Remedial Law Q n A

Remedial Law Bar Examination Examination Q & A (1997-2006)

by: by: [email protected] [email protected]

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ANSWERS TO BAR EXAMINATION QUESTIONS IN

REMEDIAL REMEDIAL LAW LAW ARRANGED BY TOPIC (1997 – 2006) Edited and Arranged by: version 1987-2003 1987-2003 Sii!"# U#i$%&'i C*%+% *, L"- B"./ 200

UPDATED BY:

Dondee The RE-Take 2007

From he A!"#ER" T$ BAR E%A&'!AT'$! (UE"T'$!" )* he UP +A# ,$&P+E%  Phi.i//ine +a "hoo.s Assoiaion 200 4.* 225 2007

Version 1997-2006 !dated "#

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F$R#ARD This work is not intended for sale or commerce. This work is freeware. It may be freely copied and distributed. It is prim primar aril ily y

inte intend nded ed for all all thos thosee who who desi desire re to have have a deep deeper er

understand understanding ing of the issues issues touched touched by the Philippin Philippinee Bar Eam Eamin inat atio ions ns

and and

its its

tren trend. d. It is spec specia iall lly y int inten ende ded d for for law law

studen students ts from the provinc provinces es who! who! very often! often! are recipie recipients nts of deliberate deliberately ly distorted distorted notes from other other unscrupulous unscrupulous law schools and stude students nts.. "hare to others others this this work work and you will be richly richly rewarded by #od #od in heaven. heaven. It is also very good karma. karma. $e would like to seek the indulgence indulgence of the reader for some Bar %uestions which are improperly classified under a topic and for some topics which are improperly or ignorantly phrased! for the authors are &ust Bar 'eviewees who have prepared this work while reviewing for the Bar Eams under time constraints and within their limited knowledge of the law. $e would like to seek the reader(s indulgence for a lot of typographical errors in this work.

The Authors )uly *+! *,,pdated by /ondee )uly **! *,,0


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TABLE O CONTENTS GENERAL PRINCIPLES PRINCIPLE S.....................................................................................................................8 Bar by Prior Judgment Judgment vs. Conclusiveness Conclusiveness of Judgment (1997 )................................................................. 8 Cause of action action vs. Action (1997 )........................................................................................................8 Civil Actions Actions vs. Secial Proceedings Proceedings (199!) ......................................................................................... 8 Conciliation Proceedings" #atarungang #atarungang Pambarangay vs. Pre$%rial Pre$%rial Conference (1999 ) (1999 ).................................... 8 &amily Courts Courts Act Act ('1 ).................................................................................................................. 8 nterlocutory *rder ('+ ('+ ).................................................................................................................8 Judgment vs. *inion *inion of t,e Court Court ('+ ).............................................................................................8 Judicial Autonomy Autonomy - martiality (' (' ) )............................................................................................... 8 #atarungang Pambarangay" Pambarangay" *b/ective *b/ective (1999)........................................................................................ 9 0iberal Construction" Construction" ules of Court Court (199! ) (199! ).......................................................................................... 9 emedial 0a2 in P,il. System of 3ov4t ('+ )........................................................................................ 9 emedial 0a2 vs. Substantive 0a2 ('+).............................................................................................9 emedial 0a2" 0a2" Concet ('+)...........................................................................................................9 ig,ts of t,e Accused" 5alidity" 5alidity" 65 %est %est (' )..................................................................................... 9

URISDICTION ...................................................................................................................................10 Jurisdiction (1997)........................................................................................................................ 10 Jurisdiction vs. 5enue ('+) ........................................................................................................... 10 Jurisdiction" Jurisdict ion" C%A 8ivision vs. C%A n Banc ('+ ) ('+ )................................................................................ 10 Jurisdiction" ncaable of Pecuniary stimation (' (' ) ).......................................................................... 10 Jurisdiction" ncaable of Pecuniary stimation (' (' ) ).......................................................................... 11 Jurisdiction" ncaable of Pecuniary stimation (' (' ) ).......................................................................... 11 Jurisdiction" :%C ('' ('' ).................................................................................................................11 Jurisdiction" *ffice of t,e Solicitor 3eneral ('+ ('+ ) )................................................................................ 11 Jurisdiction" *mbudsman *mbudsman Case 8ecisions 8ecisions ('+) ................................................................................. 12 Jurisdiction" Probate ('1 ('1 ) ).............................................................................................................12 Jurisdiction" %C ('' )................................................................................................................. 12 Jurisdiction" Subdivision Subdivision 6omeo2ner ('+ ) ('+ )....................................................................................... 12 #atarungang Pambarangay" Pambarangay" 0uon" ;tent of Aut,ority" ('1 ) ('1 )...............................................................13

CI3IL PROCEDURE PROCEDUR E..........................................................................................................................13 Actions" Cause of Action vs. Action (1999 ) (1999 )..........................................................................................13 Actions" Cause Cause of Action" Joinder - Slitting (199!) .............................................................................13 Actions" Cause of Action" Joinder of Action (1999 ) (1999 )................................................................................13 Actions" Cause of Action" Joinder of Action (' )................................................................................13 Actions" Cause of Action" Action" Slitting (1999 )........................................................................................... 14 Actions" Cause of Action" Action" Slitting (' )........................................................................................... 14 Actions" Cause of Actions" Actions" :otion to 8ismiss" bar by rior /udgment ('' ) ('' )............................................... 14 Actions" Counterclaim Counterclaim ('') ('') ...........................................................................................................14 Actions" Counterclaim Counterclaim vs. Crossclaim Crossclaim (1999) .......................................................................................15 Actions" Cross$Claims" Cross$Claims" %,ird Party Claims (1997) (1997) .................................................................................15 Actions" 8erivative Suit vs. Class Suit (' ).......................................................................................16 Actions" &iling" Civil Actions Actions - Criminal Action (' )........................................................................... 16 Actions" ntervention" ntervention" e
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Remedial Law Bar Examination Q & A (1997-2006)

by: [email protected]

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8efault" emedies" Party 8eclared in 8efault ('+) .............................................................................. 19 8efault" emedies" Substantial Comliance (') ............................................................................... 20 8emurrer to vidence ('1 )............................................................................................................20 8emurrer to vidence" Civil Case vs. Criminal Case (' )..................................................................... 20 8iscovery" :odes of 8iscovery (' )............................................................................................... 20 8iscovery" :odes" Suboena 8uces %ecum (1997) ............................................................................... 21 8iscovery" Production and nsection of 8ocuments ('') ....................................................................21 8ismissal" :otion to 8ismiss" es Judicata (') ............................................................................... 21 vidence" Admissibility" P,otocoies (' )....................................................................................... 22 &orum S,oing" 8efinition ('+) ....................................................................................................22 &orum S,oing" ffects" 0ac> of Certification ('+)........................................................................... 22 3en. Princiles" ?uestions of 0a2 vs. ?uestions of &act ('=) ............................................................... 22 Judgment" Annulment of Judgment" 3rounds (199! )............................................................................. 22 Judgment" nforcement" $year eriod (1997 )......................................................................................22 Judgment" nforcement" &oreign Judgment (' )............................................................................... 22 Judgment" ;ecution ending Aeal ('' )....................................................................................... 23 Judgment" nterlocutory *rder" Partial Summary Judgments ('= )..........................................................23 Judgment" Judgment on t,e Pleadings (1999 )......................................................................................23 Judgment" Judgment on t,e Pleadings (' )......................................................................................24 Judgment" :andamus vs. ?uo @arranto ('1 )....................................................................................24 Judgment" Soundness" Attac,ment ('' ).......................................................................................... 24 Judgments" nforcement" ;amination of 8efendant ('' )....................................................................24 Jurisdiction" 6abeas Corus" Custody of :inors (') ......................................................................... 25 Jurisdiction" 0ac> of Jurisdiction" Proer Action of t,e Court ('=) ......................................................... 25 Parties" 8eat, of a Party" ffect (199!)............................................................................................... 25 Parties" 8eat, of a Party" ffect (1999)............................................................................................... 25 Parties" 8eat, of a Party" ffect (1999)............................................................................................... 26 Parties" %,ird Party Claim (' ).......................................................................................................26 Parties" %,ird$Party Claim (' )...................................................................................................... 26 Petition for Certiorari (') ............................................................................................................ 26 Petition for elief - Action for Annulment ('') .................................................................................. 27 Petition for elief" n/unction ('' )...................................................................................................27 Pleadings" Amendment of Comlaint" By 0eave of Court (') ............................................................... 27 Pleadings" Amendment of Comlaint" By 0eave of Court" Prescritive Period (' ).....................................27 Pleadings" Amendment of Comlaint" :atter of ig,t (' )................................................................... 28 Pleadings" Amendment of Comlaint" %o Conform 2 vidence ('= )....................................................... 28 Pleadings" Ans2er" 8efense" Secific 8enial ('= ).............................................................................. 28 Pleadings" Certification Against &orum S,oing (') ........................................................................ 29 Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('= ).......................................................... 29 Pleadings" :otions" Bill of Particulars (') .......................................................................................29 Pleadings" ely" ffect of on$&iling of ely (' )............................................................................29 Pre/udicial ?uestion" /ectment vs. Secific Performance (') ..............................................................30 Pre$%rial" e
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Provisional emedies" %* vs. Status ?uo *rder ('+ )........................................................................ 33 Provisional emedies" %*" CA Justice 8et. ('+) .............................................................................33 Provisional emedies" %*" 8uration ('+ )....................................................................................... 33 eglementary Period" Sulemental Pleadings (' )........................................................................... 33 emedies" Aeal to SC" Aeals to CA ('' ).................................................................................... 33 emedies" Aeal" %C to CA (1999 )................................................................................................. 33 emedies" Aeal" ule = vs. ule + (1999 )...................................................................................... 34 emedies" 5oid 8ecision" Proer emedy ('= )..................................................................................34 Secial Civil Action" /ectment (1997 )................................................................................................ 35 Secial Civil Action" /ectment (199! )................................................................................................ 35 Secial Civil Action" &oreclosure (' )............................................................................................. 35 Secial Civil Action" Petition for Certiorari ('' )..................................................................................35 Secial Civil Action" ?uo @arranto ('1 )........................................................................................... 36 Secial Civil Actions" :andamus ('+ )............................................................................................. 36 Summons.....................................................................................................................................36 Summons (1999)...........................................................................................................................37 Summons" Substituted Service ('= )................................................................................................37 Summons" 5alidity of Service" ffects ('+ )....................................................................................... 37 5enue" mroer 5enue" Comulsory Counterclaim (199!) ......................................................................38 5enue" Personal Actions (1997)........................................................................................................ 38

CRIMINAL PROCEDURE..................................................................................................................38 Ac
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Jurisdiction" &inality of a Judgment (') ..........................................................................................47 Parties" Prosecution of *ffenses (' )..............................................................................................47 Plea of 3uilty" to a 0esser *ffense ('')............................................................................................47 Pre/udicial ?uestion (1999 )..............................................................................................................47 Pre/udicial ?uestion (' )..............................................................................................................47 Pre/udicial ?uestion" Susension of Criminal Action (1999) .................................................................... 48 Pre$%rial Agreement ('=).............................................................................................................. 48 Pre$%rial" Criminal Case vs. Civil Case (1997) .......................................................................................48 Provisional 8ismissal ('' )............................................................................................................48 emedies" 5oid Judgment ('= )......................................................................................................48 Searc, @arrant" :otion to ?uas, (' ).............................................................................................49 %rial" %rial in Absentia" Automatic evie2 of Conviction (199!) ................................................................ 49 5enue (1997 )................................................................................................................................49

E3IDENCE ......................................................................................................................................... 50 Admissibility (199! ).......................................................................................................................50 Admissibility ('' ).......................................................................................................................50 Admissibility ('= ).......................................................................................................................50 Admissibility" Admission of 3uilt" e %5 (' ).............................................................60 @itness" ;amination of @itnesses (1997 ).......................................................................................... 60 Version 1997-2006 !dated "#

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@itness" ;amination of @itnesses ('' ).......................................................................................... 60 @itness" Dtilied as State @itness" Procedure ('+) ............................................................................ 60

SPECIAL PROCEEDINGS................................................................................................................ 61 Cancellation or Correction" ntries Civil egistry (') ........................................................................ 61 sc,eat Proceedings ('' )............................................................................................................ 61 ;tra$/udicial Settlement of state (')............................................................................................61 6abeas Corus (199 )....................................................................................................................61 6abeas Corus (199! )....................................................................................................................61 6abeas Corus (' )....................................................................................................................62 ntestate Proceedings ('' )............................................................................................................62 ntestate Proceedings" 8ebts of t,e state ('')................................................................................. 62 Judicial Settlement of state (') ...................................................................................................62 Probate of 0ost @ills (1999).............................................................................................................62 Probate of @ill (').....................................................................................................................63 Probate of @ill (').....................................................................................................................63 Probate of @ill ('+).....................................................................................................................63 Probate of @ill" :andatory ature ('' )............................................................................................ 63 Settlement of state ('1 )..............................................................................................................64 Settlement of state" Administrator (199! ).......................................................................................... 64 5enue" Secial Proceedings (1997 )....................................................................................................64

SUMMARY PROCEDURE................................................................................................................. 65 Pro,ibited Pleadings ('=).............................................................................................................65

MISCELLANEOUS ............................................................................................................................. 65 Administrative Proceedings (') ....................................................................................................65 Congress" 0a2 ;roriating Proerty ('+) ......................................................................................65 A 19" :andatory Susension ('1 )..............................................................................................66


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new Rule 39).

Cause of action vs. Action (1997)

Distinguish Cause of action from action SUGGESTED ANSWER4

A CA!" #$ AC%&#' is an act or omission of one party in violation of the legal right or rights of the other (Maao Sugar Central vs. Barrios, 79 Phil. 606; Sec. 2 of new ule 2!, causing damage to another.

An AC%&#' is an ordinary suit in a court of (ustice by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong. (Section 1 of former Rule 2).

Civil Actions vs. Secial Proceedings (199!)

Distinguish civil actions from special proceedings. )*+ SUGGESTED ANSWER4

A C&& AC%&#' is one by which a party sues another for the enforcement or protection of a right,

or the prevention or redress of a wrong. while a !/"C&A

/0#C""D&'1 is a remedy by which a party see2s to establish a status, a right or a particular fact. (Sec. 3[C]. Rule 1,1997 Rules of Ciil !roce"ure.)

1, 1997 Rules !roce"ure),

of

Ciil

(See. 3[%], Rule


GENERAL PRINCIPLES Bar by Prior Judgment vs. Conclusiveness of Judgment (1997)

Distinguish Bar by prior judgment from conclusiveness of judgment SUGGESTED ANSWER4

Bar by prior-judgment is the doctrine of res judicata, which bars a second action when there is identity of parties, subject matter and cause of action. (Sec. 49[b] of former Rule 39; Sec, 47 [b] of new Rule 39).

Conclusiveness of judgment precludes the relitigation of a particular issue in another action between the same parties on a dierent cause of action. (Sec. 49 [c] of former Rule 39; sec. 47 [c] of

Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999) 3hat is the dierence, if any, between the conciliation proceedings under the 4atarungang /ambarangay aw and the negotiations for an amicable settlement during the pre-trial conference under the 0ules of Court5 67+8 SUGGESTED ANSWER4

%he dierence between the conciliation proceedings under the 4atarungang /ambarangay aw and the negotiations for an amicable settlement during the pre-trial conference under the 0ules of Court is that in the former, lawyers are prohibited from appearing for the parties. /arties must appear in person only e9cept minors or incompetents who may be assisted by their ne9t of 2in who are not lawyers. (#ormerl$ Sec. 9,


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66 !.&. 'o. 1*; Sec. 41, +oc%l oernment Co"e of 1991, R.-. 71.)

'o such prohibition e9ists in the pre-trial negotiations under the 0ules of Court. &amily Courts Act ('1)

a8:ow should the records of child and family cases in the $amily Courts or 0%C designated by the !upreme Court to handle $amily Court cases be treated and dealt with5 6*+8 b8nder what conditions may the identity of parties in child and family cases be divulged 67+8

proved and the law upon which the judgment is based (4toa v. )3raha Singson, )#. Matter %o. 5-9&7*/, Se$te3er 26, &99'!.

An opinion of the court is the informal e9pression of the views of the court and cannot prevail against its ;nal order. %he opinion of the court is contained in the body of the decision that serves as a guide or enlightenment to determine the r%tio "eci"en"i of the decision. %he opinion forms no part of the judgment even if combined in one instrument, but may be referred to for the purpose of construing the judgment (Contreras v. eli, ".. %o. 8'77, -une 0,

&9'7!.

Judicial Autonomy - martiality (')

SUGGESTED ANSWER4

a8%he records of child and family cases in the $amily Code to handle $amily Court cases shall be dealt with utmost con;dentiality. (Sec. 12, #%mil$ Courts -ct of 1997)

b8 %he identity of parties in child and family cases shall not be divulged unless necessary and with authority of the judge. (/".) nterlocutory *rder ('+)

3hat is an interlocutory order5 67+8 SUGGESTED ANSWER4

An interlocutory order refers to an order issued between the commencement and the end of the suit which is not a ;nal decision of the whole controversy and leaves something more to be done on its merits ("allar#o et al. v. Peo$le, ".. %o. &'200, )$ril 2&, 200*; +nvestents +nc. v. Court of )$$eals, ".. %o. 6006, -anuar 27, &9/7 cite# in enso Phils, v. 1)C, ".. %o. 7*000, e3. 27, &9/7!.

Judgment vs. *inion of t,e Court ('+)

3hat is the dierence between a judgment and an opinion of the court5 67.<+8 SUGGESTED ANSWER4

%he judgment or fallo is the ;nal disposition of the Court which is re=ected in the dispositive portion of the decision. A decision is directly prepared by a judge and signed by him, containing clearly and distinctly a statement of the facts

Version 1997-2006 !dated "# Dondee


&n rendering a decision, should a court ta2e into consideration the possible eect of its verdict upon the political stability and economic welfare of the nation5 >+ SUGGESTED ANSWER4

'o, because a court is re?uired to ta2e into consideration only the legal issues and the evidence admitted in the case. %he political stability and economic welfare of the nation are e9traneous to the case. %hey can have persuasive in=uence but they are not the main factors that should be considered in deciding a case. A decision should be based on the law, rules of procedure, justice and e?uity. :owever, in e9ceptional cases the court may consider the political stability and economic welfare of the nation when these are capable of being ta2en into judicial notice of and are relevant to the case. #atarungang Pambarangay" *b/ective (1999)

3hat is the object of the 4atarungang /ambarangay aw5 67+8 SUGGESTED ANSWER4

%he object of the 4atarungang /ambarangay aw is to eect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and conse?uently help relieve the courts of doc2et congestion. (!re%mble of !.&. 'o. 1*, t0e former %n" t0e rst %t%run%n !%mb%r%n%$ +%w.)

