to give information of it to the State (Rahim, _op. cit._ p. 374-375 citing Fathu'l _Qadi_ r, vol. vi, p. 446). The Holy Qur'an thus warns:

"Conceal no evidence;

For whoever conceals it, --

His heart is tainted

With sin. And God

Knoweth all that ye do."

(Holy Qur'an, 2:283)

It sometimes happens that if some inconvenient piece of evidence is destroyed or concealed, one gains a great material advantage. The Holy Qur'an warns not to yield to such a temptation. The concealment of evidence has a serious effect on one's moral and spiritual life, for it taints the very source of higher life, as typified by the heart (Ali, _op. cit._ , p. 115).

It has thus been said that the personal word of an upright Muslim is deemed worthier than an abstract piece of paper, susceptible to alteration and falsification. Besides, Islamic law has assigned quasi-religious function _(wazifa dinnuya)_ to witnesses. Furthermore, the witnesses can be challenged to take an oath ( _yamin_ ) which is withheld from documentary evidence (Rasul, p. 55).

Moreover, documentary evidence, as a general rule, does not by itself establish any fact. The document must still be identified and its genuineness and due execution established by testimonial evidence. It is in this wise that testimonial evidence is regarded of a higher character than documentary evidence.

Q: What is the wisdom in the Qur'an of the requirement of four (4) witnesses to prove a charge of adultery? Briefly explain. (1993 Shari'a Bar)

**ANS:** Islam commands sex purity, for men and for women, at all times, - before marriage, during marriage, and after dissolution of marriage. Those guilty of illicit practices are shut out of the marriage circle of chaste men and women (Ali, _op. cit._ , p. 896). Thus, the Holy Qur'an ordains:

"Let no man guilty of

Adultery or fornication marry

Any but a woman

Similarly guilty, or an Unbeliever:

Nor let any but such a man

Or an Unbeliever

Marry such a woman:

To the Believers such a thing

Is forbidden (Sura Nur, verse 3).

The gravity of the accusation of adultery and its consequence, if proven, demand a high degree of evidence. A woman guilty of adultery can only be given in marriage to an unbeliever or a man equally guilty of adultery or fornication. Thus, the most serious notice should be taken of people who put forward slanders or scandalous suggestions about women without adequate evidence. If anything is said against a woman's chastity, it should be supported by evidence twice as strong as would ordinarily be required for business transactions, or even in murder cases (Ali, _op. cit._ p. 897). Allah knows best.

Q: What are the different kinds of testimony?

**ANS:** The kinds of testimony are:

(1) _Universal testimony (tawatur)_. -- It is the highest kind of oral testimony having regard to its value as a proof. Such proof consists of information given by such large body of men that our reason cannot conceive that they would combine in a falsehood or agree in an error.

(2) _Isolated or single testimony_. -- When testimony is not of this notorious and universal character it is called isolated or single testimony.

(3) _Admission_ ( _iqrar_ ). -- When a man testifies against himself in support of a claim made against him, it is called admission (Rahim, _loc. cit._ ).

Q: Explain the conditions relating to capacity of a witness.

**ANS:** Regard being had on the various reasons which induce men to tell falsehoods or the circumstances which prevent them from giving correct and reliable information, the law insists upon certain conditions as necessary for a juristic act of this class namely:

(a) _Freedom from bias and prejudice_ ; hence, testimony is not admitted of the father in favor of the son and vice versa, of a slave in favor of his master, or parties in support of their own case, of a person who bears a grudge against the opposite party, of a non-Muslim against a Muslim and so on.

(b) _General reliability of character_ ; hence, persons carrying on certain professions of a degrading nature, such as professional dancers, persons known to be habitual liars, drunkards or gamblers, persons who are not of virtuous character being in the habit of committing such breaches of religious injunctions as would entail _hadd_ , that is, men who are _fasiq_ , or opposed to _a'dil_ or as the compilers of the _Al Majallah_ , those whose bad actions outweigh their good ones and unscrupulous officers employed for purposes of oppression are not admitted as witnesses. Abu Yusuf is, however, of the opinion that though a man be not of virtuous character, yet if he is of such a position in life that he is unlikely to depose to falsehood, he ought to be admitted as a witness.

(c) _Maturity of the understanding and power of perception;_ thus, a small child, a lunatic, or a blind man in matters which have to be proved by ocular testimony, are declared unfit for giving testimony. ( _Ibid._ , pp. 376 377)

Q: What is the required number of witnesses in case of claims belonging to the category of rights of men?