0iberal Construction" ules of Court (199!) :ow shall the 0ules of Court be construed5 )7+ SUGGESTED ANSWER4

%he 0ules of Court should be liberally construed in order to promote their objective of securing a just, speedy and ine9pensive disposition of every action and proceeding. (Sec. , Rule 1 1997 Rules of Ciil !roce"ure.) ADDITIONAL ANSWER4

:owever, strict observance of the rules is an imperative necessity when they are considered indispensable to the prevention of needless delays and to the orderly and speedy dispatch of (udicial business . ()lvero vs. -u#ge #e la osa, 76 Phil. '2/!

emedial 0a2 in P,il. System of 3ov4t ('+)

:ow are remedial laws implemented in our system of government5 67+8 SUGGESTED ANSWER4

0emedial

laws

are

implemented

in

our system of government through the pillars of the judicial system, including the prosecutory service, our courts of justice and ?uasi judicial agencies. emedial 0a2 vs. Substantive 0a2 ('+)

Distinguish between substantive law and remedial law. 67+8 SUGGESTED ANSWER4

!B!%A'%&" A3 is that part of the law which creates, de;nes and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public


Page 9 of 66

aairs. %his is distinguished from 0"@"D&A A3 which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v. 8ucero, ".. %o. 8206/, cto3er 20, &9'/!.

emedial 0a2" Concet ('+)

3hat is the concept of remedial law5 67+8 SUGGESTED ANSWER4

%he concept of 0emedial aw lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon in?uiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered ()l3ert v. :niversit Pu3lishing,

".. %o. 8&9&&/, -anuar 0, &96*!.

0emedial aw is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasion (Bustos v. 8ucero, ".. %o. 8206/, cto3er 20, &9'/; irst 8e$anto Ceraics, +nc. v. C), ".. %o. &&0*7&, March &0, &99'!.

ig,ts of t,e Accused" 5alidity" 65 %est (') nder 0epublic Act 'o. *<*, one may be charged with and found guilty of ?uali;ed rape if he 2new on or before the commission of the crime that he is aicted with :uman &mmuno-De;ciency irus 6:&8Ac?uired &mmune De;ciency !yndrome 6A&D!8 or any other se9ually transmissible disease and the virus or disease is transmitted to the victim. nder

!ection E6a8 of 0epublic Act 'o.  the court may compel the accused to submit himself to a blood test where blood samples would be e9tracted from his veins to determine whether he has :&. 6+8

a! )re the rights of the accuse# to 3e $resue# innocent of the crie charge#, to $rivac, an# against selfincriination violate# 3 such co$ulsor testing 4$lain. SUGGESTED ANSWER4

'o. %he court may compel the accused to submit himself to a blood test to determine whether he has :& under !ec. E6a8 of 0.A. 'o, F<>. :is rights to be presumed innocent of the crime charged, to privacy and against selfincrimination are not violated by such compulsory testing. &n an action in which the physical condition of a party is in controversy, the court may order the accused to submit to a physical e9amination. (Sec. 1, Rule 2*, 1997 Rules of Ciil !roce"ure) (+oo for cit%tion of l%test c%se, in 24)

3! +f the result of such test shows that he is <+= $ositive, an# the $rosecution o>ers such result in evi#ence to $rove the ?ualifing circustance un#er the +nforation for ?uali@e# ra$e, shoul# the court reAect such result on the groun# that it is the fruit of a $oisonous tree 4$lain. SUGGESTED ANSWER4

!ince the rights of the accused are not violated because the compulsory testing is authoriGed by the Version 1997-2006 !dated "#

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law,

the result of the testing cannot be considered to be the fruit of a poisonous tree and can be oered in evidence to prove the ?ualifying circumstance under the information for ?uali;ed rape under 0.A. 'o. *<*. %he fruit, of the poisonous tree doctrine refers to that rule of evidence that e9cludes any evidence which may have been derived or ac?uired from a tainted or polluted source. !uch evidence is inadmissible for having emanated from spurious origins. %he doctrine, however, does not apply to the results obtained pursuant to !ec. , 0ule 7, HHE 0ules of Civil /rocedure, as it does not contemplate a search within the moaning of the law. (Peo$le v. Montilla, ".. %o. &2/72, -anuar 0,&99/!

URISDICTION Jurisdiction (1997)

3hat courts have jurisdiction over the following cases ;led in @etro @anila5 a8 An action for speci;c performance or, in the alternative, for damages in the amount of /F,FFF.FF b8 An action for a writ of injunction. c8 An action for replevin of a motorcycle valued at /
6a8 An action for speci;c performance or, in the alternative, for damages in the amount of F,FFF.FF falls within the jurisdiction of @etropolitan %rial Courts in @etro @anila. Although an action for speci;c performance is not capable of pecuniary estimation, since the alternative demand for damages is capable of pecuniary estimation, it is within the jurisdiction of the @etropolitan %rial Courts in @etro @anila. (Sec.  of BP &29 as aen#e# 3 ) %o. 769&

Cru us. 5an, /7 Phil. 627D.

6b8 An action for injunction is not

capable of pecuniary estimation and hence falls within the jurisdiction of the 0%Cs. 6c8 An action for replevin of a motorcycle valued at 
6d8 An action for interpleader to determine who between the defendants is entitled to receive the amount of /HF,FFF.FF falls within the jurisdiction of the @etropolitan %rial Courts in @etro @anila. (MaEati ev Cor$. v. 5anAuatco 27 SC) '0&!


Page 10 of

66 6e8 A petition for the probate of a will involving an estate valued at 7FF.FFF.FF falls within the (urisdiction of the @etropolitan %rial Courts in @etro @anila (Sec. &9F'D of BP &29, as aen#e#!. ADDITIONAL ANSWER4

6b8 An application for a writ of preliminary injunction may be granted by a @unicipal Court in an action of forcible entry and unlawful detainer. (Sec. of BP &29; a vs. 5C of Ga3oanga, &9& SC)6&0.

Jurisdiction vs. 5enue ('+)

Distinguish jurisdiction from venue5 67+8 SUGGESTED ANSWER4

(0&!D&C%&#' treats of the power of the Court to decide a case on the merits, while "'" refers to the place where the suit may be ;led. &n criminal actions, however, venue is jurisdictional. (urisdiction is a matter of substantive lawI venue, of procedural law. (urisdiction may be not be conferred by consent through waiver upon a court, but venue may be waived, e9cept in criminal cases (%ocu et al. v. 5an,

".. %o. &'*022, Se$te3er 2, 200*; Santos +++ v. %orthwest )irlines, ".. %o. &0&*/, -une 2, &992!.

Jurisdiction" C%A 8ivision vs. C%A n Banc ('+)

@ar2 ;led with the Bureau of &nternal 0evenue a complaint for refund of ta9es paid, but it was not acted upon. !o, he ;led a

similar complaint with the Court of %a9 Appeals raed to one of its Divisions. @ar2Js complaint was dismissed. %hus, he ;led with the Court of Appeals a petition for certiorari under 0ule K<. Does the Court of Appeals have jurisdiction over @ar2Js petition5 67.<+8 SUGGESTED ANSWER4

'o. %he procedure is governed by !ec.  of 0. A. H77. Decisions of a division of the Court of %a9 Appeals must be appealed to the Court of %a9 Appeals en banc. $urther, the C%A now has the same ran2 as the Court of Appeals and is no longer considered a ?uasi-judicial agency. &t is li2ewise provided in the said law that the decisions of the C%A en bane are cogniGable by the !upreme Court under 0ule >< of the HHE 0ules of Civil /rocedure. Jurisdiction" ncaable of Pecuniary stimation (') A brings an action in the @%C of @anila against B for the annulment of an e9trajudicial foreclosure sale of real property with an assessed value of /
%he motion should be granted. %he @%C of @anila has no jurisdiction because the action for the annulment of the e9trajudicial foreclosure is not capable of pecuniary estimation and is therefore


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under the jurisdiction of the 0%Cs. (ussell v. =estil, 0' SC) 7/,F&999D!.

:owever, the action for annulment is a personal action and the venue depends on the residence of either A or B. :ence, it should be brought in the 0%C of the place where either of the parties resides. Jurisdiction" ncaable of Pecuniary stimation (')

A ;les an action in the @unicipal %rial Court against B, the natural son of ALs father, for the partition of a parcel of land located in %aytay, 0iGal with an assessed value of /7F,FFF.FF. B moves to dismiss the action on the ground that the case should have been brought in the 0%C because the action is one that is not capable of pecuniary estimation as it involves primarily a determination of hereditary rights and not merely the bare right to real property. 0esolve the motion. 67+8

was still pending. 6a83as the denial of the @otion to Dismiss the Complaint correct5 6b80esolve the @otion to Declare the Defendant in Default. SUGGESTED ANSWER4

6a8 %he denial of the @otion to Dismiss the Complaint was not correct. Although the assessed value of the parcel of land involved was /H,FFF.FF, within the jurisdiction of the @%C of @anila, the action ;led by A for !peci;c /erformance against B to compel the latter to e9ecute a Deed of Conveyance of said parcel of land was not capable of pecuniary

SUGGESTED ANSWER4

%he motion should be granted. %he action for partition depends on a determination of the hereditary rights of A and B, which is not capable of pecuniary estimation. :ence, even though the assessed value of the land is /7F,FFF.FF, the @unicipal %rial Court has no jurisdiction. (ussell v. =estil, su$ra!

Jurisdiction" ncaable of Pecuniary stimation (') A ;led with the @%C of @anila an action for speci;c performance against B, a resident of MueGon City, to compel the latter to e9ecute a deed of conveyance covering a parcel of land situated in MueGon City having an assessed value of pH,FFF.FF. B received the summons and a copy of the Complaint on F7 (anuary 7FF*. #n F (anuary 7FF*, B ;led a @otion to Dismiss the Complaint on the ground of lac2 of jurisdiction contending that the subject matter of the suit was incapable of pecuniary estimation. %he court denied the motion. &n due time, B ;led with the 0%C a /etition for Certiorari praying that the said #rder be set aside because the @%C had no jurisdiction over the case. K+

#n * $ebruary 7FF*, A ;led with the @%C a motion to declare B in default. %he motion was opposed by B on the ground that his /etition for Certiorari

(Rule 3, sec. ). Flores v. Mallare Phili$$s,

Page 11 of 66 estimation and, therefore, the action was within the jurisdiction of 0%C. (ussel v. =estil,


0' SC) 7/

F&999D; Co$ioso v. Co$ioso, ".. %o. &'92', cto3er 2/,2002; Ca3utihan v. 8an#center Construction, / SC) * F2002D!. ALTERNATI3E ANSWER4

&f the action aects title to or possession of real property then it is a real action and jurisdiction is determined by the assessed value of the property. &t is within the jurisdiction therefore of the @etropolitan %rial Court.

/ sued A and B in one complaint in the 0%C-@anila, the cause of action against A being on an overdue promissory note for /*FF,FFF.FF and that against B being on an alleged balance of /*FF,FFF.FF on the purchase price of goods sold on credit. Does the 0%C-@anila have jurisdiction over the case5 "9plain. 6*+8 SUGGESTED ANSWER4

'o, the 0%C-@anila has no jurisdiction over the case. A and B could not be joined as defendants in one complaint because the right to relief against both defendants do not arise out of the same transaction or series of transactions and there is no common

?uestion of law or fact common to both. SUGGESTED ANSWER4

6b8 %he Court could declare B in default because B did not obtain a writ of preliminary injunction or a temporary restraining order from the 0%C prohibiting the judge from proceeding in the case during the pendency of the petition for certiorari. (Sec. 7 of ule 6*; ia v. ia, & SC) 02 F2002D. ALTERNATI3E ANSWER4

%he Court should not declare B in default inasmuch as the jurisdiction of @%C was put in issue in the /etition $or Certiorari ;led with the 0%C. %he @%C should defer further proceedings pending the result of (4ternal "ar#ens such petition. Meorial

ParE

Cor$oration v. Court of )$$eals, &6' SC) '2& F&9//D!.

:ence, separate complaints will have to be ;les and they would fall under the jurisdiction of the @etropolitan %rial Court. &'' SC) 77 (&9/6!D.

Jurisdiction" *ffice of t,e Solicitor 3eneral ('+) &n HHK, Congress passed 0epublic Act 'o. H, otherwise 2nown as the oterJs 0egistration Act of HHK, providing for computeriGation of elections. /ursuant thereto, the C#@""C approved the oterJs 0egistration and &denti;cation !ystem 60&!8 /roject. &t issued invitations to pre-?ualify and bid for the project. After the public bidding, $oto2ina was declared the winning bidder with a bid of /K billion and was issued a 'otice of Award. But C#@""C Chairman 1ener 1o objected to the award on the ground that under the Appropriations Act, the budget for the C#@""CJs moderniGation is only /

Jurisdiction" :%C ('') Version 1997-2006 !dated "#

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billion. :e announced to the public that the 0&! project has been set aside. %wo Commissioners sided with Chairman 1o, but the majority voted to uphold the contract. @eanwhile, $oto2ina ;led with the 0%C a petition for mandamus compel the C#@""C to implement the contract. %he #ice of the !olicitor 1eneral 6#!18, representing Chairman 1o, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners ;led a manifestation that Chairman 1o was not authoriGed by the C#@""C "n Banc to oppose the petition. Ma the S" re$resent Chairan "o 3efore the 5C notwithstan#ing that his $osition is contrar to that of the aAorit (*H! SUGGESTED ANSWER4

Nes, the #!1 may represent the C#@""C Chair- man before the 0%C notwithstanding that his position is contrary to that of a majority of the Commission members in the C#@""C because the #!1 is an independent oiceI itJs hands are not shac2led to the cause of its client agency. %he primordial concern of the #!1 is to see to it that the best interest of the government is upheld (CM484C v. IuanoPa#illa, Se$te3er &/, 2002!.

Jurisdiction" *mbudsman Case 8ecisions ('+)

Does the Court of Appeals have jurisdiction to review the Decisions in criminal and administrative cases of the #mbudsman5 67.<+8 SUGGESTED ANSWER4

%he !upreme Court has e9clusive appellate jurisdiction over decisions of the #mbudsman in criminal cases (Sec. 14, R.-. 77) . &n administrative and disciplinary cases, appeals from the #mbudsman must be ta2en to the Court of Appeals under 0ule >* (8anting v. 3u#san, ".. %o. &'&'26, Ma 6, 200*; a3ian v. esierto, ".. %o. &297'2, Se$te3er &6, &99/; Sec. &', ). 6770!.

Jurisdiction" Probate ('1) (osefa ;led in the @unicipal Circuit %rial Court of Alicia and @abini, a petition for the probate of the will of her husband, @artin, who died in the @unicipality of Alicia, the residence of the spouses. %he

probable value of the estate which consisted mainly of a house and lot was placed at /H<,FFF.FF and in the petition for the allowance of the will, attorneyLs fees in the amount of /F,FFF.FF, litigation e9penses in the amount of /<,FFF.FF and costs were included. /edro, the ne9t of 2in of @artin, ;led an opposition to the probate of the will on the ground that the total amount included in the relief of the petition is more than /FF,FFF.FF, the ma9imum jurisdictional amount for municipal circuit trial courts. %he court overruled the opposition and proceeded to hear the case.


3as the municipal

Page 12 of 66 circu tria court correct in it l its

ruling5 3hy5 6<+8 SUGGESTED ANSWER4

Nes, the @unicipal Circuit %rial Court was correct in proceeding to hear the case. &t has e9clusive jurisdiction in all matters of probate, both testate and intestate, where the value of the estate does not e9ceed /FF,FFF.FF 6now /7FF,FFF.FF8. %he value in this case of /H<,FFF.FF is within its jurisdiction. &n determining the jurisdictional amount, e9cluded are attorneyLs fees, litigation e9penses and costsI these are considered only for determining the ;ling fees. (5.!.5l. 129, Sec. 33, %s %men"e")

Jurisdiction" %C ('')

/ sued A in the 0%C-@anila to recover the following sumsO 68 /7FF,FFF.FF on an overdue promissory note, 678 /F,FFF.FF on the purchase price of a computer, 6*8 /8 /FF,FFF.FF for attorneyLs fees and litigation e9penses. Can A move to dismiss the case on the ground that the court has no jurisdiction over the subject matter5 "9plain. 67+8 SUGGESTED ANSWER4

'o, because the 0%C-@anila has jurisdiction over the subject matter. / may sue A in one complaint asserting as many causes of action as he may have and since all the

claims are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. [Rule 2, sec. (")]. %he aggregate amount claimed is />
3hat court has jurisdiction over an action for speci;c performance ;led by a subdivision homeowner against a subdivision developer5 Choose the correct answer. "9plain. . %he :ousing and and se 0egulatory Board 7. %he !ecurities and "9change Commission *. %he 0egional %rial Court >. %he Commercial Court or the 0egional %rial Court designated by the !upreme Court to hear and decide Pcommercial cases.P SUGGESTED ANSWER4

An action for speci;c performance by a subdivision homeowner against a subdivision developer is within the jurisdiction of the :ousing and and se 0egulatory Board. !ec.  of /.D. *>> provides that the :0B has jurisdiction over cases involving speci;c performance of contractual and statutory obligations ;led by buyers of subdivision lots and condominium units against the owner, developer, dealer, bro2er or salesman (Manila BanEers 8ife

+nsurance Cor$. v. 4## %g JoE Kei, ".. %o. &979&, ece3er &2, 200; JaEilala v. araon, ".. %o. &'2, cto3er &/, 200'; Sec. &, P.. &''!. Version 1997-2006 !dated "#

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because the e9ecution sought is already beyond the period of si9 months from the date of the settlement within which the upon is authoriGed to e9ecute. (Sec. 417, +oc%l oernment Co"e of 1991)

b8 After the si9-month period, the prevailing party should move to e9ecute the settlementagreement in the appropriate city or municipal trial court. 6&d.8

CI3IL PROCEDURE Actions" Cause of Action vs. Action (1999)

Distinguish action from cause of action. 67+8 SUGGESTED ANSWER4

An AC%&#' 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(-), Rule ) A CA!" #$ AC%&#' is the act or omission by

which a party violates a right of another. )n action ust 3e 3ase# (Sec. , Rule 2 of t0e 1997

on a cause of action. (Sec. 1, Rule 2 of t0e 1997 Rules) Actions" Cause of Action" Joinder - Slitting (199!) (Sec. 2, Rule 2

of t0e 1997 Rules) Remedial Law Bar Examination Q & A (1997-2006)

#atarungang Pambarangay" 0uon" ;tent of Aut,ority" ('1)

An amicable settlement was signed before a upon %agapamayapa on (anuary *, 7FF. #n (uly K, 7FF, the prevailing party as2ed the upon to e9ecute the amicable settlement because of the non-compliance by the other party of the terms of the agreement. %he upon concerned refused to e9ecute the settlementagreement. a8 &s the upon correct in refusing to e9ecute the settlementagreement5 6*+8 b8 3hat should be the course of action of the prevailing party in such a case5 67+8 SUGGESTED ANSWER4

a8 Nes, the upon is correct in refusing to e9ecute the settlementagreement

1ive the eects of the followingO . !plitting a single cause of actionO and 6*+Q 7. 'on-joinder of a necessary party. )7+ SUGGESTED ANSWER4

. %he eect of splitting a single cause of action is found in the rule as followsO &f two or more suits are instituted on the basis of the same cause of action, the ;ling of one or a judgment on the merits in any one is available as a ground for the dismissal of the others. (Sec. 4 of Rule 2)

7.

%he eect of the non-joinder of a necessary party may be stated as followsO %he court may order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained. %he failure to comply with the order for his inclusion without justi;able cause to a waiver of the claim against such party. %he court may proceed with the action but the judgment rendered shall be without


Page 13 of 66

prejudice to the rights of each necessary party. (Sec. 9 of Rule 3) Actions" Cause of Action" Joinder of Action (1999)

a8 3hat is the rule on joinder of causes of action5 67+8 b8 A secured two loans from B5 one for /
for the recovery of both loans5 "9plain. 67+8 SUGGESTED ANSWER4

a. %he rule on (#&'D"0 #$ CA!"! #$ AC%&#' is that a party may in one pleading assert, in the alternative or otherwise join as many causes of action as he may have against an opposing party, provided that the rule on joinder of parties is complied withI . the joinder shall not include special civil actions or actions governed by special rules, but may include causes of action pertaining to dierent venues or jurisdictions provided one cause of action falls within the jurisdiction of a 0%C and venue lies thereinI and 7. the aggregate amount claimed shall be the test of jurisdiction where the claims in all the causes of action are principally for the recovery of money. Rules)

b. 'o. (oinder is only permissive since the loans are separate loans which may be governed by the dierent terms and conditions. %he two loans give rise to two separate causes of action and may be the basis of two separate complaints. Actions" Cause of Action" Joinder of Action (')

/erry is a resident of @anila, while 0ic2y and @arvin are residents of Batangas City. %hey are the coowners of a parcel of residential land located in /asay City with an assessed value of /FF,FFF.FF. /erry borrowed /FF,FFF.FF from 0ic2y which he promised to pay on or before December , 7FF>. :owever, /erry failed to pay his loan. /erry also rejected 0ic2y and @arvinJs proposal to

partition the property. 0ic2y ;led a complaint against /erry and @arvin in the 0%C of /asay City for the partition of the property. :e also incorporated in his complaint his action against /erry for the collection of the latterJs /FF,FFF.FF loan, plus interests and attorneyJs fees. !tate with reasons whether it was proper for 0ic2y to join his causes of action in his complaint for partition against /erry and @arvin in the 0%C of /asay City. 6<+8 SUGGESTED ANSWER4

Version 1997-2006 !dated "# Dondee


waived his right to foreclose the mortgage. B split his cause of action.

&t was not proper for 0ic2y to join his causes of action against /erry in his complaint for partition against /erry Actions" Cause of Action" Slitting (') and @arvin. %he causes of action may be 0aphael, a warehouseman, ;led a complaint between the same parties, 0ic2y and against  Corporation, R Corporation and Corporation to compel them to /erry, with respect to the loan but not N with respect to the partition which interplead. :e alleged therein that the includes @arvin. %he joinder is three corporations claimed title and right between a partition and a sum of of possession over the goods deposited in money, but /A0%&%&#' is a special civil his warehouse and that he was uncertain action under 0ule KH, which cannot be which of them was entitled to the goods. joined with other causes of action. (See. After due proceedings, judgment was rendered by the court declaring that R [b], Rule 2,) Also, the causes of action pertain to dierent venues and Corporation was entitled to the goods. %he jurisdictions. %he case for a sum of money decision became ;nal and e9ecutory. pertains to the municipal court and cannot be ;led in /asay City because the plainti is from @anila while 0ic2y and @arvin are from Batangas Cit$. (Sec. , Rule 2,)

Actions" Cause of Action" Slitting (1999)

a8 3hat is the rule against splitting a cause of action and its eect on the respective rights of the parties for failure to comply with the same5 67+8 b8 A purchased a lot from B for /l,
judgment. 0ule on the motion. 67+8 SUGGESTED ANSWER4

a. %he rule against splitting a cause of action and its eect are that if two or more suits are instituted on the basis of the same cause of action, the ;ling of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. (Sec. 4, Rule 2) b. %he motion to dismiss should be granted. 3hen B commenced suit to collect on the promissory note, he


Page 14 of 66

0aphael ;led a complaint against R Corporation for the payment of /FF,FFF.FF for storage charges and other advances for the goods. R Corporation ;led a motion to dismiss the complaint on the ground of res judicata. R Corporation alleged that 0aphael should have incorporated in his complaint for interpleader his claim for storage fees and advances and that for his failure he was barred from interposing his claim. 0aphael replied that he could not have claimed storage fees and other advances in his complaint for interpleader because he was not yet certain as to who was liable therefor. 0esolve the motion with reasons. 6>+8 SUGGESTED ANSWER4

%he motion to dismiss should be granted. 0aphael should have incorporated in his complaint for interpleader his claim for storage fees and advances, the amounts of which were obviously determinable at the time of the ;ling of the complaint. %hey are part of 0aphaelJs cause of action which he may not be split. :ence, when the warehouseman as2s the court to ascertain who among the defendants are entitled to the goods, he also has the right to as2 who should pay for the storage fees and other related e9penses. %he ;ling of the interpleader is available as a ground for dismissal of the second case. (Sec. 4, Rule 2,)

&t is a2in to a compulsory counterclaim which, if not set up, shall be barred. (Sec. 2, ule 9, ; )rrea v. ia, "..

%o. &&&, )ugust 0, 200&!

Actions" Cause of Actions" :otion to 8ismiss" bar by rior /udgment ('')

0olando ;led a petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological incapacity of the latter. After trial, the court rendered judgment dismissing the petition on the ground that 0olando failed to prove the psychological incapacity of his wife. %he judgment having become ;nal, 0olando ;led another petition, this time on the ground that his marriage to Carmela had been celebrated without a license. &s the second action barred by the judgment in the ;rst5 3hy5 67+8 SUGGESTED ANSWER4

'o, the second action is not barred by the judgment in the ;rst because they are dierent causes of action. %he ;rst is for annulment of marriage on the ground of psychological incapacity under Article *K of the $amily Code, while the second is for declaration of nullity of the marriage in view of the absence of a basic re?uirement, which is a marriage license. ) -rts, 9 6 3(3), #%mil$ Co"e]. %hey are dierent causes of action because the evidence re?uired to prove them are not the same. FPagsisihan v. Court of )$$eals, 9* SC) *'0

(&9/0! an# other casesD.

Actions" Counterclaim ('') Version 1997-2006 !dated "#

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by the allegations of the Complaint need not be answered. F"oAo v. "oala, * SC) **7 (&970!D.

&n this case, the defendantLs counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and occurrence constituting the subject matter of the plaintiLs claim. &t raises the same issue of who encroached on whose land. :ence, there was no need to answer the counterclaim. Actions" Counterclaim vs. Crossclaim (1999)

a8 3hat is a counterclaim5 67+8 b8 Distinguish a counterclaim from a crossclaim. 67+8

(Rule 11, sec. 4). Remedial Law Bar Examination Q & A (1997-2006)

%he plainti sued the defendant in the 0%C for damages allegedly caused by the latterLs encroachment on the plaintiLs lot. &n his answer, the defendant denied the plaintiLs claim and alleged that it was the plainti who in fact had encroached on his 6defendantLs8 land. Accordingly, the defendant counterclaimed against the plainti for damages resulting from the alleged encroachment on his lot. %he plainti ;led an e9 parte motion for e9tension of time to answer the defendantLs counterclaim, but the court denied the motion on the ground that it should have been set for hearing. #n the defendantLs motion, therefore, the court declared the plainti in default on the counterclaim. 3as the plainti validly declared in default5 3hy5 6<+8 SUGGESTED ANSWER4

'o, the plainti was not validly declared in default. A motion for e9tension of time to ;le an answer may be ;led e9 parte and need not be set for hearing. F)ante vs. Sunga, 6' SC) &92 (&97*!D. ALTERNATI3E ANSWER4

%he general rule is that a counterclaim must be answered within ten 6F8 days from service.

:owever, a counterclaim that raises issues which are deemed automatically joined

c8 A, who is engaged in tile installation business, was sued by "" &ndustries for breach of contract for installing dierent marble tiles in its oices as provided in their contract. 3ithout ;ling any motion to dismiss, A ;led its Answer with Counterclaim theoriGing that "" &ndustries has no legal capacity to sue because it is not a duly registered corporation. By way of counterclaim, A as2ed for moral and actual damages as her business depleted as a result of the withdrawal and cancellation by her clients of their contracts due to the ;ling of the case. %he case was dismissed after the trial court found that "" &ndustries is not a registered corporation and therefore has no legal capacity to sue. :owever, it set a date for the reception of evidence on AJs counterclaim. "" &ndustries opposed on the ground that the counterclaim could no longer be prosecuted in view of the dismissal of the main


Page 15 of 66

case. &s the stand of "" &ndustries sustainable5 "9plain. )7+ SUGGESTED ANSWER4

%) A C#'%"0CA&@ is any claim which a defending party may have against an opposing party. (Sec. , Rule )

b) A counterclaim is distinguished from a C0#!!- CA&@ in that a crossclaim 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. A counterclaim is against an opposing party while a cross-claim is against a co-party. (Sec. *, Rule ) c) 'o, because if no motion to dismiss has been ;led, any of the grounds for dismissal provided in the 0ules may be pleaded as an airmative defense in the answer which may include a counterclaim. %his is what A did by ;ling an Answer alleging the lac2 of legal capacity of "" &ndustries to sue because it is not a duly registered corporation with a counterclaim for damages. %he dismissal of the complaint on this ground is without prejudice to the prosecution of the counterclaim in the same action because it is a compulsory counterclaim. (Sec.  of Rule 1.) Actions" Cross$Claims" %,ird Party Claims (1997) B and C borrowed />FF,FFF.FF from

A. %he promissory note was e9ecuted by B and C in a (oint and several capacity. B, who received the money from A, gave C /7FF,FFF.FF. C, in turn, loaned /FF,FFF.FF out of the /7FF,FFF.FF he received to D.

a8 &n an action ;led by A against B and C with the 0%C of MueGon City, can B ;le a cross-claim against C for the amount of /7FF,FFF.FF5 b8 Can C ;le a third party complaint against D for the amount of / FF,FFF.FF5 SUGGESTED ANSWER4

6a8 Nes. B can ;le a cross-claim against C for the amount of 7FF,FFF.FF given to C. A cross-claim is a claim ;led by one party against a co-party arising out of the transaction or occurrence that is the subject matter of the original action or a counterclaim therein and may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted against the crossclaimant. (Sec. * Rule )

6b8 'o, C cannot ;le a third-party complaint against D because the loan of /FF,FFF has no connection with the opponentJs claim. C could have loaned the

money out of other funds in his possession. ALTERNATI3E ANSWER4

Nes, C can ;le a third-party complaint against D because the loan of FF,FFF.FF was ta2en out of the /7FF,FFF received from B and hence the loan see2s Version 1997-2006 !dated "#

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Page 16 of the civil action impliedly instituted in the criminal action for rec2less imprudence resulting in serious physical injuries. 0esolve the motion with reasons. 6>+8 SUGGESTED ANSWER4

(8int v. 8iLu, ".+8 %o. &/',

(Sec. 12, Rule 3) Remedial Law Bar Examination Q & A (1997-2006)

contribution in respect to his opponentJs claim. (Sec. 11 of Rule ) Actions" 8erivative Suit vs. Class Suit (')

Distinguish a derivative suit from a class suit. SUGGESTED ANSWER4

A D"0&A%&" !&% is a suit in e?uity that is ;led by a minority shareholder in behalf of a corporation to redress wrongs committed against it, for which the directors refuse to sue, the real party in interest being

the corporation itself while a CA!! !&% is ;led regarding a controversy of common or general interest in behalf of many persons so numerous that it is impracticable to join all as parties, a number which the court ;nds suiciently representative who

e3ruar

&9,

200&!,

may sue or defend for the bene;t of all. &t is worth noting that a derivative suit is a representative suit, just li2e a class suit. Actions" &iling" Civil Actions - Criminal Action (')

3hile cruising on a highway, a ta9icab driven by @ans hit an electric post. As a result thereof, its passenger, (ovy, suered serious injuries. @ans was subse?uently charged before the @unicipal %rial Court with rec2less imprudence resulting in serious physical injuries. %hereafter, (ovy ;led a civil action against ourdes, the owner of the ta9icab, for breach of contract, and @ans for ?uasidelict. ourdes and @ans ;led a motion to dismiss the civil action on the ground of litis pendentia, that is, the pendency of

%he motion to dismiss should be denied. %he action for breach of contract against the ta9icab owner cannot be barred by the criminal action against the ta9icab driver, although the ta9icab owner can be held subsidiarily liable in the criminal case, if the driver is insolvent. #n the other hand, the civil action for ?uasi-delict against the driver is an independent civil action under Article ** of the Civil Code and !ec. *, 0ule  of the 0ules of Court, which can be ;led separately and can proceed independently of the criminal action and regardless of the result of the latter. (Sason v. awa, ".. %os. &600*'**, -ul 2&,

200'!

Actions" ntervention" e
3hat are the re?uisites for an intervention by a non- party in an action pending in court5 6<+8 SUGGESTED ANSWER4

%he re?uisites for intervention areO . egal interest in the matter in a controversyI or 7. egal interest in the success of either of the partiesI or


66 *. egal interest against bothI or >. !o situated as to be adversely aected by a distribution or other disposition or property in the custody of the court or of an oicer thereof. <. &ntervention will not unduly delay or prejudice the adjudication of the rights or original partiesI

K. &ntervenorLs rights may not be fully protected in a separate proceedings. ()cenas ++ v. Court of )$$eals, 2'7 SC) 77 F&99*D; Sec. &, ule &9, &997 ules of Civil Proce#ure.!

Actions" eal Actions - Personal Actions ('+)

3hat do you mean by a8 real actionsI and b8 personal action5 67+8 SUGGESTED ANSWER4

a. 0"A AC%&#'! are actions aecting title to or possession of real property or an interest therein (ortune Motors, +nc. v. C), ". . %o. 76'&, cto3er &6, &9/9; ule ', Sec. &!.

b. All other actions are /"0!#'A AC%&#'! (Rule 4, Section /) which include those arising from privity of contract. Actions" Survives 8eat, of t,e 8efendant (')

/( engaged the services of Atty. !% to represent him in a civil case ;led by #/ against him which was doc2eted as Civil Case 'o. 7*. A retainership agreement

was e9ecuted between /( and Atty. !% whereby /( promised to pay Atty. !% a retainer sum of /7>,FFF.FF a year and to transfer the ownership of a parcel of land to Atty. !% after presentation of /(Ls evidence. /( did not comply with his underta2ing. Atty. !% ;led a case against /( which was doc2eted as Civil Case 'o. >
. 'o. nder !ec. 7F, 0ule *, HHE 0ules of Civil /rocedure, when the action is for recovery of money arising from contract, e9press or implied, and the defendant dies before entry of ;nal judgment in the court in which the action is pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of ;nal judgment. A favorable judgment obtained by the plainti shall be enforced in the manner especially provided in the 0ules for prosecuting claims against the estate of a deceased person. 7. Nes, my answer is the same. An action to recover real property in any event survives the death of the defendant. 6!ec. , 0ule E, 0ules of Court8. :owever, a favorable judgment may be enforced Version 1997-2006 !dated "#

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in

accordance with !ec. E6b8 0ule *H 6HHE 0ules of Civil /rocedure8 against the e9ecutor or administrator or successor in interest of the deceased. Aeals" Period of Aeal" &res, Period ule (') Defendant R received an adverse Decision of the 0%C in an ordinary civil case on F7 (anuary 7FF*. :e ;led a 'otice of Appeal on F (anuary 7FF*. #n the other hand, plainti A received the same Decision on FK (anuary 7FF* and, on H (anuary 7FF*, ;led a @otion for 0econsideration of the Decision. #n * (anuary 7FF*, defendant R ;led a @otion withdrawing his notice of appeal in order to ;le a @otion for 'ew %rial which he attached. #n 7F (anuary 7FF*, the court denied ALs @otion for 0econsideration and RLs @otion to 3ithdraw 'otice of Appeal. /lainti A received the #rder denying his @otion for 0econsideration on F* $ebruary 7FF* and ;led his 'otice of Appeal on F< $ebruary 7FF*. %he court denied due course to ALs 'otice of Appeal on the ground that he period to appeal had already lapsed. K+

6a8 &s the courtLs denial of RLs @otion to 3ithdraw 'otice of Appeal proper5 6b8&s the courtLs denial of due course to ALs appeal correct5 SUGGESTED ANSWER4

6a8 'o, the courtLs denial of RLs @otion to 3ithdraw 'otice of Appeal is not proper, because the period of appeal of R has not yet e9pired. $rom (anuary 7, 7FF* when R received a copy of the adverse decision up to (anuary *, 7FF* when he ;led his withdrawal of appeal and @otion for 'ew %rial, only ten 6F8 days had elapsed and he had ;fteen 6<8 days to do so. 6b8 'o, t he c ourtLs d enial o f due course to ALs appeal is not correct because the appeal was ta2en on time. $rom (anuary K, 7FF* when A received a copy of the decision up to (anuary H, 7FF* when he ;led a @otion for 0econsideration, only twelve 678 days had elapsed. Conse?uently, he had three 6*8 days from receipt on $ebruary *, 7FF* of the #rder denying his @otion for 0econsideration within which to appeal. :e ;led is notice of

appeal on $ebruary <,

7FF*, or only two 678 days later. ALTERNATI3E ANSWER4

!ince ALs @otion for 0econsideration was ;led on (anuary H, 7FF* and it was denied on (anuary 7F, 7FF*, it was clearly not set for hearing with at least three daysL notice. %herefore, the motion was pro forma and did not interrupt the period of appeal which e9pired on (anuary 7, 7FF* or ;fteen 6<8 days after notice of the decision on (anuary K, 7FF*.

%o standardiGe the appeal periods provided in the 0ules and to aord litigants fair opportunity to appeal their cases, the Court deems it practical to =*%>


Page 17 of 66

allow a 4S< P4+ of &* #as within which to ;le the notice of appeal in the 0%C, counted from receipt of the order dismissing a motion for a new

trial or motion for reconsideration. F%e$es et. al. vs. C), ".. %o. &'&*2', Se$te3er &', 200*D

Certiorari" :ode of Certiorari ('+)

"9plain each mode of certiorariO &. )s a o#e of a$$eal fro the egional 5rial Court or the Court of )$$eals to the Su$ree

Court. (2.*H! SUGGESTED ANSWER4

Certiorari as a mode of appeal is governed by 0ule >< of the 0ules of Court which allows appeal from judgment, ;nal order of resolution of the Court of Appeals, !andiganbayan, the 0%C or other courts whenever authoriGed by law to the !upreme Court by veri;ed petition for review raising only ?uestions of law distinctly set forth. 2. )s a s$ecial civil action fro the egional 5rial Court or the Court of )$$eals to the Su$ree Court. (2.*H! SUGGESTED ANSWER4

Certiorari as a !pecial Civil Action is governed by 0ule K< of the 0ules of Court when an aggrieved party may ;le a veri;ed petition against a decision, ;nal order or resolution of a tribunal, body or board that has acted

without or in e9cess of its jurisdiction or grave abuse of discretion amounting to lac2 or e9cess of jurisdiction, when there is no appeal or any other plain, speedy and ade?uate remedy in the ordinary course of law. . )s a o#e of review of the #ecisions of the %ational 8a3or elations Coission an# the

Constitutional Coissions. (2.*H! SUGGESTED ANSWER4

Certiorari as a mode of review of the decision of the '0C is elevated to the Court of Appeals under 0ule K<, as held in the case of St. Martins uneral of the HHE 0ules of Civil /rocedure. &n the case of the Civil !ervice Commission 6C!C8, review of its judgments is through petitions for review under !ec. < of 0ule >* of the HHE 0ules of Civil /rocedure. Certiorari" ule ? vs. ule + (199!)