**ANS:** As a precaution against the chances of mistake or false testimony and also because otherwise there would be the word of one man against another, testimony of a single witness is generally regarded as insufficient to prove a claim. Hence, claims belonging to the category of rights of men are not established except by the testimony of two male or one male and two female witnesses. But certain matters which women alone are likely to know such as whether a particular child was born to a particular woman, can be proved even by the testimony of a single woman ( _Ibid._ ).

Q: What is the required proof on matters of the category of a public right?

**ANS:** Matters which are of the category of a public right and require absolute certainty of proof, such as offenses entailing the punishment of _hadd_ can only be proved by the testimony of two male witnesses and in one case, namely, that of whoredom by four male witnesses. A woman is regarded as of inferior competence in respect of giving evidence because of her weak character ( _Ibid._ ).

Q: What is meant by _hadd_?

**ANS:** In criminal law, _hadd_ means an unalterable punishment prescribed by God for certain specific offenses (Anderson, _op. cit._ , p. 362).

Q: What is the duty of the judge in determining the competency of a witness?

**ANS:** It is one of the important duties of a Judge, if the witness who is put forward by the party going into evidence as eligible, has given relevant evidence against the opposite party and the latter challenges the evidence by alleging that his evidence is false or due to his having forgotten the occurrence, to make inquiries into the witnesses' competence and particularly as to the fact of his being a man of rectitude. The inquiry is to be made by him either privately or in Court with the help of persons whom he knows to be reliable and who are acquainted with the life and character of the witness (Rahim, p. 378).

If a witness is a stranger to the place the _Qadi_ of the locality where he resides should be asked to make the inquiry. The _Qadi_ s are also required to keep a register of persons who are proved to be _a'dil_ or men of rectitude and to revise the register from time to time (Rahim, p. 378).

Q: May the other party object to the competency of a witness? If yes, how?

**ANS:** Yes. The other party is at liberty to take exception or objection _(jarh, tan)_ to such evidence by showing that the witness is disqualified such as by reason of bias or interest or otherwise ( _Ibid._ citing Fathu'l _Qadi_ r, vol. vi, pp. 453 9; Hedaya, vol. vi, pp. 458 9).

Q: Explain _ta'dil_ in relation to _tajrih_ as an inquisitorial process of judicial administration of the shari'a law. (1983 Shari'a Bar)

**ANS:** _Ta'dil_ is to declare the witness _'adl_ (a competent witness) that is, one fulfilling all the requirements of Islamic law. As a competent witness, he must be a major, sane, free Muslim who faithfully performs his religious duties, leads a moral life, and has no personal interest in the case (Anderson, _op. cit._ , p. 357).

_Tajrih_ is the discrediting of a witness by an attack on his ' _adala_. There must normally be two competent witnesses to some deficiency therein: and if these are forthcoming the testimony of the witness concerned must, in view of the majority of jurists, be utterly excluded, however convinced the court may be of its reliability in the particular circumstances. It is a tempting device, therefore, in some localities to discredit witnesses on grounds of slackness in their religious observances, etc.: although some jurists have said that in degenerate days the court must be content with the best witnesses obtainable, lest the rights of many litigants be lost ( _Ibid._ , p. 377).

Q: "A" has a claim ( _da'wa_ ) against "B" in the amount of P1,000.00."B" denies the claim and interposes the defense that the debt has already been settled and that "A" instead owes him P2,000.00. During the trial, "A" offers two witnesses, "C" and "D". Witness "C" attested the claim of "A" in the sum of P1,000.00; while witness "D" testified that "B" owes "A" P1,500.00.

State the rule in Islamic Evidence as to the number of witnesses required to establish a fact. In the above case, is the requisite number of witnesses satisfied? (1993 Shari'a Bar)

**ANS:** In Islamic law, claims belonging to the category of rights of men are not established except by the testimony of two (2) male or one (1) male and two (2) female witnesses (see Sura Al-Baqara, verse 282, Holy Qur'an). But certain matters which women alone are likely to know, such as whether a particular child was born to a particular woman, can be proved even by the testimony of a single woman. Matters which are of the category of a public right and require absolute certainty of proof, such as offenses entailing the punishment of _hadd_ can only be proved by the testimony of two male witnesses and in one case, namely, that of whoredom by four male witnesses (Rahim, _op. cit._ , pp. 376 377).

In the above case, the requisite number of witnesses was not satisfied. The law requires the testimony of two male witnesses, or one male and two female witnesses to establish a particular fact (Sura Al-Baqara, verse 282, Holy Qur'an) which must not be in conflict with each other; otherwise it will be rejected (Rahim citing Al Majallah, p. 291); Here, the testimony of witnesses "C" and "D" did not correspond with each other.