Dierentiate certiorari as an original action from certiorari as a mode of appeal. Q*+ SUGGESTED ANSWER4

Certiorari as an original action and certiorari as a mode of appeal may be distinguished as followsO . %he ;rst is a special civil action under 0ule K< of the 0ules of Court, while the second is an appeal Version 1997-2006 !dated "#

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to the !upreme Court from the Court of Appeals, !andiganbayan and the 0%C under 0ule ><. 2. %he ;rst can be ;led only on the grounds of lac2 or e9cess of jurisdiction or grave abuse of discretion tantamount to lac2 or e9cess of jurisdiction, while the second is based on the errors of law of the lower court. 3. %he ;rst should be ;led within si9ty 6KF8 days from notice of the judgment, order or resolution sought to be assailed (Sec. 4. Rule ) , while the second should be ;led within ;fteen 6<8 days from notice of the judgment or ;nal order or resolution appealed from, or of the denial of the petitionerJs motion for new trial or reconsideration ;led in due time after notice of the judgment. (Sec. 2, Rule 4) ;rst cannot generally be 4. %he

availed of as a substitute for a lost appeal under 0ules >F, >, >7, >* and ><. . nder the ;rst, the lower court is impleaded as a party respondent (Sec.  of Rule ), while under the second, the lower court is not imp leaded.

(Sec. 4 of Rule of 4) Certiorari" ule ? vs. ule + (')

@ay the aggrieved party ;le a petition for certiorari in the !upreme Court under 0ule K< of the HHE 0ules of Civil /rocedure, instead of ;ling a petition for review on certiorari under 0ule >< thereof for the nulli;cation of a decision of the Court of Appeals in the e9ercise either of its original or appellate jurisdiction5 "9plain. SUGGESTED ANSWER4

%o '&$N A D"C&!&#' of the Court of Appeals the aggrieved party should ;le a /"%&%&#' $#0 0"&"3 #' C"0%�A0& in the !upreme Court under 0ule >< of the 0ules of Court instead of ;ling a petition for certiorari under 0ule K< e9cept under very e9ceptional circumstances. A long line of decisions of the !upreme Court, too numerous to mention, holds that certiorari is not a substitute for a lost appeal. &t should be noted, however, when the Court of Appeals imposes the death penalty, or a lesser penalty for oenses committed

on such occasion, appeal by petition for review or ordinary appeal. &n cases when the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, appeal is by notice of appeal ;led with the Court of Appeals. Contemt" 8eat, of a Party" ffect (199!) A ;led a complaint for the recovery of ownership of land against B who was represented by her counsel R. &n the course of the trial, B died. :owever, R failed to notify the court of BJs death. %he court proceeded to hear the case and rendered judgment against B. After the (udgment became ;nal, a writ of e9ecution


Page 18 of 66

was issued against C, who being BJs sole heir, ac?uired the property. Did the failure of counsel R to inform the court of BJs death constitute direct contempt5 67+8 SUGGESTED ANSWER4

'o. &t is not direct contempt under !ec.  of 0ule E, but it is indirect contempt within the purview of !ec * of 0ule E. %he lawyer can also be the subject of disciplinary action. (Sec. 1, Rule 3)

8efault (') Defendant was declared in default by the 0%C 60%C8. /lainti was allowed to present evidence in support of his complaint. /hotocopies of oicial receipts and original copies of aidavits were presented in court, identi;ed by plainti on the witness stand and mar2ed as e9hibits. !aid documents were oered by plainti and admitted in evidence by the court on the basis of which the 0%C rendered judgment in favor of the plainti, pursuant to the relief prayed for. pon receipt of the judgment, defendant appeals to the Court of Appeals claiming that the judgment is not valid because the 0%C based its judgment on mere photocopies and aidavits of persons not presented in court.

&s the claim of defendant valid5 "9plain. 6*+8

evidence is not re?uired. After a defendant is declared in default, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion re?uires the claimant to submit evidence, which may be delegated to the cler2 of court. (Sec. 3, Rule 9) ALTERNATI3E ANSWER4

%he claim of defendant is valid, because the court received evidence which it can order in its own discretion, in which case the evidence of the plainti must pass the basic re?uirements of admissibility. 8efault ('1)

@ario was declared in default but before judgment was rendered, he decided to ;le a motion to set aside the order of default. a8 3hat should @ario state in his motion in order to justify the setting aside of the order of default5 6*+8 b8 &n what form should such motion be5 67+8 SUGGESTED ANSWER4

a8&n order to justify the setting aside of the order of default, @ario should state in his motion that his failure to answer was due to fraud, accident, mista2e or e9cusable negligence and that he has a meritorious defense. [Sec. 3(b) of Rule 9,].

SUGGESTED ANSWER4

b8 %he motion should be under oath. 6&d.8

%he claim of defendant is not valid because under the HHE 0ules, reception of

8efault" *rder of 8efault" ffects (1999) Version 1997-2006 !dated "#

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the order of default.


. 3hen may a party be declared in default5 67+8 7. 3hat is the eect of an #rder of Default5 67+8 *. $or failure to seasonably ;le his Answer despite due notice, A was declared in default in a case instituted against him by B. %he following day, AJs mistress who is wor2ing as a cler2 in the sala of the (udge before whom his case is pending, informed him of the declaration of default. #n the same day, A presented a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud and he has a meritorious defense. %hereafter, he went abroad. After his return a wee2 later, with the case still undecided, he received the order declaring him in default. %he motion to set aside default was opposed by B on the ground that it was ;led before A received notice of his having been declared in default, citing the rule that the motion to set aside may be made at anytime after notice but before judgment. 0esolve the @otion.

67+8 SUGGESTED ANSWER4

. A party may be declared in default when he fails to answer within the time allowed therefor, and upon motion of the claiming party with notice to the defending party, and proof of such failure. (Sec. 3, Rule 9)

7. %he eect of an #rder of Default is that the court may proceed to render judgment granting the claimant such relief as his pleading may warrant unless the court in its discretion re?uires

the claimant to submit evidence 6&d.8 %he party in default cannot ta2e part in the trial but shall be entitled to notice of subse?uent proceedings. (Sec. 3[-]) *. Assuming that the motion to set aside complies with the other re?uirements of the rule, it should be granted. Although such a motion may be made after notice but before judgment (Sec. 3[5] of Rule 9), with more reason may it be ;led after discovery even before receipt of

8efault" emedies" Party 8eclared in 8efault (199!)

3hat are the available remedies of a party declared &n defaultO 1, Rule )

. Before the rendition of judgmentI )+ 7. After judgment but before its ;nalityI and )7+ *. After ;nality of judgment5 )7+ SUGGESTED ANSWER4

%he available remedies of a party declared in default are as followsO 1.

BEFORE THE RENDITION OF JUDGMENT 6a8 he may ;le a motion under oath to set aside the order of default on the grounds of fraud, accident, mista2e or e9cusable negligence and that he has a meritorious

Page 19 of 66 defense (Sec. 3[b], Rule 9); and if it is denied, he may move to reconsider, and if reconsideration is denied, he may ;le the special civil action of certiorari for grave abuse of discretion tantamount to lac2 or e9cess of the lower courtJs jurisdiction. (Sec.

or 6b8 he may ;le a petition for certiorari if he has been illegally declared in default, e.g. during the pendency of his motion to dismiss or before the e9piration of the time to answer. (Matute vs. Court of )$$eals, 26 SC) 76/; )costafalia vs. Sun#ia, /* SC) '&2.!

7.

AFTER JUDGMENT BUT BEFORE ITS

FINALITY,

he may ;le a motion for new trial on the grounds of fraud, accident, mista2e, e9cusable negligence, or a motion for reconsideration on the ground of e9cessive damages, insuicient evidence or the decision or ;nal order being contrary to law (Sec. 2, Rule 37)O and thereafter. &f the motion is denied, appeal to available under 0ules >F or >, whichever to applicable. *. AFTER FINALITY OF THE JUDGMENT, there are three ways to assail the judgment, which areO a8 a petition for relief under 0ule * on the grounds of fraud, accident, mista2e or e9cusable negligenceI

b8 annulment of judgment under 0ule >E for e9trinsic fraud or lac2 of jurisdictionI or c8 certiorari if the judgment to void on its face or by the judicial record. (Balangca# vs.

-ustices of the Court of )$$eals, ".. %o. ////. e3ruar &2, &992, 206 /C) &7&!.

8efault" emedies" Party 8eclared in 8efault ('+) (ojie ;led with the 0egional %rial Court of aguna a complaint for damages against (oe. During the pre- trial, (ojie 6sic8 and her 6sic8 counsel failed to appear despite notice to both of them. pon oral motion of (ojie, (oe was declared as in default and (ojie was allowed to present her evidence e9 parte. %hereafter, the court rendered its Decision in favor of (ojie.

(oe hired (ose as his counsel. 3hat are the remedies available to him5 "9plain. 6<+8 SUGGESTED ANSWER4

%he remedies available to a party against whom a default decision is rendered are as followsO . B"$#0" the judgment in default becomes ;nal and e9ecutoryO a. @otion for 0econsideration under 0ule *EI b. @otion for 'ew %rial under 0ule *EI and c. Appeal under 0ule >. 7. A$%"0 the judgment in default becomes ;nal and e9ecutoryO a. /etition for 0elief under 0ule *I b. Annulment of (udgment under 0ule >EI and Version 1997-2006 !dated "#

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c.

Certiorari under 0ule K<.

(See 5alsan 4nter$rises, +nc. v. Baliwag 5ransit, +nc., ".. %o. &262*/, -ul /, &999!

8efault" emedies" Substantial Comliance (')

$or failure of 4.(. to ;le an answer within the reglementary period, the Court, upon motion of @, declared 4( in default. &n due time, 4( ;led an unveri;ed motion to lift the order of default without an aidavit of merit attached to it. 4( however attached to the motion his answer under oath, stating in said answer his reasons for his failure to ;le an answer on time, as well as his defenses. 3ill the motion to lift the order of default prosper5 "9plain. 6*+8 SUGGESTED ANSWER4

Nes, there is substantial compliance with the rule. Although the motion is unveri;ed, the answer attached to the motion is veri;ed. %he answer contains what the motion to lift the order of default and the aidavit of merit should contain, which are the reasons of movantLs failure to answer as well as his defenses. (Sec.  F3D of ule 9, &997 ules of Civil

Proce#ure; Cf. Citi3anE, %.). v. Court of )$$eals, 0' SC) 679, F&999D; Consul v. Consul, &7 SC) 667, 67& F&966D; 5olentino v. Carlos, 66 Phil, &'*0, &'&'' F&9/D, %asser v. Court of )$$eals, &9& SC) 7/ F&992D!.

8emurrer to vidence ('1) Carlos ;led a complaint against /edro in the 0%C of #Gamis City for the recovery of the ownership of a car. /edro ;led his answer within the reglementary period. After the pre-trial and actual trial, and after Carlos has completed the presentation of his evidence, /edro moved for the dismissal of the complaint on the ground that under the facts proven and the law applicable to the case, Carlos is not entitled to the ownership of the car. %he 0%C granted the motion for dismissal. Carlos appealed the order of dismissal and the appellate court reversed the order of the trial court. %hereafter, /edro ;led a motion with the 0%C as2ing the latter to allow him to present his evidence. Carlos objected to the presentation of evidence by /edro.

!hould the 0%C grant /edroLs motion to present his evidence5 3hy5 6<+8 SUGGESTED ANSWER4

'o. /edroLs motion should be denied. :e can no longer present evidence. %he 0ules provide that if the motion for dismissal is granted by the trial court but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present evidence. (Sec. 1 of Rule 33, Rules of Ciil !roce"ure) ALTERNATI3E ANSWER4

'o, because when the appellate court reversed the order of the trial court it should have rendered judgment in favor of Carlos. (uebr%l . Court of -88e%ls, 22 SCR33, 199)


Page 20 of

66 8emurrer to vidence" Civil Case vs. Criminal Case (')

Compare the eects of a denial of demurrer to evidence in a civil case with those of a denial of demurrer to evidence in a criminal case. >+ SUGGESTED ANSWER4

&n a civil case, the defendant has the right to ;le a demurrer to evidence without leave of court. &f his demurrer is denied, he has the right to present evidence. &f his demurrer is granted and on appeal by the plainti, the appellate court reverses the order and renders judgment for the plainti, the defendant loses his right to present evidence. 60ule **8.

&n a criminal case, the accused has to obtain leave of court to ;le a demurrer to evidence. &f he obtains leave of court and his demurrer to evidence is denied, he has the right to present evidence in his defense. &f his demurrer to evidence is granted, he is ac?uitted and the prosecution cannot appeal. &f the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to present evidence and the case is decided on the basis of the evidence for the prosecution. %he court may also dismiss the action on the ground of insuiciency of the evidence on its own initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119) 8iscovery" :odes of 8iscovery (')

Describe brie=y at least ;ve 6<8 modes of discovery under the 0ules of Court. 6<+8 SUGGESTED ANSWER4

$ive modes of discovery under the 0ules of Court areO . DEPOSITION. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served,

the testimony of any person, whether a party or not, may be ta2en, at the instance of any party, by deposition upon oral e9amination or

written interrogatories. (Sec. 1, Rule 23, 1997 Rules of Ciil !roce"ure.) 7. INTERROGATORIES TO PARTIES . nder the same conditions speci;ed in section  of 0ule 7*, any party shall ;le and serve upon any adverse party written interrogatories regarding material and relevant facts to be answered by the party served. 6Sec. 1, Rule 2, 1997 Rules of Ciil !roce"ure.)

*. ADMISSION BY ADVERSE PARTY . At any time after issues have been joined, a party may ;le and serve upon any other party a written re?uest for the admission by the latter of the genuineness of any material and relevant document or of the

truth of any material and relevant matter of fact. (Sec. 1, Rule 2, 1997 Rules of Ciil !roce"ure.) Version 1997-2006 !dated "# Dondee

Remedial Law Bar Examination Q & A (1997-2006) >. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS. pon motion of any party showing

good cause therefore, a court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc. or order any party to permit entry upon designated land or property for inspecting, measuring, surveying, or photographing the property or any designated

relevant object or operation thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Ciil !roce"ure.)

8iscovery" :odes" Suboena 8uces %ecum (1997) &n an admiralty case ;led by A against N !hipping ines 6whose principal oices are in @anila8 in the 0%C, Davao City, the court issued a subpoena duces tecum directing N, the president of the shipping company, to appear and testify at the trial and to bring with him several documents.

6a8 #n what valid ground can N refuse to comply with the subpoena duces tecum5 6b8 :ow can A ta2e the testimony of N and present the documents as e9hibits other than through the subpoena from the 0%C5 SUGGESTED ANSWER4

6a8 N can refuse to comply with the subpoena duces tecum on the ground that he resides more than
6b8 A can ta2e the testimony of N and present the documents as e9hibits by ta2ing his deposition through oral e9amination or written interrogatories. (Rule 24; new Rule 23) :e may also ;le a motion for the production or inspection of documents. (Rule 27). ALTERNATI3E ANSWER4

6a8 %he witness can also refuse to comply with the subpoena duces tecum on the ground that the documents are not relevant and there was no tender of fees for one dayJs attendance and the 2ilometrage allowed by the rules. 8iscovery" Production and nsection of 8ocuments ('') %he plainti sued the defendant in the 0%C

to collect on a promissory note, the terms of which were stated in the complaint and a photocopy attached to the complaint as an anne9. Before answering, the defendant ;led a motion for an order directing the plainti to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts.

. !hould the judge grant the defendantLs motion for production and inspection of the original of the promissory note5 3hy5 67+8 7. Assuming that an order for production and inspection was issued but the plainti failed to comply with it, how should the defendant plead to the alleged e9ecution of the note5 6*+8


Page 21 of

66 SUGGESTED ANSWER4

68Nes, because upon motion of any party showing good cause, the court in which the action is pending may order any party to produce and permit the inspection of designated documents. (Rule 27). %he defendant has the right to inspect and verify the original of the promissory note so that he could intelligently prepare his answer. 678 %he defendant is not re?uired to deny under oath the genuineness and due e9ecution of the promissory note, because of the non-compliance by the plainti with the order for production and inspection of the original thereof. (Rule *, sec. *). ALTERNATI3E ANSWER4

678 %he defendant may ;le a motion to dismiss the complaint because of the refusal of the plainti to obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]. 8ismissal" :otion to 8ismiss" es Judicata (') AB, as mother and in her capacity as legal guardian of her legitimate minor son, CD, brought action for support against "$, as father of CD and ABLs lawfully wedded husband. "$ ;led his answer denying his paternity with counterclaim for damages. !ubse?uently, AB ;led a manifestation in court that in view of

the denial made by "$, it would be futile to pursue the case against "$. AB agreed to move for the dismissal of the complaint, subject to the condition that "$ will withdraw his counter claim for damages. AB and "$ ;led a joint motion to dismiss. %he court dismissed the case with prejudice. ater on, minor son CD, represented by AB, ;led another complaint for support against "$. "$ ;led a motion to dismiss on the ground of res judicata.

a8 &s res judicata a valid ground for dismissal of the second complaint5 "9plain your answer 6*+8 b8 3hat are the essential re?uisite of res judicata5

67+8 SUGGESTED ANSWER4

6a8 'o, res judicata is not a defense in an action for support even if the ;rst case was dismissed with prejudice on a joint motion to dismiss. %he plaintiLs mother agreed to the dismissal of the complaint for support in view of the defendantLs answer denying his paternity with a counterclaim for damages. %his was in the nature of a compromise of the right of support which is prohibited by law. ()rt, 20*, Civil Co#e; e )sis v. Court of )$$eals, 0 SC) &76 F&999D!.

6b8 %he "ssential 0e?uisites of 0es (udicata areO . the judgment or order rendered must be ;nalI 7. the court rendering the same must have jurisdiction of the subject matter and of the partiesI *. it must be a judgment or order on the meritsI and Version 1997-2006 !dated "#

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Remedial Law Bar Examination Q & A

>.