Q: In the above case, suppose "C" is a male witness and "D" is a female witness and both of them are competent to offer evidence. What would be the required number or status of witnesses to establish the claim of "A"? (1993 Shari'a Bar)

**ANS:** There must be the additional testimony of at least a female witness on the particular claim of "A". The law requires the testimony of two male witnesses, or one male and two female witnesses to establish a particular fact. Hence, in addition to the testimony of "C" and "D" one additional female witness should be presented in order to establish the claim of "A".

Q: State the concept of direct and hearsay testimony?

**ANS:** Direct testimony alone, generally speaking, has any probative value. Hence, a fact must be proved by an eyewitness if it be one which could be seen, or if it consisted of spoken words, by the person who heard them. But sometimes indirect testimony is also admitted. For instance, the facts of paternity, death, marriage, appointment of a _Qadi_ , can be proved by a person who received information with regard to them from men of reliable character (Hedaya, vol. vi., pp. 466 7; Al Majallah, pp. 287 288). Even in those matters a mere statement by a witness that he heard so and so will not be accepted but he must be able to depose to the fact itself, for instance, that on a particular date so and so was the _Qadi_ of such a place or so and so died on such date and that he knew it although his knowledge might be based on hearsay. In other words, his information must have produced such belief in his mind as to be accepted by himself as knowledge. Similarly, if he says "I did not see this but know it" and it is a notorious fact, the statement will be accepted. Such evidence is also admissible to prove the fact or a property being _waqf_ but not to prove the conditions of the grant (Hedaya, vol. vi, p. 469). If a person sees another in possession of a property other than a slave, he would be justified in deposing that it belongs to the man in possession because possession indicates ownership ( _Ibid._ , pp. 378 9 citing Hedaya, vol. vi, p. 469).

It may sometimes happen that the person who witnessed a transaction may not be available owing to their being dead or being at such a great distance that it is not practicable to produce them; then evidence may be received of a person who heard them state that they witnessed the transaction. This is called "evidence of testimony" _(shahadut ala shahadut)_ , and is allowed by juristic equity because of necessity ( _Ibid._ ).

Q: Must the testimony agree with claim? Give examples.

**ANS:** Yes. Legal testimony must also agree with the claim; otherwise it has no effect. For instance, when the claim is that a certain property has belonged to the plaintiff for two years and his witnesses say that it has been his for above two years, it will not be accepted; though if they had said that the property had been owned by the plaintiff for less than two years, the testimony would not be discarded, because their knowledge might have fallen short. Similarly, if a plaintiff claims a thousand rupees and the witnesses speak to five hundred, the evidence will be accepted for five hundred, but not if they speak to more than a thousand. Suppose a man's claim is for thousand rupees for property sold and the witnesses depose that the defendant owes thousand rupees to the plaintiff on account of a loan, it will not be accepted (Al Majallah, p. 291). Similarly, if there is conflict of testimony among the witnesses of the claimant such evidence will be rejected ( _Ibid._ ).

If the evidence be opposed to a visible or notorious fact it will have no operation ( _Ibid._ ).

Q: Suppose both the parties make contradictory allegations of a positive nature in relation to the same matter and both are prepared to adduce proof, whose proof is to be preferred or heard _(tarjihu'l bayyinat_ )?

**ANS:** The general rule is that the evidence of the party whose allegation is supported by certain general presumptions _(istishabul hal)_ will be preferred. The Court cannot hear evidence in support of the allegations of both, because the allegation of one must be false and the testimony in support of it cannot be information or evidence. Thus, if one person wishes to produce evidence that a person was in good health at a particular time and the opposite party wants to prove that he was then seized with death illness, there being nothing else, the evidence of the former will be accepted in preference to that of the latter. The reason is that in the absence of proof to the contrary a man will be supposed to continue in good health. Similarly, evidence of the party who wants to prove that a man was possessed of understanding will be heard in preference to that of the party who alleges that he was insane or idiotic at a particular time. The evidence that a certain property was purchased will be preferred to the evidence that it was a gift or a pledge or hired, and the evidence that it was hired would be preferred to the evidence that it was a pledge ( _Ibid._ , pp. 379 380).

If both the parties are in possession of a certain property and one of them claims that it belongs exclusively to him and the other alleges that it belongs to them jointly, the evidence of the former will be heard, the reason being that his right is partially admitted by the latter. If, on the other hand, both claimed exclusive rights, they will be declared to be joint owners as there is no reason for preferring the proof of one to that of the other ( _Ibid._ ).