(1997-2006)


Page 22 of 66

there must be between the two cases identity of parties, identity of subject matter, and identity of causes of action. (San iego Car#ona, 70 Phil, 2/& F&9'0D! v.

vidence" Admissibility" P,otocoies (')

&f the photocopies of oicial receipts and photocopies of aidavits were attached to the position paper submitted by plainti in an action for unlawful detainer ;led with @unicipal %rial Court on which basis the court rendered judgment in favor of SUGGESTED ANSWER4 plainti5 "9plain. 67+8 is valid, because %he claim of defendant although summary procedure re?uires merely the submission of position papers, the evidence submitted with the position (Sec. 9 paper be admissible /hotocopies of t0e must Reise" Rule on in evidence. Summ%r$ !roce"ure). of not oicial receipts and admissible aidavits are without proof of (Sec. 3 of Rule 13) loss of the originals. &orum S,oing" 8efinition ('+)

3hat is forum shopping5 67.<+8 ANSWER4 SUGGESTED $orum shopping is the act of a party which consists of ;ling multiple suits, simultaneously or successively, for the purpose v. of >ice obtaining a favorable judgment (8eson of the 3u#san, "..

%o. &'990, )$ril 27, 2000; Lulienco v. C), ".. %o. &&692, -une &0,&999; Che$hil 4$ort N +$ort Cor$. v. C), ".. %os. &&2'/9, ece3er &2, &99*!. &orum S,oing" ffects" 0ac@ of Certification ('+)

:oney ;led with the 0egional %rial Court, %aal, Batangas a complaint for speci;c performance against Bernie. $or lac2 of certi;cation against forum shopping, the judge dismissed the complaint. :oneyJs lawyer ;led a motion for reconsideration, attaching thereto an amended complaint with the certi;cation against forum SUGGESTED ANSWER4 shopping. &f you were the judge,should how will &f & were the judge, the motion be you resolve denied afterthe motion5 hearing 6<+8 because, as e9pressly provided in the 0ules, failure to comply with the re?uirement of forum shopping is not curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the dismissal of the case, without prejudice, unless otherwise provided (Sec. , Rule 7, 1997 Rules of Ciil

!roce"ure).

:owever, the trial court inServices the e9ercise ("reat Southern Maritie Cor$. of v. )cuna, ".. discretion, %o. &'0&/9, e3ruar its sound may choose to 2/,200*; Chan v. the 5C of be liberal and consider amendment Ga3oanga #el %orte, ".. %o. &'92*, as substantial compliance )$ril &*, 200'; : v. 8an# BanE, ".. &6&00, -ul 2', 2000!. 3en. Princiles" uestions of 0a2 vs. uestions of &act ('?) Distinguish Muestions of law from Muestions of fact.

SUGGESTED ANSWER4

A

QUESTION OF LAW is

when

the

doubt

or dierence arises as to what the law is on a certain set of facts, while a QUESTION OF FACT is when the doubt or dierence arises as to the truth or falsehood of alleged facts. (aos v. Pe$siCola Bottling Co., &9 SC) 2/9, F&9670D!.

Judgment" Annulment of Judgment" 3rounds (199!)

3hat are the grounds for the annulment of a judgment of the 0%C 60%C85 )7+ SUGGESTED ANSWER4

%he grounds for annulment of judgment of the 0%C are "9trinsic $raud and ac2 of (urisdiction. (Sec, 2, Rule 47, 1997 Rules of Ciil !roce"ure.) Judgment" nforcement" $year eriod (1997)

A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against R, a resident of MueGon City, from the @%Cof @anila. %he judgment, entered on < (une HH, had not as yet been e9ecuted. a8 &n (uly HHK, A decided to enforce the judgment of the @%Cof @anila. 3hat is the procedure to be followed by A in enforcing the judgment5 b8 3ith what institute the

court

should

A

proceedings5 SUGGESTED ANSWER4

6a8A can enforce the judgment by another action reviving the (udgment because it can no longer be enforced by motion as the ;ve-year period within which a judgment may be enforced by motion has already e9pired. (Sec.  of former %n" new Rule 39). 6b8 the of the

A may institute the proceedings in 0%C in accordance with the rules venue because the enforcement of (udgment is a personal action

incapable of pecuniary estimation. ALTERNATI3E ANSWER4

6b8 A may institute the proceeding in a @%Cwhich has jurisdiction over the area where the real property involved is situated. (Sec. 1 of Rule 4). Judgment" nforcement" &oreign Judgment (')

nder Article >> of the Code, an action upon a must be brought within from the time the right accrues. &s this provision to an action ;led /hilippines to enforce judgment5 "9plain. 6F+8

'ew Civil judgment F years of action applicable in the a foreign

ALTERNATI3E ANSWER4

Article >> of the Civil Code which re?uires that an action upon a judgment 6though without distinction8 must be brought within F years from the time the right of action accrues, does not apply to an action ;led in the /hilippines to enforce a foreign judgment. 3hile we can say that where the law does not distinguish, we should not distinguish, still the law does not evidently contemplate the inclusion of Version 1997-2006 !dated "#

Dondee


'7' (&999!D. ALTERNATI3E ANSWER4

foreign judgments. A local judgment may Nes, because only moral and e9emplary be enforced by motion within ;ve years damages are awarded in the judgment and and by action within the ne9t ;ve they are not dependent on other types of years. (Rule 39) %hat is not the case damages. with respect to foreign judgments which cannot be enforced by mere @oreover, the motion for e9ecution was motion. ;led while the court had jurisdiction over ALTERNATI3E ANSWER4 Article >> of the Civil Code re?uires the case and was in possession of the that an action upon a judgment original record. 6though without distinction8 must be &t is based on good reason which is the brought within F years from the time the right of action accrues. %here imminent insolvency of the defendant. 60ule *H, seems no cogent reason to e9clude sec. 78 foreign judgments from the operation of this rule, subject to the re?uirements of 0ule *H, !ec. > of the 0ules of Court which establishes certain re?uisites for proving the foreign judgment. /ursuant to these provisions, an action for the enforcement of the foreign judgment may be brought at any time within F years from the time the right of action accrues. Judgment" ;ecution ending Aeal ('') %he trial court rendered judgment ordering the defendant to pay the plainti moral and e9emplary damages. %he judgment was served on the plainti on #ctober , 7FF and on the defendant on #ctober <, 7FF. #n #ctober , 7FF, the defendant ;led a notice of appeal from the judgment, but the following day, #ctober H, 7FF, the plainti moved for the e9ecution of the judgment pending appeal. %he trial court granted the motion upon the posting by the plainti of a bond to indemnify the defendant for damages it may suer as a result of the e9ecution. %he court gave as a special reason for its order the imminent insolvency of the defendant.

&s the order of e9ecution pending appeal correct5 3hy5 6<+8 SUGGESTED ANSWER4

'o, because awards for moral and e9emplary damages cannot be the subject of e9ecution pending appeal. %he e9ecution of any award for moral and e9emplary damages is dependent on the outcome of the main case. iabilities for moral and e9emplary damages, as well as the e9act amounts remain uncertain and inde;nite pending resolution by the Court of Appeals or !upreme Court. FCP+ v. 8antin,

&' SC) 9* (&9/*!; +nternational School, +nc. v. Court of )$$eals, 09 SC)


Page 23 of

66 Judgment" nterlocutory *rder" Partial Summary Judgments ('?) After defendant has served and ;led his answer to plaintis complaint for damages before the proper 0%C, plainti served and ;led a motion 6with supporting aidavits8 for a summary judgment in his favor upon all of his claims. Defendant served and ;led his opposition 6with supporting aidavits8 to the motion. After due hearing, the court issued an order 68 stating that the court has found no genuine issue as to any material fact and thus concluded that plainti is entitled to judgment in his favor as a matter of law e9cept as to the amount of damages recoverable, and 678 accordingly ordering that plainti shall have judgment summarily against defendant for such amount as may be found due plainti for damages, to be ascertained by trial on #ctober E, 7FF>, at O*F oJcloc2 in the morning. @ay defendant properly ta2e an appeal from said order5 #r, may defendant properly challenge said order thru a special civil action for certiorari5 0eason. 6<+8 SUGGESTED ANSWER4

'o, plainti may not properly ta2e an appeal from said order because it is an interlocutory order, not a ;nal and appealable order (Sec. 4 of Rule 3). &t does not dispose of the action or proceeding 6Sec. 1 of Rule 398. /A0%&A !@@A0N (D1@"'%! are interlocutory. %here is still something to be done, which is the trial for the adjudication of damages (Province of Pangasinan v. Court of )$$eals, 220 SC) 726 F&99-; "uevarra v. Court of )$$eals, 209 Phil. 2'& F&9/D! , but the defendant

may properly challenge said order thru a special civil action for certiorari. (Sec. 1 [c] %n" l%st 8%r. of Rule 41)

Judgment" Judgment on t,e Pleadings (1999) are the grounds for a8 3hat

judgment 67+8 b8 AJs

Answer

on

the pleadings5

admits

the

material

allegations of BJs Complaint. @ay the court motu 8ro8rio render judgment on the pleadings5 "9plain. 67+8 c8 A brought an action against her husband B for annulment of their marriage on the ground of

psychological incapacity, B ;led his Answer to the Complaint admitting all the allegations therein contained. @ay A move for judgment on the pleadings5 "9plain. 67+8 SUGGESTED ANSWER4

a8 %he grounds for judgment on the pleadings are where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partyJs pleading. (Sec. 1, Rule 34). b8 'o, a motion must be ;led by the adverse party. (Sec. 1, Rule 34)

%he court cannot

motu 8ro8rio

render judgment on the pleadings. c8 'o, because even if BJs answer to AJs complaint for annulment of their marriage admits all the allegations therein contained, the material facts Version 1997-2006 !dated "# Dondee


alleged in the complaint must always be proved. (Sec. 1 of Rule 34.) ANOT5ER ANSWER4

c. 'o. %he court shall order the prosecutor to investigate whether or not a collusion between the parties e9ists, and if there is no collusion, to intervene for the !tate in order to see to it that the evidence submitted is not fabricated. (Sec. 3[], Rule 9) "vidence must have to be presented in accordance with the re?uirements set down by the !upreme Court in e$u3lic vs. Court of )$$eals an# Molina (26/ SC) &9/.!

Judgment" Judgment on t,e Pleadings (')

&n a complaint for recovery of real property, the plainti averred, among others, that he is the owner of the said property by virtue of a deed of sale e9ecuted by the defendant in his favor. Copy of the deed of sale was appended to the complaint as Anne9 PAP thereof. &n his unveri;ed answer, the defendant denied the allegation concerning the sale of the property in ?uestion, as well as the appended deed of sale, for lac2 of 2nowledge or information suicient to form a belief as to the truth thereof. &s it proper for the court to render judgment without trial5 "9plain. 6>+8 SUGGESTED ANSWER4

Defendant cannot deny the sale of the property for lac2 of 2nowledge or information suicient to form a belief as to the truth thereof. %he answer amounts to an admission. %he defendant must aver or state positively how it is that he is ignorant of the facts alleged. (Phil, )#vertising Counselors, +nc. v. evilla,

".. %o. 8&/69, )ugust /, &97; Sec. &0, ule /!

@oreover, the genuineness and due e9ecution of the deed of sale can only be denied by the defendant under oath and failure to do so is also an admission of the deed. (Sec. *, Rule *) :ence, a judgment on the pleadings can be rendered by the court without need of a trial. Judgment" :andamus vs. uo arranto ('1) /etitioner $abian was appointed "lection 0egistrar of the @unicipality of !evilla supposedly to replace the respondent "lection 0egistrar /ablo who was transferred to another municipality without his consent and who refused to

accept his aforesaid transfer, much less to vacate his position in Bogo town as election registrar, as in fact he continued to occupy his aforesaid position and e9ercise his functions thereto. /etitioner $abian then ;led a petition for mandamus against /ablo but the trial court dismissed $abianLs petition contending that ?uo warranto is the proper remedy.

&s the court correct in its ruling5 3hy5 6<+8 SUGGESTED ANSWER4

Nes, the court is correct in its ruling. @andamus will not lie. %his remedy applies only where petitionerLs right is founded clearly in law, not when it is doubtful. /ablo was transferred without his consent

Page 24 of 66 which is tantamount to removal without cause, contrary to the fundamental guarantee on non-


removal e9cept cause. Considering for that /edro continued to occupy the disputed position and e9ercise his functions therein, the proper remedy is ?uo warranto, not mandamus. O"arces v. Court of

)$$eals, 2*9 SC) 99 (&996!D ALTERNATI3E ANSWER4

Nes, the court is correct in its ruling. @andamus lies when the respondent unlawfully e9cludes another from the use and enjoyment of a right or oice to which such other is entitled. (Sec. 2, Rule ). &n this case, /ablo has not unlawfully e9cluded $abian from the #ice of "lection 0egistrar. %he remedy of $abian is to ;le an action of ?uo warranto in his name against /ablo for usurping the oice. (Sec. , Rule ) Judgment" Soundness" Attac,ment ('') %he plainti obtained a writ of preliminary attachment upon a bond of / million. %he writ was levied on the defendantLs property, but it was discharged upon the posting by the defendant of a counterbond in the same amount of / million. After trial, the court rendered judgment ;nding that the plainti had no cause of action against the defendant and that he had sued out the writ of attachment maliciously. Accordingly, the court dismissed the complaint and ordered

the plainti and its surety to pay jointly to the defendant /.< million as actual damages, /F.< million as moral damages and /F.< million as e9emplary damages.

"valuate the soundness of the judgment from the point of view of procedure. 6<+8 SUGGESTED ANSWER4

%he judgment against the surety is not sound if due notice was not given to him of the applicant for damages. (Rule 7, sec. 2) @oreover, the judgment against the surety cannot e9ceed the amount of its counterbond of / million. Judgments" nforcement" ;amination of 8efendant ('')

%he plainti, a @anila resident, sued the defendant, a resident of @alolos Bulacan, in the 0%C-@anila for a sum of money. 3hen the sheri tried to serve the summons with a copy of the complaint on the defendant at his Bulacan residence, the sheri was told that the defendant had gone to @anila for business and would not be bac2 until the evening of that day. !o, the sheri served the summons, together with a copy of the complaint, on the defendantLs - yearold daughter, who was a college student. $or the defendantLs failure to answer the complaint within the reglementary period, the trial court, on motion of the plainti, declared the defendant in default. A month later, the trial court rendered judgment holding the defendant liable for the entire amount prayed for in the complaint. Version 1997-2006 !dated "#

Dondee

e9penses, and costs, being /,FFF,FFF. &n due A. After the judgment had become time, defendant ;led a motion to dismiss the ;nal, a writ of e9ecution was issued by the complaint on the ground of the @e%CJs lac2 of court. As the writ was returned unsatis;ed, jurisdiction over the subject matter. After due the plainti ;led a motion for an order hearing, the @e%C 68 ruled that the court re?uiring the defendant to appear before it indeed lac2ed jurisdiction over the subject and to be e9amined regarding his matter of the complaintI and 678 ordered that the property and income. :ow should the court case therefore should be forwarded to the proper 0%C immediately. 3as the courtJs resolve the motion5 67+8 ruling concerning jurisdiction correct5 3as the SUGGESTED ANSWER4 courtJs order to forward the case proper5 "9plain Jurisdiction" 6abeas Corus" Custody of :inors (') brie=y. 6<+8 3hile @arietta was in her place of wor2 SUGGESTED ANSWER4 in @a2ati City, her estranged husband Carlo barged into her house in /arana?ue City, abducted their si9-year old son, /ercival, and brought the child to his hometown in Baguio City. Despite @ariettaJs pleas, Carlo refused to return their child. @arietta, through counsel, ;led a petition for habeas corpus against Carlo in the Court of Appeals in @anila to compel him to produce their son, before the court and for her to regain custody. !he alleged in the petition that despite her eorts, she could no longer locate her son. Remedial Law Bar Examination Q & A (1997-2006)

&n his comment, Carlo alleged that the petition was erroneously ;led in the Court of Appeals as the same should have been ;led in the $amily Court in Baguio City which, under 0epublic Act 'o. *KH, has e9clusive jurisdiction, over the petition. @arietta replied that under 0ule F7 of the 0ules of Court, as amended, the petition may be ;led in the Court of Appeals and if granted, the writ of habeas corpus shall be enforceable anywhere in the /hilippines. 3hose contention is correct5 "9plain. 6<+8 SUGGESTED ANSWER4

@ariettaJs contention is correct. %he Court of Appeals has concurrent jurisdiction with the family courts and the !upreme Court in petitions for habeas corpus where the custody of minors is at issue, notwithstanding the provision in the $amily Courts A:. (R.-. 'o. *39) that family courts have e9clusive jurisdiction in such cases. (5hornton v. 5hornton, ".. %o. &*'*9/, )ugust, 200'!

Jurisdiction" 0ac@ of Jurisdiction" Proer Action of t,e Court ('?) /lainti ;led a complaint for a sum of money against defendant with the @e%C-@a2ati, the total amount of the demand, e9clusive of interest, damages of whatever 2ind, attorneyJs fees, litigation

(Sec. 1 of Rule

Page 25 of Nes. %he @e%C did not have over jurisdiction case because the total amount deman of the e9clusive of interest, of whatever damages 2ind,


attorneyJs fees, litigation e9penses, and costs, was /@. &ts jurisdictional amount at this time should not e9ceed />FF.FFF.FF (Sec. 33 of 5.!. 5i. 129, %s %men"e" b$ R.-. 'o. 791).

%he courtJs order to forward the case to the 0%C is not proper. &t should merely dismiss the complaint. nder !ec. * of 0ule K, the court may dismiss the action or claim, deny the motion or order the amendment of the pleading but not to forward the case to another court. Parties" 8eat, of a Party" ffect (199!)

A ;led a complaint for the recovery of ownership of land against B who was represented by her counsel R. &n the course of the trial, B died. :owever, R failed to notify the court of BJs death. %he court proceeded to hear the case and rendered judgment against B. After the (udgment became ;nal, a writ of e9ecution was issued against C, who being BJs sole heir, ac?uired the property. &f you were counsel of C, what course of action would you ta2e5 )*+ SUGGESTED ANSWER4

As counsel of C, & would move to set aside the writ of e9ecution and the judgment for lac2 of jurisdiction and lac2 of due process in the same court because the judgment is void. &f R had noti;ed the court of BJs death, the court would have ordered the substitution

of the deceased by C, the sole heir of B. 3) %he court ac?uired no jurisdiction

over C upon whom the trial and the judgment are not binding. (erreira us. +3arra =#a. #e "onales, &0' Phil. &'; =#a. #e la Cru vs. Court of )$$eals, // SC) 69*; 8awas us. Court of )$$eals, &'6 SC) &7.! & could also ;le

an action to annul the judgment for lac2 of jurisdiction because C, as the successor of B, was deprived of due process and should have been heard before judgment. (Rule 47) ALTERNATI3E ANSWER4

3hile there are decisions of the !upreme Court which hold that if the lawyer failed to notify the court of his clientJs death, the court may proceed even without substitution of heirs and the judgment is valid and binding on the heirs of the deceased (loren#o vs. Coloa, &29 SC) 0.!, as

counsel of C, & will assail the judgment and e9ecution for lac2 of due process. Parties" 8eat, of a Party" ffect (1999)

3hat is the eect of the death of a party upon a pending action5 67+8 SUGGESTED ANSWER4

. 3hen the claim in a pending action is purely personal, the death of either of the parties e9tinguishes the claim and the action is dismissed. Version 1997-2006 !dated "#

Dondee


action will not be dismissed but will be allowed to continue until entry of ;nal judgment. 6&d.8

2. 3hen the claim is not purely personal and is not thereby e9tinguished, the party should Parties" %,ird Party Claim (') be substituted by his heirs or (4Ls real property is being attached by the his e9ecutor or administrator. sheri in a civil action for damages against @. (4 claims that he is not a party to (Sec. 1, Rule 3) the caseI that his property is not 3. &f the action is for recovery of money involved in said caseI and that he is the sole arising from contract, e9press or registered owner of said property. nder implied, and the defendant dies before the 0ules of Court, what must (4 do entry of ;nal judgment in the court in to prevent the !heri from attaching which the action was pending at the his property5 6<+8 time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of ;nal judgment. A favorable judgment obtained by the plainti shall be enforced in the manner provided in the rules for prosecuting claims

against the estate of a deceased person. (Sec. 2, Rule 3) Parties" 8eat, of a Party" ffect (1999)

3hen A 6buyer8 failed to pay the remaining balance of the contract price after it became due and demand- able, B 6seller8 sued him for collection before the 0%C. After both parties submitted their respective evidence, A perished in a plane accident. Conse?uently, his heirs brought an action for the settlement of his estate and moved for the dismissal of the collection suit. . 3ill you grant the motion5 "9plain. 67+8 7. 3ill your answer be the same if A died while the case is already on appeal to the Court of Appeals5 "9plain. 67+8 *. &n the same case, what is the eect if B died

before the 0%C has rendered judgment5 67+8 SUGGESTED ANSWER4

. 'o, because the action will not be dismissed but shall instead be allowed to continue until entry of ;nal judgment. 6&d.8 7. 'o. &f A died while the case was already on appeal in the Court of Appeals, the case will continue because there is no entry yet of ;nal judgment. 6&d.8 *. %he

eect

is

the

same.

%he

SUGGESTED ANSER4

&f the real property has been attached, the remedy is to ;le a third-party claim. %he third-party claimant should ma2e an aidavit of his title to the property


Page 26 of 66

attached, stating the grounds of his title thereto, and serve such aidavit upon the sheri while the latter has possession of the attached property, and a copy thereof upon the attaching party. (Sec. 14, Rule 7) %he third-party claimant may also intervene or ;le a separate action to vindicate his claim to the property involved and secure the necessary reliefs, such as preliminary injunction, which will not be considered as interference with a court of coordinate jurisdiction. (ng v. 5ating, &'9 SC) 26*, F&9/7D!

Parties" %,ird$Party Claim (')

A obtained a money judgment against B. After the ;nality of the decision, the court issued a writ of e9ecution for the enforcement thereof. Conformably with the said writ, the sheri levied upon certain properties under BJs name. C ;led a third-party claim over said properties claiming that B had already transferred the same to him. A moved to deny the third-party claim and to hold B and C jointly and severally liable to him for the money judgment alleging that B had transferred said properties to C to defraud him 6A8. After due hearing, the court denied the third-party claim and rendered an amended decision declaring B and C jointly and

severally liable to A for the money judgment. &s the ruling of the court correct5 "9plain. 6>+8 SUGGESTED ANSWER4

'#. C has not been properly impleaded as a party defendant. :e cannot be held liable for the judgment against A without a trial. &n fact, since no bond was ;led by B, the sheri is liable to C for damages. C can ;le a separate action to enforce his thirdparty claim. &t is in that suit that B can raise the ground of fraud against C. :owever, the e9ecution may proceed where there is a ;nding that the claim is fraudulent. (5anongan v. Sason, ".. %o. &'0//9, Ma 9, 2002!

Petition for Certiorari (') AB mortgaged his property to CD. AB failed to pay his obligation and CD ;led an action for foreclosure of mortgage. After trial, the court issued an #rder granting CDLs prayer for foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt including interest and other charges not later than 7F days from date of receipt of the #rder. AB received the #rder on August F, HHH. 'o other proceeding too2 place thereafter. #n December 7F, HHH, AB tendered the full amount adjudged by the court to CD but the latter refused to accept it on the ground that the amount was tendered beyond the 7F-day period granted by the court. AB ;led a motion in the same court praying that CD be directed to receive the amount tendered by him on the ground that the #rder does not comply with the provisions of !ection 7, 0ule K of the 0ules of Court which give AB 7F days from entry of judgment, and Version 1997-2006 !dated "#

Dondee


not from date of receipt of the #rder. %he court denied his motion on the ground that the #rder had already become ;nal and can no longer be amended to conform with !ection 7, 0ule K. Aggrieved, AB ;les a petition for certiorari against the Court and CD. 3ill the petition for certiorari prosper5 "9plain. 6<+8 SUGGESTED ANSWER4

Nes. %he court erred in issuing an #rder granting CDLs prayer for foreclosure of mortgage and ordering AB to pay CD the full amount of the mortgage debt including interest and other charges not later than 7F days from receipt of the #rder. %he court should have rendered a judgment which is appealable. !ince no appeal was ta2en, the judgment became ;nal on August 7<, HHH, which is the date of entry of judgment. (Sec 2, Rule 3) :ence, AB had up to December 7>, HHH within which to pay the amount due. (Sec. 2, Rule *) %he court gravely abused its discretion amounting to lac2 or e9cess of jurisdiction in denying ABLs motion praying that CD be directed to receive the amount tendered. Petition for elief - Action for Annulment ('')

@ay an order denying the probate of a will still be overturned after the period to appeal therefrom has lapsed5 3hy5 6*+8 SUGGESTED ANSWER4

Nes, an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed. A /"%&%&#' $#0 0"&"$ may be ;led on the grounds of fraud, accident, mista2e or e9cusable negligence within a period of si9ty 6KF8 days after the petitioner learns of the judgment or ;nal order and not more than si9 6K8 months after such judgment or ;nal order was entered Fule /, secs. & N ; Soriano v.

)si, &00 Phil. 7/* (&9*7!D.

An AC%&#' $#0 A''@"'% may also be ;led on the ground of e9trinsic fraud within four 6>8 years from its discovery, and if based on lac2 of jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 6 3)

Petition for elief" n/unction ('') A default judgment was

rendered

by

the 0%C ordering D to pay / a sum of money. %he judgment became ;nal, but D ;led a petition for relief and obtained a writ of preliminary injunction staying the enforcement of the judgment. After hearing, the 0%C dismissed DLs petition, whereupon / immediately moved for the e9ecution of the judgment in his favor. !hould /Ls motion be granted5 3hy5 6*+8 SUGGESTED ANSWER4

/Ls immediate motion for e9ecution of the judgment in his favor should be granted because the dismissal of DLs petition for relief also dissolves the writ of preliminary injunction staying the enforcement of the


Page 27 of 66

judgment, even if the dismissal is not yet ;nal. F"ole v. 8eoni#as, &07 SC) &/7 (&9/&!D.

Pleadings" Amendment of Comlaint" By 0eave of Court (')

After an answer has been ;led, can the plainti amend his complaint, with leave of court, by changing entirely the nature of the action5 >+ SUGGESTED ANSWER4

Nes, the present rules allow amendments substantially altering the nature of the cause of action. (Sec. 3, Rule 1, 1977 Rules of Ciil !roce"ure;
%his should only be true, however, when the substantial change or alteration in the cause of action or defense shall serve the higher interests of substantial justice and prevent delay and e?ually promote the laudable objective of the rules which is to secure a just, speedy and ine9pensive disposition of every action and proceeding. 6alenGuela v. Court of Appeals, *K* !C0A EEH )7FF8. Pleadings" Amendment of Comlaint" By 0eave of Court" Prescritive Period (') R, an illegitimate child of N, celebrated her th birthday on @ay 7, HHK. A month before her birthday, N died. %he legitimate family of N refused to recogniGe R as an illegitimate child of N. After countless eorts to convince them, R

;led on April 7<, 7FFF an action for recognition against S, wife of N. After S ;led her answer on August >, 7FFF, R ;led a motion for leave to ;le an amended complaint and a motion to admit the said amended complaint impleading the three 6*8 legitimate children of N. %he trial court admitted the amended complaint on August 77, 7FFF. 3hat is the eect of the admission of the amended complaint5 :as the action of R prescribed5 "9plain. 6<+8 SUGGESTED ANSWER4

'o. %he action ;led on April 7<, 7FFF is still within the four-year prescriptive period which started to run on @ay 7, HHK. %he amended complaint impleading the three legitimate children, though admitted on August 77, 7FFF beyond the four-year prescriptive period, retroacts to the date of ;ling of the original complaint. Amendments impleading new defendants retroact to the date of the ;ling of the complaint because they do not constitute a new cause of action. (=erosa v. Court of )$$eals, 299 SC) &00 F&99/D!. 6'oteO %he four-year period is based on Article 7< of the Civil Code8 ALTERNATI3E ANSWER4

nder the HHE 0ules of Civil /rocedure, if an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the ;ling of such later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec.  of Rule 1). Version 1997-2006 !dated "#

Dondee


Conse?uently, the action of R has prescribed with respect to the three 6*8 legitimate children of N who are indispensable parties. ANOT5ER ALTERNATI3E ANSWER4

have acted without jurisdiction. &t would have been dierent had the amendments been made after a responsive pleading had been served. %he court then would have been e9ercising its discretion in allowing or disallowing the amendment. &t cannot do so however, because it would be then acting on an amendment of a complaint over which it has no jurisdiction. (Sole#a# v. Maangun,

nder Article E< of the $amily Code, the action must be brought within the lifetime of R if the action is based on a record of birth or an ".. %o. 8&79/, admission of ;liation in a public document or a private Ma 0, &96; "ua3a v. Baralin, ".. %o. 8 06/, Ma &, &977; Pru#ence handwritten instrument signed by N. &n ealt v. C), ".. %o. &&027', March 2&, such case, the action of R has not &99'! ALTERNATI3E ANSWER4 prescribed. :owever, if the action is based on the open and continuous possession of the status of an illegitimate child, the action should have been brought during the lifetime of N. &n such case, the action of R has prescribed. Pleadings" Amendment of Comlaint" :atter of ig,t (') #n @ay 7, 7FF<, the plainti ;led a complaint in the 0%C of MueGon City for the collection of /7
0ule on the motion of the defendant with reasons. 6>+8 SUGGESTED ANSWER4

%he motion to dismiss should be denied. Basic is the rule that a motion to dismiss is not a responsive pleading. Under the Rules, a pleader may amend his pleading as a matter of right before the other party has served his responsive pleading. (Sec. 2, Rule 1, Rules of %he court, in allowing the Court) amendment, would not be acting without jurisdiction because allowing an amendment as a matter of right does not re?uire the e9ercise of discretion. %he court therefore would not be PactingP and thus, could not


Page 28 of 66

%he motion to dismiss should be granted. (urisdiction must be conferred by the contents of the original complaint. Amendments are not proper and should be denied where the court has no jurisdiction over the original complaint and the purpose of the amendment is to confer jurisdiction on the court. (osario v. Caran#ang, ".. %o. 8 7076, )$ril 2/, &9**!

3hile a plainti is entitled to amend the complaint before a responsive pleading is served (Sec. 2, Rule 1, 1997 Rules of Ciil eington +n#ustrial Sales

!roce"ure ;

Cor$oration v. Court of )$$eals, ".. %o. &6*7, Ma 29, 2002 ),

still, a complaint cannot be amended to confer jurisdiction on a court where there was none to begin with. Pleadings" Amendment of Comlaint" %o Conform 2 vidence ('?)

During trial, plainti was able to present, without objection on the part of defendant in an ejectment case, evidence showing that plainti served on defendant a written demand to vacate the subject property before the commencement of the suit, a matter not alleged or otherwise set forth in the pleadings on ;le. @ay the corresponding pleading still be amended to conform to the evidence5 "9plain. 6<+8 SUGGESTED ANSWER4

Nes. %he corresponding pleading may still be amended to conform to the evidence, because the written demand to vacate, made prior to the commencement of the ejectment suit, was presented by the plainti in evidence without objection on the part of the defendant. "ven if the demand to vacate was jurisdictional, still, the amendment proposed was to conform to the evidence that was already in the record and not to confer jurisdiction on the court, which is not allowed. $ailure to amend, however, does not aect the result of the trial on these issues. 6!ec. < of 0ule F8.

A%"0'A%&" A'!3"0O &t depends. &n forcible entry, the motion may be allowed at the discretion of the court, the demand having been presented at the trial without objection on the part of the defendant. &n unlawful detainer, however, the demand to vacate is jurisdictional and since the court did not ac?uire jurisdiction from the very beginning, the motion to conform to the evidence cannot be entertained. %he amendment cannot be allowed because it will in eect confer jurisdiction when there is otherwise no jurisdiction.

Pleadings" Ans2er" 8efense" Secific 8enial ('?) &n his complaint for foreclosure of mortgage to which was duly attached a copy of the mortgage deed, plainti // alleged inter alia as followsO 68 that defendant DD duly e9ecuted the mortgage deed, Version 1997-2006 !dated "#

Dondee


copy of which is Anne9 PAP of the complaint and made an integral part thereofI and 678 that to prosecute his complaint, plainti contracted a lawyer, CC, for a fee of /
Does defendantJs answer as to plaintiLs allegation no.  as well as no. 7 suiciently raise an issue of fact5 0eason brie=y. 6<+8 SUGGESTED ANSWER4

As to plaintis allegation no. , defendant does not suiciently raise an issue of fact, because he cannot allege lac2 of 2nowledge of the mortgage deed since he should have personal 2nowledge as to whether he signed it or not and because he did not deny under oath the genuineness and due e9ecution of the mortgage deed, which is an actionable document. As to plaintiLs allegation no. 7, defendant did not properly deny liability as to plaintis contracting with a lawyer for a fee. :e did not even deny for lac2 of 2nowledge. (Sec. 1 of Rule *). Pleadings" Certification Against &orum S,oing (')

As counsel for A, B, C and D, Atty. RN prepared a complaint for recovery of possession of a parcel of land against S. Before ;lling the complaint, RN discovered that his clients were not available to sign the certi;cation of non-forum shopping. %o avoid further delays in the ;ling of the complaint, RN signed the certi;cation and immediately ;led the complaint in court. &s RN justi;ed in signing the certi;cation5 3hy5 6<+8 SUGGESTED ANSWER4

'#, counsel cannot sign the anti-forum shopping certi;cation because it must be e9ecuted by the Tplainti or principal partyU himself (Sec. *, ule 7; 4cor$io v. :niversit of Baguio, 06 SC) '97, F&999D!, since the rule re?uires

personal 2nowledge by the party e9ecuting the certi;cation, '"!! counsel gives a good reason why he is not able to secure his clientsL signatures and shows that his clients will be deprived of substantial justice (rti v. Court of )$$eals, 299 SC) 70/, F&99/D! or unless he is authoriGed to sign it by his

clients through a special power of attorney. Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('?) /R ;led a suit for damages against DN. &n his answer, DN incorporated a counterclaim for damages against /R and AC, counsel for plainti in said suit, alleging in said counterclaim, inter alia, that AC, as such counsel, maliciously induced /R to bring the suit against DN despite ACJs 2nowledge of its utter lac2 of factual and legal basis. &n due time, AC ;led a motion to dismiss the counterclaim as against him on the ground that he is not a proper party to the case,

Page 29 of 66 he being merely plaintis counsel. &s the counterclaim of DN compulsory or not5 ACJs motion !hould to


dismiss the counterclaim be granted or not5 0eason. 6<+8 SUGGESTED ANSWER4

Nes. %he counterclaim of DN is compulsory because it is one which arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing partyJs claim and does not re?uire for its adjudication the presence of third parties of whom the court cannot ac?uire jurisdiction.(Sec. 7 of Rule ).

%he motion to dismiss of plaintis counsel should not be granted because bringing in plaintis counsel as a defendant in the counterclaim is authoriGed by the 0ules. 3here it is re?uired for the grant of complete relief in the determination of the counterclaim, the court shall order the defendantJs counsel to be brought in since jurisdiction over him can be obtained. (Sec. &2 of ule 6; )urelio v. Court of )$$eals, &96 SC) 67' F&99'D!. :ere, the

counterclaim was against both the plainti and his lawyer who allegedly maliciously induced the plainti to ;le the suit. ALTERNATI3E ANSWER4

%he

counterclaim

should

be

dismissed because it is not a compulsory counterclaim. 3hen a lawyer ;les a case for a client, he should not be sued on a counterclaim in the very same case he has ;led as counsel. &t should be ;led in a separate and distinct civil action. (Chave v. San#igan3aan, &9 SC) 2/2

F&99&D!

Pleadings" :otions" Bill of Particulars (')

. 3hen can a bill of particulars be availed of5 7. 3hat is the eect of non-compliance with the

order of a bill of particulars5 >+ SUGGESTED ANSWER4

1. Before responding to a pleading, a party may move for a bill or particulars of any matter which is not averred with suicient de;niteness or particularity to enable him properly to prepare his responsive pleading. &f the pleading is a reply, the motion must be ;led within ten 6F8 days from service thereof. (Sec. 1 of Rule 12) 2. &f the order is not complied with, the

court may order the stri2ing out of the pleading or the portions thereof to which the order was directed or ma2e such other order as it deems just. (Sec. 4 of Rule 12) Pleadings" ely" ffect of =on$&iling of ely (') R ;les a complaint in the 0%C for the recovery of a sum of money with damages against N. N ;les his answer denying liability under the contract of sale and praying for the dismissal of the complaint on the ground of lac2 of cause of action because the contract of sale was superseded by a contract of lease, Version 1997-2006 !dated "#

Dondee


e9ecuted and signed by R and N two wee2s after the contract of sale was e9ecuted. %he contract of lease was attached to the answer. R does not ;le a reply. 3hat is the eect of the non-;ling of a reply5 "9plain. 6*+8 SUGGESTED ANSWER4

A reply is generally optional. &f it is not ;led, the new matters alleged in the answer are deemed controverted. (Sec. 1 of Rule ). :owever, since the contract of lease attached to the answer is the basis of the defense, by not ;ling a reply denying under oath the genuineness and due e9ecution of said contract, the plainti is deemed to have admitted the genuineness and due e9ecution thereof.

&n the event the plainti ;les a reply, his duty to move that the case be set for pretrial arises after the reply has been served and ;led. Provisional emedies (1999)

3hat are the provisional remedies under the rules5 67+8 SUGGESTED ANSWER4

%he provisional remedies under the rules are preliminary attachment, preliminary injunction, receivership, replevin, and support pendente lite. (Rules 7 to 1, Rules of Court).

(Secs. 7 an# /

ule /; 5ori3io v. Bi#in, &2 SC) &62 F&9/*D!.

Pre/udicial uestion" Performance (')

/ectment

vs.