Q: When is the word of one party to be accepted?

**ANS:** In certain cases where both the parties are unable to adduce proof, but there is a presumption in favour of the allegation of one of them arising from circumstances _(tahkim ul hal)_ , the statement of that party is to be accepted.

In such cases the law will sometimes require the party in whose favour the presumption is raised to take the oath and sometimes not. For instance, when there is a dispute between the husband and the wife regarding certain goods in the house, if they are articles like swords and lances and the like, they will be presumed to belong to the husband and his word will be accepted and a decree will be made in his favour if the wife is to adduce any proof and the husband is prepared to take the oath. A similar presumption will be made in favour of the wife in respect of things like household utensils, carpets, and so on .If a donor applies for revocation of his gift and the donee says that the thing has perished, his word is to be accepted without his being asked to take the oath. If a bailee says that he has returned the goods entrusted to him, his word is to be accepted if he takes the oath. If a Christian dies and his wife alleges that she became Muhammadan after his death, but his heirs say that she became a convert to Islam before his death, the statement of the heirs is to be accepted. The reason is that, at the time the woman comes to Court, she being a Muhammadan, this fact confirms the allegation of the heirs ( _Ibid._ citing Hedaya, vol. vi, p. 425). Sometimes when the parties to a transaction cannot agree and neither of them is able to adduce evidence, but both are prepared to take the oath in support of their respective allegations, the Court will set aside the transaction itself. For instance, when the vendor and the buyer of an article cannot agree as to the amount of consideration or as to thing sold or both, and none of them can adduce evidence, but both are prepared to take the oath in support of their allegations, the Court will set aside the sale. The reason is that there is no ground for preferring the bare statement of the one to that of the other ( _Ibid._ ).

Q: Is circumstantial evidence admissible? If yes, under what conditions?

**ANS:** Yes. Besides human testimony facts and circumstances _(qarinat)_ may also be relied upon as proof. But circumstantial evidence will only be acted upon if it is of a conclusive nature _(qatia'tun)_. For instance, if a person is seen coming out from an unoccupied house in fear and anxiety with a knife covered with blood in his hand and in the house a dead body is found with its throat cut, these facts will be regarded as a proof that the person who was seen coming out murdered him ( _Ibid._ , pp. 381 382; The Mejelle, p. 306). In other words, circumstantial evidence is admissible in evidence if it partakes of a complete presumptive proof which is an inference which attains the degree of positive knowledge (Art. l74l, The Mejelle).

Q: May a witness retract his testimony? Explain.

**ANS:** Yes. The juristic effect of testimony may be revoked by the witness himself by retraction of what he testified to. Such retraction must be made in Court, otherwise it will not be taken into account at all. If the witnesses retract their testimony before the order is passed, such testimony will be rejected, but if afterwards, it will not affect the order. If in the last case their evidence has caused any loss, the witnesses will be held liable (Rahim, _loc. cit._ ).

Q: What is an admission? Explain.

**ANS:** When a man testifies against himself in support of a claim made against him, it is called admission ( _Ibid._ , p. 376). The Court generally accepts an admission without requiring any further proof from the claimant. An admission must, however, be unconditional, and it must be voluntary, so that if obtained by coercion it is not binding nor if made in jest. Similarly, if the fact admitted is contradicted by apparent and obvious circumstances of the person making the admission, it will not be accepted ( _Ibid._ , p. 382).

Q: What are the requirements for the admissibility of an admission?

**ANS:** They are as follows:

(1) The admitter must be sane;

(2) He must be of age;

(3) The admission is voluntary;

(4) He can lawfully transact business; and

(5) He must not be known or popularly identified in telling lies (Alauya, _op. cit._ , pp. 44 45).

Q: Is documentary evidence admissible? Explain.

**ANS:** Yes. Sometimes documents are accepted as a substitute for oral testimony. But the Court is not to act on a sealed deed or any other document unless it is free from the suspicion of being forged and is such as is customary for people to enter their transactions therein. For instance, official documents and the records of a Court of Justice can be accepted. Books of accounts kept in the court of business and documents executed in the presence of two witnesses are also admitted in evidence (Rahim, _loc. cit._ , citing "Fatawa" "Alamgiri", vol. iii, p. 534; Al Majallah, p. 297).

With the present trend in the modern world, official records or public documents are now admissible in evidence provided that it is completely devoid of forgery and falsification and is not fabricated to prejudice the interest of the other (Alauya, _op. cit._ , p. 55 citing Sabiq, vol. 3, p. 348).