Secific

BB ;les a complaint for ejectment in the @%Con the ground of non-payment of rentals against ((. After two days, (( ;les in the 0%C a complaint against BB for speci;c performance to enforce the option to purchase the parcel of land subject of the ejectment case. 3hat is the eect of ((Ls action on BBLs complaint5 "9plain. 6<+8 SUGGESTED ANSWER4

%here is no eect. %he ejectment case involves possession de facto only. %he action to enforce the option to purchase will not suspend the action of ejectment for non-payment of rentals. (Killan )uto Su$$l Cor$. v. Court of )$$eals, 20/ SC) &0/ F&992D!.

Pre$%rial" e
ilio ;led a complaint in the @unicipal %rial Court of anuGa for the recovery of a sum against (uan. %he latter ;led his answer to the complaint serving a copy thereof on ilio. After the ;ling of the answer of (uan, whose duty is it to have the case set for pre-trial5 3hy5 6<+8 SUGGESTED ANSWER4

After the ;ling of the answer of (uan, the /A&'%&$$ has the duty to promptly move e9 parte that the case be set for pre-trial. (Sec. 1, Rule1*). %he reason is that it is the plainti who 2nows when the last pleading has been ;led and it is the plainti who has the duty to prosecute. ALTERNATI3E ANSWER4

(Sec. 2 of Rule


Page 30 of

66 Provisional emedies" Attac,ment (1999)

&n a case, the property of an incompetent under guardianship was in custodia legis. Can it be attached5 "9plain. 67+8 SUGGESTED ANSWER4

Although the property of an incompetent under guardianship is in custodia legis, it may be attached as in fact it is provided that in such case, a copy of the writ of attachment shall be ;led with the proper court and notice of the attachment served upon the custodian of such property. (Sec. 7, l%st 8%r., Rule 7)

Provisional emedies" Attac,ment (1999)

@ay damages be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him5 "9plain. 67+8 SUGGESTED ANSWER4

Nes, damages may be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him. %his is authoriGed by the 0ules. A claim, for damages may be made on account of improper, irregular or e9cessive attachment, which shall be heard with notice to the adverse party and his surety or sureties. (Sec. 20, ule *7; -avellana v. . .

Plaa 4nter$rises +nc., 2 SC) 2/&.!

Provisional emedies" Attac,ment ('1)

@ay a writ of preliminary attachment be issued e9- parte5 Brie=y state the reason6s8 for

your answer. 6*+8 SUGGESTED ANSWER4

Nes, an order of attachment may be issued e9-parte

or upon motion with notice and hearing. %he reason why the order may be issued e9 parte isO that re?uiring notice to the adverse party and a hearing would defeat the purpose of the provisional remedy and enable the adverse party to abscond or dispose of his property before a writ of attachment issues. (Min#anao Savings an# 7)

8oan )ssociation, +nc. v.

Court of )$$eals, &72 SC) '/0!.

Provisional emedies" Attac,ment (') 4aty ;led an action against %yrone for collection of the sum of / @illion in the 0%C, with an e9-parte application for a writ of preliminary attachment. pon posting of an attachment bond, the court granted the application and issued a writ of preliminary attachment. Apprehensive that %yrone might withdraw his savings deposit with the ban2, the sheri immediately served a notice of garnishment on the ban2 to implement the writ of preliminary attachment. %he following day, the sheri proceeded to %yroneJs house and served him the summons, with copies of the complaint containing the application for writ of preliminary attachment, 4atyJs aidavit, order of attachment, writ of preliminary attachment and attachment bond.

3ithin ;fteen 6<8 days from service of the summons, %yrone ;led a motion to dismiss and to Version 1997-2006 !dated "#

Dondee

attachment that should be served on the defendant, and a notice that the ban2 deposits are attached pursuant to the writ. (Sec. 7["], Rule 7) 6*8

%he writ was improvidently issued if indeed it can be shown that the obligation was already fully paid. %he writ is only ancillary to the main action. (Sec. 13, %he alleged payment of the account cannot,

serve as a ground for resolving the improvident issuance of the writ, 34 [1917]).

(:%"%r%n . S%nt%m%ri%, 37 !0il.

because this matter delves into the merits of the case, and re?uires fullblown trial. /ayment, however, serves as a ground for a motion to dismiss. Provisional emedies" Attac,ment vs. 3arnis,ment (1999)

Distinguish attachment from garnishment. 67+8 SUGGESTED ANSWER4

Rule 7) Remedial Law Bar Examination Q & A (1997-2006)

dissolve the writ of preliminary attachment on the following groundsO 6i8 the court did not ac?uire jurisdiction over his person because the writ was served ahead of the summonsI 6ii8 the writ was improperly implementedI and 6iii8 said writ was improvidently issued because the obligation in ?uestion was already fully paid. 0esolve the motion with reasons. 6>+8

Attachment and garnishment are distinguished from each other as followsO A%%AC:@"'% is a provisional remedy that eects a levy on property of a party as security for the satisfaction of any judgment that may be recovered, while 1A0'&!:@"'% is a levy on debts due the judgment obligor or defendant and other credits, including ban2 deposits, royalties and other personal property not capable of manual delivery under a writ of e9ecution or a writ of attachment. Provisional emedies" n/unction ('1)

SUGGESTED ANSWER4

%he motion to dismiss and to dissolve the writ of preliminary attachment should be denied. 68 %he fact that the writ of attachment was served ahead of the summons did not aect the jurisdiction of the court over his person. &t ma2es the writ, unenforceable. (Sec. , Rule. 7) :owever, all that is needed to be done is to re-serve the writ. (nate v. )3rogar, "M. %o. &979, e3ruar 2, &9/*!

678 %he writ was improperly implemented. !erving a notice of garnishment, particularly before summons is served, is not proper. &t should be a copy of the writ of

Rules of Ciil !roce"ure)

(Sec. 4, Rule * 1997

@ay a writ of preliminary injunction be issued e9- parte5 3hy5 6*+8 SUGGESTED ANSWER4

'o, a writ of preliminary injunction may not be issued e9 parte. As provided in the 0ules, no preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. (Sec.  of Rule *) %he reason is that a


Page 31 of 66

preliminary injunction may cause grave and irreparable injury to the party enjoined. Provisional emedies" n/unction (')

Can a suit for injunction be aptly ;led with the !upreme Court to stop the /resident of the /hilippines from entering into a peace agreement with the 'ational Democratic $ront5 6>+8 SUGGESTED ANSWER4

'o, a suit for injunction cannot aptly be ;led with the !upreme Court to stop the /resident of the /hilippines from entering into a peace agreement with the 'ational Democratic $ront, which is a

purely political ?uestion. %he /resident of the /hilippines is

immune from suit. Provisional emedies" n/unctions" Ancillary emedy vs. :ain Action ('+)

Distinguish between injunction as an ancillary remedy and injunction as a main action. 67.<+8 SUGGESTED ANSWER4

&njunction as an ancillary remedy refers to the preliminary injunction which re?uires the e9istence of a pending principal caseI while injunction as a main action refers to the principal case itself that prays for the remedy of permanently restraining the adverse party from doing or not doing the act complained of. Provisional emedies" n/unctions" ssuance 2out Bond ('+)

@ay a 0egional %rial Court issue injunction without bond5 67+8 SUGGESTED ANSWER4

Nes, if the injunction that is issued is a ;nal injunction. 1enerally, however, preliminary injunction cannot issue without bond unless e9empted by the trial court (Sec. 4[b] of Rule *).

Provisional emedies" n/unctions" e
injunction5 0e?uisites for the issuance of aO SUGGESTED ANSWER4

a.

3rit of /reliminary &njunction

are V

68 A veri;ed complaint showingI 678 %he e9istence of a right in esseI 6*8 iolation or threat of violation of such rightI 6>8 Damages or injuries sustained or that will be sustained by reason of such violationI 6<8 'otice to all parties of rae and of hearingI 6K8 :earing on the applicationI 6E8 $iling of an appropriate bond and service thereof. SUGGESTED ANSWER4

b. 3hile a ;nal writ of injunction may be rendered by judgment after trial, showing applicant to be entitled to the writ (Sec. 9, Rule * 1997 Rules of Ciil !roce"ure). Version 1997-2006 !dated "# Dondee


Provisional emedies" eceivers,i ('1) (oa?uin ;led a complaint against (ose for the foreclosure of a mortgage of a furniture factory with a large number of machinery and e?uipment. During the pendency of the foreclosure suit, (oa?uin learned from reliable sources that (ose was ?uietly and gradually disposing of some of his machinery and e?uipment to a businessman friend who was also engaged in furniture manufacturing such that from con;rmed reports (oa?uin gathered, the machinery and e?uipment left with (ose were no longer suicient to answer for the latterLs mortgage indebtedness. &n the meantime judgment was rendered by the court in favor of (oa?uin but the same is not yet ;nal.

4nowing what (ose has been doing. &f you were (oa?uinLs lawyer, what action would you ta2e to preserve whatever remaining machinery and e?uipment are left with (ose5 3hy5 6<+8 SUGGESTED ANSWER4

%o preserve whatever remaining machinery and e?uipment are left with (ose, (oa?uinLs lawyer should ;le a veri;ed application for the appointment by the court of one or more receivers. %he 0ules provide that receivership is proper in an action by the mortgagee for the foreclosure of a mortgage when it appears that the property is in danger of being wasted or dissipated or materially injured and that its value is probably insuicient to discharge the mortgage debt. (Sec. 1 of Rule 9).

Provisional emedies" elevin (1999)

3hat is 0eplevin5 67+8 SUGGESTED ANSWER4

0eplevin or delivery of personal property consists in the delivery, by order of the court, of personal property by the defendant to the plainti, upon the ;ling of a bond. (Calo v. ol#an, 76 Phil. ''* F&9'6D!

Provisional emedies" Suort Pendente 0ite (1999)

Before the 0%C, A was charged with rape of his Kyear old daughter. During the pendency of the case, the daughter gave birth to a child allegedly as a conse?uence of the

rape. %hereafter, she as2ed the accused to support the child, and when he refused, the former ;led a petition for support pendente lite. %he accused, however, insists that he cannot be made to give such support arguing that there is as yet no ;nding as to his guilt. 3ould you agree with the trial court if it denied the application for support pendente lite5 "9plain. 67+8 SUGGESTED ANSWER4

'o. %he provisional remedy of support pendente lite may be granted by the 0%C in the criminal action for rape. &n criminal actions where the civil liability includes support for the ospring as a conse?uence of the crime and the civil aspect thereof has not been


Page 32 of 66

waived, reserved or instituted prior to its ;ling, the accused may be ordered to provide support pendente lite to the child born to the oended party allegedly because of the crime. (Sec.  of Rule 1.)

Provisional emedies" Suort Pendente 0ite ('1) @odesto was accused of seduction by irginia, a poor, unemployed young girl, who has a child by @odesto. irginia was in dire need of pecuniary assistance to 2eep her child, not to say of herself, alive. %he criminal case is still pending in court and although the civil liability aspect of the crime has not been waived or reserved for a separate civil action, the trial for the case was foreseen to ta2e two long years because of the heavily clogged court calendar before the judgment may be rendered.

&f you were the lawyer of irginia, what action should you ta2e to help irginia in the meantime especially with the problem of feeding the child5 6<+8 SUGGESTED ANSWER4

%o help irginia in the meantime, her lawyer should apply for Su88ort !en"ente +ite as provided in the 0ules. &n criminal actions where the civil liability included support for the ospring as a conse?uence of the crime and the civil aspect thereof has not been waived or reserved for a separate civil action, the accused may be ordered to provide support pendent elite to the child born to the oended

party. (Sec.  of Rule 1) Provisional emedies" %* ('1) An application for a writ of preliminary injunction with a prayer for a temporary restraining order is included in a complaint and ;led in a multi-sala 0%C consisting of Branches ,7,* and >. Being urgent in nature, the "9ecutive (udge, who was sitting in Branch , upon the ;ling of the aforesaid application immediately raed the case in the presence of the judges of Branches 7,* and >. %he case was raed to Branch > and judge thereof immediately issued a temporary restraining order.

&s the temporary restraining order valid5 3hy5 6<+8 SUGGESTED ANSWER4

'o. &t is only the "9ecutive (udge who can issue immediately a temporary restraining order eective only for seventy-two 6E78 hours from issuance. 'o other (udge has the right or power to issue a temporary restraining order e9 parte. %he (udge to whom the case is assigned will then conduct a summary hearing to determine whether the temporary restraining order shall be e9tended, but in no case beyond 7F days, including the original E7- hour period. (Sec.  of Rule *) ALTERNATI3E ANSWER4

%he temporary restraining order is not valid because the ?uestion does not state that the matter is of e9treme urgency and the applicant will suer grave injustice and irreparable injury. (Sec.  of Rule *) Version 1997-2006 !dated "#

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Provisional emedies" %* ('+)

De;ne a temporary restraining order 6%0#8. 67+8

e9ercise of his regular functions over cases assigned to his sala, an "9ecutive (udge may issue a %0# for a duration not e9ceeding a total of 7F days.

SUGGESTED ANSWER4

A temporary restraining order is an order issued to restrain the opposite party and to maintain the status ?uo until a hearing for determining the propriety of granting a preliminary injunction (Sec. 4[c] %n" ["], Rule *,1997 Rules of Ciil !roce"ure).

Provisional emedies" %* vs. Status uo *rder ('+)

Dierentiate a %0# from a status ?uo order. 67+8 SUGGESTED ANSWER4

A status ?uo order 6!M#8 is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts, as in the case of prohibitory or mandatory injunctive relief. A %0# is only good for 7F days if issued by the 0%CI KF days if issued by the CAI until further notice if issued by the !C. %he !M# is without any prescriptive period and may be issued without a bond. A %0# dies a natural death after the allowable periodI the !M# does not. A %0# is provisional. !M# lasts until revo2ed. A %0# is not e9tendible, but the !M# may be subject to agreement of the parties. Provisional emedies" %*" CA Justice 8et. ('+)

@ay a justice of a Division of the Court of Appeals issue a %0#5 67+8 SUGGESTED ANSWER4

Nes, a justice of a division of the Court of Appeals may issue a %0#, as authoriGed under 0ule < and by !ection <, 0ule & of the &0CA which additionally re?uires that the action shall be submitted on the ne9t wor2ing day to the absent members of the division for the rati;cation, modi;cation or recall (
Provisional emedies" %*" 8uration ('+)

3hat is the duration of a %0# issued by the "9ecutive (udge of a 0egional %rial Court5 67+8 SUGGESTED ANSWER4

&n cases of e9treme urgency, when the applicant will suer grave injustice and irreparable injury, the duration of a %0# issued e9 parte by an "9ecutive (udge of a 0egional %rial Court is E7 hours (2n" 8%r. of Sec. , Rule * 1997 Rules of Ciil !roce"ure). &n the

eglementary Period" Sulemental Pleadings (') %he 0%C rendered judgment against !%, copy of which was received by his counsel on $ebruary 7, 7FFF. #n @arch F, 7FFF, !%, through counsel, ;led a motion for reconsideration of the decision with notice to the Cler2 of Court submitting the motion for the consideration of the court. #n @arch <, 7FFF, realiGing that the @otion lac2ed a notice of hearing, !%Ls counsel ;led a supplemental pleading.


Page 33 of

66 3as the motion for 0econsideration ;led within the reglementary period5 "9plain. 6<+8 SUGGESTED ANSWER4

Nes, because the last day of ;ling a motion for reconsideration was @arch < if $ebruary had 7 days or @arch K if $ebruary had 7H days. Although the original motion for reconsideration was defective because it lac2ed a notice of hearing, the defect was cured on time by its ;ling on @arch < of a supplemental pleading, provided that motion was set for hearing and served on the adverse party at least three 6*8 days before the date of hearing. (Sec. 4, Rule 1). ALTERNATI3E ANSWER4

!ince the supplemental pleading was not set for hearing, it did not cure the defect of the original motion. emedies" Aeal to SC" Aeals to CA ('')

a8 3hat are the modes of appeal to the !upreme Court5 67+8 b8 Comment on a proposal to amend 0ule 77, !ection 76b8, in relation to !ection *6c8, of the 0evised 0ules of Criminal /rocedure to provide for appeal to the Court of Appeals from the decisions of the 0%C in criminal cases, where the penalty imposed is reclusion perpetua or life imprisonment, subject to the right of the accused

to appeal to the !upreme Court. 6*+8

SUGGESTED ANSWER4

A. %he modes of appeal to the !upreme Court areO 6a8 A//"A BN C"0%�A0& on pure ?uestions of law under 0ule >< through a petition for review on certiorariI and 6b8 #0D&'A0N A//"A in criminal cases through a notice of appeal from convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty is involved but for oenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious oense. (Rule 122, sec. 3) Convictions imposing the death penalty are elevated through automatic review. B. %here

is no constitutional objection to providing in the 0ules of Court for an appeal to the Court of Appeals from the decisions of the 0%C in criminal cases where the penalty imposed is reclusion perpetua or life imprisonment subject to the right of the accused to appeal to the !upreme Court, because it does not deprive the !upreme Court of the right to e9ercise ultimate review of the judgments in such cases. emedies" Aeal" %C to CA (1999)

a. 3hen is an appeal from the 0%C to the Court of Appeals deemed perfected5 67+W b. RRR received a copy of the 0%C decision on (une H, HHHI NNN received it on the ne9t day, (une F, HHH. RRR ;led a 'otice of Appeal on (une <, HHH. %he parties entered into a compromise on Version 1997-2006 !dated "#

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(une K, HHH. #n (une *, HHH, NNN, who did not appeal, ;led with the 0%C a motion for approval of the Compromise Agreement. RRR changed his mind and opposed the motion on the ground that the 0%C has no more jurisdiction. 0ule on the motion assuming that the records have not yet been forwarded to the CA. 67+8 SUGGESTED ANSWER4

a. An appeal from the 0%C to the Court of Appeals is deemed perfected as to the appellant upon the ;ling of a notice of appeal in the 0%C in due time or within the reglementary period of appeal. An appeal by record on appeal is deemed perfected as to the appellant with respect to the subject matter thereof upon the approval of the record on appeal ;led in due time. (Sec. 9, Rule 41) b.