Q: Explain estoppel.

**ANS:** The law sometimes does not allow evidence being given of a certain fact having regard to the conduct of the party desiring to adduce such evidence. This is called _bayanu'd darurat_ which corresponds to estoppel to the English law. For instance, if the owner of a certain property sees another person selling it and keeps quiet, he will not be allowed to prove that the man who purported to sell was not authorized by him to do so (Rahim, _op. cit._ , p. 382).

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### Section 18. Suppletory Rule in Special Offenses

Q: What should govern the form and head of special offenses?

**ANS:** The form and head of the cases and offenses cognizable by the Shari'a courts shall be in accordance with applicable laws and the Rules of Court. The principles of Muslim Law may be applied in a suppletory manner (Section 18, Special Rules).

Q: What are the special offenses cognizable by the Shari'a Circuit Court? (1999 Shari'a Bar)

**ANS:** The offenses under PD l083 cognizable by the Shari'a Courts are quite few, namely:

(1) Illegal solemnization of marriage (Art. l8l, PD l083);

(2) Marriage before expiration of _'idda_ (Art. l82, _Ibid._ );

(3) Offenses relative to subsequent marriage, divorce, and revocation of divorce (Art. l83, _Ibid._ );

(4) Failure to report for registration (Art. l84, _Ibid._ ); and

(5) Neglect of duty by registrars (Art. l85, _Ibid._ ).

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# PART IV

### ARBITRATION PROCEEDINGS

**Section 19. Agama Arbitration, how conducted**

Q: In what cases may the Agama Arbitration Council be formed under P.D. 1083? (1993 Shari'a Bar)

**ANS:** The Agama Arbitration Council shall be formed under the following cases:

(1) When the Muslim husband pronounces _talaq_ to his wife;

(2) When the husband desiring to contract a subsequent marriage file a written notice thereof and the wife or any of the wives objects; and

(3) In cases involving offenses against customary law which can be settled without formal trial.

Q: Who may constitute the Agama Arbitration Council and what certain cases may the Council appropriately consider? (1999 Shari'a Bar)

**ANS:** The Shari'a District Court or the Shari'a Circuit Court may, in appropriate cases, constitute an Agama Arbitration Council which shall be composed of the Clerk of Court as Chairman and two (2) representatives appointed by the court upon nomination by the parties.

The Council may appropriately consider the following cases:

(1) When the Muslim husband pronounces _talaq_ to his wife;

(2) When the husband desiring to contract a subsequent marriage file a written notice thereof and the wife or any of the wives objects; and

(3) In cases involving offenses against customary law which can be settled without formal trial.

Q: What are the functions of the Agama Arbitration Council? (1991, 1999 Shari'a Bar) How may the proceedings of the Agama Arbitration Council be conducted under the Special Rules of Procedure Governing the Shari'ah courts? (1993 Shari'a Bar)

**ANS:** The Agama Arbitration Council, after its constitution pursuant to the provisions of the Code of Muslim Personal Laws, shall conduct the arbitration proceedings in accordance with the method it deems appropriate, taking into consideration the circumstances of the dispute, the conciliation of the parties, the interests of the children, if any, and other third parties involved, and the need for a speedy settlement of the dispute. However, no arbitration proceedings shall take place _ex parte_ (Sec. 19, Special Rules).

### Section 20. Effectivity

Q: When did the special rules of procedure take effect?

**ANS:** The special rules of procedures took effect immediately upon its approval on September 20, 1983.

\---oOo---

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###  ABOUT THE AUTHOR

Mr. Gubat (Marvin to his friends) is holder of the degrees of Ph.D. in Educational Management, Master in Public Administration, Bachelor of Laws (cum laude), and BSBA Accounting. He passed the Philippine bar examinations and the Philippine CPA Licensure Examinations in 1989 and 1984, respectively.

He taught law at the Mindanao State University for more than 20 years and worked as government prosecutor for more than 16 years up to the present time.

His other books are: 1. The Revised Rules of Criminal Procedure Annotated; 2. The Special Rules of Procedure Governing the Shari'a Courts Annotated; and 3. Reviewer in Islamic Procedure and Evidence.

For further information, email the author at marvin_[myfamilyname]@yahoo.com

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###  OTHER BOOKS BY THE AUTHOR AT SMASHWORDS

1. The 1997 Rules of Civil Procedure Annotated

<http://www.smashwords.com/books/view/158751>

2. The Revised Criminal Procedure Annotated

<http://www.smashwords.com/books/view/163494>

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####