%he contention of RRR that the 0%C has no more jurisdiction over the case is not correct because at the time that the motion to approve the compromise had been ;led, the period of appeal of NNN had not yet e9pired. Besides, even if that period had already e9pired, the records of the case had not yet been forwarded to the Court of Appeals. %he rules provide that in appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals ;led in due time and the

e9piration of the time to appeal of the other parties. (Sec. 9, t0ir" 8%r., Rule 41)

%he rules also provide that prior to the transmittal of the record, the court may, among others, approve compromises. (Sec. 9, ft0 8%r., Rule 41) 6'oteO (une *, the date of the ;ling of the motion for approval of the Compromise Agreement, appears to be a clerical error8 emedies" Aeal" ule ? vs. ule + (1999)

a8 Distinguish a petition for certiorari as a mode of appeal from a special civil action for certiorari. 67+8 b8 @ay a party resort to certiorari when appeal is

still available5 "9plain. 67+8 SUGGESTED ANSWER4

a. A /"%&%&#' $#0 0"&"3 #' C"0%�A0& as a mode of appeal may be distinguished from a special civil

action for certiorari in that the petition for certiorari as a mode of appeal is governed by 0ule >< and is ;led from a judgment or ;nal order of the 0%C, the !andiganbayan or the Court of Appeals, within ;fteen 6<8 days from notice of the judgment appealed from or of the denial of the motion for new trial or reconsideration ;led in due time on ?uestions of law only (Secs. 1 %n" 2)I !/"C&A C&& AC%&#' $#0 C"0%�A0& is governed by 0ule K< and is ;led to annul or modify judgments, orders or resolutions rendered or issued without or in e9cess of jurisdiction or with grave abuse of discretion tantamount to lac2 or e9cess of jurisdiction, when


Page 34 of 66

there is no appeal nor any plain, speedy and ade?uate remedy in the ordinary course of law, to be ;led within si9ty 6KF8 days from notice of the judgment, order or resolution subject of the 6!ecs. petition.  and >.8 ADDITIONAL ANSWER4

8 &n appeal by certiorari under 0ule ><, the petitioner and respondent are the original parties to the action and the lower court is not impleaded. &n certiorari, under 0ule K<, the lower court is impleaded.

78 &n appeal by certiorari, the ;ling of a motion for reconsideration is not re?uired, while in the special civil action of certiorari, such a motion is generally re?uired. SUGGESTED ANSWER4

b. '#, because as a general rule, certiorari is proper if there is no appeal (Sec. 1 of Rule .) :owever, if appeal is not a speedy and ade?uate remedy, certiorari may be resorted to. (4chaus v. Court of )$$eals, &99 Certiorari is SC) /&.! sanctioned, even if appeal is available, on the basis of a patent, capricious and whimsical e9ercise of discretion by a trial judge as when an appeal will not promptly relieve petitioner from the injurious eects of the disputed order (=as?ue vs. o3illa)lenio, 27& SC) 67!

emedies" 5oid 8ecision" Proer emedy ('?) After plainti in an ordinary civil action before the 0%CI SS has completed presentation of his evidence, defendant without prior leave of court moved for dismissal of plaintis complaint for insuiciency of plaintiLs evidence. After due hearing of the motion and the opposition thereto, the court issued an order, reading as followsO %he Court hereby grants defendantJs motion to dismiss and accordingly orders the dismissal of plaintiLs complaint, with the costs ta9ed against him. &t is so ordered.P &s the

order of dismissal valid5 @ay plainti properly ta2e an appeal5 0eason. 6<+8 SUGGESTED ANSWER4

%he order or decision is void because it does not state ;ndings of fact and of law, as re?uired by !ec. >, Article &&& of the Constitution and !ec. , 0ule *K. Being void, appeal is not available. %he proper remedy is certiorari under 0ule K<. ANOT5ER ANSWER4

"ither certiorari or ordinary appeal may be resorted to on the ground that the judgment is void. Appeal, in fact, may be the more e9pedient remedy. ALTERNATI3E ANSWER4

Nes. %he order of dismissal for insuiciency of the plaintis evidence is valid upon defendantJs motion to dismiss even without prior leave of court. (Sec. 1 of Rule 33). Nes, plainti may properly ta2e an appeal because the dismissal of the complaint is a ;nal and appealable order. :owever, if the order of dismissal is reversed Version 1997-2006 !dated "# Dondee

have waived his right to present evidence. 6&d.8 Secial Civil Action" /ectment (1997)

#n F (anuary HHF, R leased the warehouse of A under a lease contract with a period of ;ve years. #n F (une HHK, A ;led an unlawful detainer case against R without a prior demand for R to vacate the premises. 6a8 Can R contest his ejectment on the ground that there was no prior demand for him to vacate the premises5 6b8 &n case the @unicipal %rial Court renders judgment in favor of A, is the judgment immediately

e9ecutory5 SUGGESTED ANSWER4

6a8 Nes. R can contest his ejectment on the ground that there was no prior demand to vacate the premises. 6Sec. 2 of ule 70; Casilan vs.5oassi l0 SC) 26&; +esaca vs.Cuevas. &2* SC) *8.

6b8 Nes, because the judgment of the @unicipal %rial Court against the defendant R is immediately e9ecutory upon motion unless an appeal has been perfected, a supersedeas bond has been ;led and the periodic deposits of current rentals. &f any, as determined by the judgment will be made with the appellate court. (Sec. * of former Rule 7; Sec. 19 of new Rule 7). ALTERNATI3E ANSWER4

6a8 Nes, R can contest his ejectment on the ground that since he continued enjoying the thing leased for ;fteen days after the termination of the lease on (anuary H, HH< with the ac?uiescence of the lessor without a notice to the contrary, there was an &@/&"D '"3 "A!". (-rt. 17. Ciil Co"e). Secial Civil Action" /ectment (199!)

5i. 129, %s %men"e".) Remedial Law Bar Examination Q & A (1997-2006)

on appeal, the plainti is deemed to

&n an action for unlawful detainer in the @unicipal %rial Court 6@%C8, defendant R raised in his Answer the defense that plainti A is not the real owner of the house subject of the suit. R ;led a counterclaim against A for the collection of a debt of /F,FFF plus accrued interest of /<,FFF and attorneyJs fees of /7F,FFF. . &s RJs defense tenable5 )*+ 7. Does the @%C have jurisdiction over the counterclaim5 )7+ SUGGESTED ANSWER4 O

'o. RJs defense is not tenable if the by: [email protected] Page 35 of 66 action is ;led by a lessor against a summary procedure and since the lessee. :owever, if the right of counterclaim is only permissive, it possession of the plainti depends cannot be entertained by the on his ownership then the defense is @unicipal Court. (Reise" Rule on Summ%r$ !roce"ure.) tenable. .

7. %he counterclaim is within the jurisdiction of the @unicipal %rial Court which does not e9ceed /FF,FFF, because the principal demand is /F,FFF, e9clusive of interest and attorneyJs fees. (Sec. 33, 5.!.

:owever, inasmuch as all actions of forcible entry and unlawful detainer are subject to

Secial Civil Action" &oreclosure (') A borrowed from the Development Ban2 of the /hilippines 6DB/8 the amount of / million secured by the titled land of his friend B who, however, did not assume personal liability for the loan. A defaulted and DB/ ;led an action for judicial foreclosure of the real estate mortgage impleading A and B as defendants. &n due course, the court rendered judgment directing A to pay the outstanding account of /.< million 6principal plus interest8 to the ban2. 'o appeal was ta2en by A on the Decision within the reglementary period. A failed to pay the judgment debt within the period speci;ed in the decision. Conse?uently, the court ordered the foreclosure sale of the mortgaged land. &n that foreclosure sale, the land was sold to the DB/ for /.7 million. %he sale was subse?uently con;rmed by the court, and the con;rmation of the sale was registered with the 0egistry of Deeds on F< (anuary 7FF7.

#n F (anuary 7FF*, the ban2 ;led an e9-parte motion with the court for the issuance of a writ of possession to oust B from the land. &t also ;led a de;ciency claim for /FF,FFF.FF against A and B. the de;ciency claim was opposed by A and B. 6a80esolve the motion for the issuance of a writ of possession. 6b8 0esolve the de;ciency claim of the ban2. K+ SUGGESTED ANSWER4

6a8 &n judicial foreclosure by ban2s such as DB/, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property sold within one year after the sale 6or registration of the sale8. :owever, the purchaser at the auction sale has the right to obtain a writ of possession after the ;nality of the order con;rming the sale. (Sec. 3 of Rule *; Sec. 47 of R- *791. 0e ener%l 5%nin +%w of 2). %he motion for writ

of possession, however, cannot be ;led e9 parte. %here must be a

notice of hearing. 6b8 %he de;ciency claim of the be enforced against the debtor A, but it cannot be against B, the owner mortgaged property, who assume personal liability for

ban2 may mortgage enforced of the did not the loan.

Secial Civil Action" Petition for Certiorari ('')

%he defendant was declared in default in the 0%C for his failure to ;le an answer to a complaint for a sum of money. #n the basis of the plaintiLs e9 parte presentation of evidence, judgment by default was rendered against the defendant. %he default judgment was served on the defendant on #ctober , 7FF. #n #ctober F, 7FF, he ;les a veri;ed motion to lift the Version 1997-2006 !dated "#

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order of default and to set aside the judgment. &n his motion, the defendant alleged that, immediately upon receipt of the summon, he saw the plainti and confronted him with his receipt evidencing his payment and that the plainti assured him that he would instruct his lawyer to withdraw the complaint. %he trial court denied the defendantLs motion because it was not accompanied by an aidavit of merit. %he defendant ;led a special civil action for certiorari under 0ule K< challenging the denial order.

A. &s certiorari under 0ule proper remedy5 3hy5 67+8

K<

the

B. Did the trial court abuse its discretion or act without or in e9cess of its jurisdiction in denying the defendantLs motion to lift the order of default

judgment5 3hy5 6*+8 SUGGESTED ANSWER4

A. %he petition for certiorari under 0ule K< ;led by the defendant is the proper remedy because appeal is not a plain, speedy and ade?uate remedy in the ordinary course of law. &n appeal, the defendant in default can only ?uestion the decision in the light of the evidence of the plainti. %he defendant cannot invo2e the receipt to prove payment of his obligation to the plainti. ALTERNATI3E ANSWER4

A. nder ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or ;le a petition for relief from judgment. F-ao, +nc. v. Court of )$$eals,

2*& SC) 9& (&99*! SUGGESTED ANSWER4

B. Nes, the trial court gravely abused its discretion or acted without or in e9cess of jurisdiction in denying the defendantLs motion because it was not accompanied by a separate aidavit of merit. &n his veri;ed motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately upon the receipt of the summons, he saw the plainti and confronted him with his receipt showing payment and that the plainti assured him that he would instruct his lawyer to withdraw the complaint. !ince the good defense of the defendant was already incorporated in the veri;ed motion, there

was not need for a separate aidavit of merit. FCa$u v. Court of )$$eals, 2 SC) '7& (&99'!; Mago v. Court SC) 600 (&999!D.

of )$$eals, 0

Secial Civil Action" uo arranto ('1) A group of businessmen formed an association in Cebu City calling itself Cars C. to distribute  sell cars in said city. &t did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. %he !olicitor 1eneral ;led before a 0%C in @anila a veri;ed petition for ?uo warranto ?uestioning and see2ing to stop the operations of Cars Co. %he latter ;led a motion to dismiss the petition on the ground of improper venue


Page 36 of 66

claiming that its main oice and operations are in Cebu City and not in @anila. &s the contention of Cars Co. correct5 3hy5 6<+8 SUGGESTED ANSWER4

'o. As e9pressly provided in the 0ules, when the !olicitor 1eneral commences the action for ?uo warranto, it may be brought in a 0%C in the City of @anila, as in this case, in the Court of Appeals or in the !upreme Court. (Sec. 7 of Rule ) Secial Civil Actions" :andamus ('+) &n HHK, Congress passed 0epublic Act 'o. H, otherwise 2nown as the oterJs 0egistration Act of HHK, providing for computeriGation of elections. /ursuant thereto, the C#@""C approved the oterJs 0egistration and &denti;cation !ystem 60&!8 /roject. &t issued invitations to pre-?ualify and bid for the project. After the public bidding, $oto2ina was declared the winning bidder with a bid of /K billion and was issued a 'otice of Award. But C#@""C Chairman 1ener 1o objected to the award on the ground that under the Appropriations Act, the budget for the C#@""CJs moderniGation is only / billion. :e announced to the public that the 0&! project has been set aside. %wo Commissioners sided with Chairman 1o, but the majority voted to uphold the contract.

@eanwhile, $oto2ina ;led with the 0%C a petition for mandamus compel the

C#@""C to implement the contract. %he #ice of the !olicitor 1eneral 6#!18, representing Chairman 1o, opposed the petition on the ground that mandamus does not lie to enforce contractual obligations. During the proceedings, the majority Commissioners ;led a manifestation that Chairman 1o was not authoriGed by the C#@""C "n Banc to oppose the petition. +s a $etition for an#aus an a$$ro$riate ree# to enforce contractual o3ligations (*H! SUGGESTED ANSWER4

'o, the petition for mandamus is not an appropriate remedy because it is not available to enforce a contractual obligation. @andamus is directed only to ministerial acts, directing or commanding a person to do a legal duty (CM484C v. IuiAanoPa#illa, "..

%o. &*&992, Se$te3er &/, 2002; Sec. , ule 6*!.

Summons

!even years after the entry of judgment, the plainti ;led an action for its revival. Can the defendant successfully oppose the revival of the judgment by contending that it is null and void because the 0%C- @anila did not ac?uire jurisdiction over his person5 3hy5 6*+8 SUGGESTED ANSWER4

%he 0%C-@anila should deny the motion because it is in violation of the rule that no judgment obligor shall be re?uired to appear before a court, for the purpose of e9amination concerning his property and Version 1997-2006 !dated "#

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income, outside the province or city in which such obligor resides. &n this case the judgment obligor resides in Bulacan. (Rule 39, sec.3).

served with summons for a domestic corporation. Cashier was substituted by treasurer. 6&d.8

Summons" Substituted Service ('?) !ummons was issued by the @@ 0%C and actually received on time by defendant from his Summons (1999) wife at their residence. %he sheri earlier that a8 3hat is the eect of absence of summons on the judgment rendered day had delivered the summons to her at said residence because defendant was not in the case5 67+8 b8 3hen additional defendant is home at the time. %he sheris return or proof impleaded in the action, is it of service ;led with the court in sum states that necessary that summons be served the summons, with attached copy of the complaint, was served on defendant at his upon him5 "9plain. 67+8 c8 &s summons re?uired to be residence thru his wife, a person of suitable age served upon a defendant who was and discretion then residing therein. Defendant substituted for the deceased5 moved to dismiss on

"9plain. 67+8 d8 A sued RR Corporation 6RRC8, a corporation organiGed under /hilippine laws, for speci;c performance when the latter failed to deliver %shirts to the former as stipulated in their contract of sale. !ummons was served on the corporationJs cashier and director. 3ould you consider service of summons on either oicer

suicient5 "9plain. 67+8 SUGGESTED ANSWER4

a8 %he eect of the absence of summons on a judgment would ma2e the judgment null and void because the court would not have jurisdiction over the person of the defendant, but if the defendant voluntarily appeared before the court, his appearance is e?uivalent to the service of summons. (Sec. 2, Rule 14)

b8 Nes. !ummons must be served on an

additional defendant impleaded in the action so that the court can ac?uire jurisdiction over him, unless he ma2es a voluntary appearance. c8 'o. A defendant who was substituted for the deceased need not be served with summons because it is the court which orders him as the legal representative of the deceased to appear and substitute the deceased. (Sec. 1 of Rule 3.)

d8 !ummons on a domestic corporation through its cashier and director are not valid under the present rules. (Sec. 11, Rule 14) %hey have been removed from those who can be


Page 37 of 66

the ground that the court had no jurisdiction over his person as there was no valid service of summons on him because the sheris return or proof of service

does not show that the sheri ;rst made a genuine attempt to serve the summons on defendant personally before serving it thru his wife. &s the motion to dismiss meritorious5 3hat is the purpose of summons and by whom may it be served5 "9plain. 6<+8 SUGGESTED ANSWER4

%he motion to dismiss is not meritorious because the defendant actually received the summons on time from his wife. !ervice on the wife was suicient. (Boticano v. Chu, &'/ SC) *'& F&9/7D!.

&t is the duty of the court to loo2 into the suiciency of the service. %he sheris negligence in not stating in his return that he ;rst made a genuine eort to serve the summons on the defendant, should not prejudice the plainti. (Ma$a v. Court of '&71&992!.

)$$eals,

2&'

SC)

%he purpose of the summons is to inform the defendant of the complaint ;led against him and to enable the court to ac?uire jurisdiction over his person. &t maybe served by the sheri or his deputy or any person authoriGed by the court. ALTERNATI3E ANSWER4

Nes. %he motion to dismiss is meritorious. !ubstituted service cannot be eected unless the sheris

return shows that he made a genuine attempt to eect personal service on the husband. Summons" 5alidity of Service" ffects ('+) %ina 1uerrero ;led with ;led the 0egional %rial Court of Binan, aguna, a complaint for sum of money amounting to / @illion against Carlos Corro. %he complaint alleges, among others, that Carlos borrowed from %ina the said amount as evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by inda, his secretary. :owever, Carlos failed to ;le an answer to the complaint within the <-day reglementary period. :ence, %ina ;led with the court a motion to declare Carlos in default and to allow her to present evidence e9 parte. $ive days thereafter, Carlos ;led his veri;ed answer to the complaint, denying under oath the genuineness and due e9ecution of the promissory note and contending that he has fully paid his loan with interest at 7+ per annum.

&. Kas the suons vali#l serve# on Carlos (2.*H! ALTERNATI3E ANSWER4

%he summons was not validly served on Carlos because it was served on his secretary and the re?uirements for substituted service have not been followed, such as a showing that eorts have been e9erted to serve the same on Carlos and such attempt has failed despite due diligence (Manotoc v. C), ".. %o. &097', )ugust &6, 2006; )ngPing v. C), ".. %o. &269'7, -ul &*, &999!. ALTERNATI3E ANSWER4 Version 1997-2006 !dated "#

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!ervice of !ummons on Carlos was validly served upon him if the 0eturn will show that it was done through !ubstituted !ervice because the defendant can not be served personally within a reasonable time despite diligent eorts made to serve the summons personally. inda, the secretary of defendant Carlos, must li2ewise be shown to be a competent person in charge of defendantJs oice where summons was served (Sec. 7, Rule 14).

2.

sum of money, which was ;led in MueGon City, is a personal action. &t must be ;led in the residence of either the plainti, which is in /angasinan, or of the defendant, which is in !an $ernando, a nion . (Sec. 2 of Rule 4) %he fact that it was not raised in a motion to dismiss does not matter because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was removed from the HHE 0ules of Civil /rocedure. %he new 0ules provide that if no motion to dismiss has been ;led, any of the grounds for dismissal may be pleaded as an airmative defense in the answer. (Sec.  of Rule 1.)

+f ou were the Au#ge, will ou grant 5inas otion to #eclare Carlos in #efault (2.*H!

ALTERNATI3E ANSWER4

&f & were the judge, & will not grant %inaJs motion to declare Carlos in default because summons was not properly served and anyway, a veri;ed answer to the complaint had already been ;led. @oreover, it is better to decide a case on the merits rather than on technicality. ALTERNATI3E ANSWER4

Nes. &f it was shown that summons was validly served, and that the motion to declare Carlos in default was duly furnished on Carlos, and after conducting a hearing on the same motion. 5enue" mroer 5enue" Comulsory Counterclaim (199!)

A, a resident of ingayen, /angasinan sued R, a resident of !an $ernando a nion in the 0%C 60%C8 of MueGon City for the collection of a debt of / million. R did not ;le a motion to dismiss for improper venue but ;led his answer raising therein improper venue as an airmative defense. :e also ;led a counterclaim for /F,FFF against A for attorneyJs fees and e9penses for litigation. R moved for a preliminary hearing on said airmative defense. $or his part, A ;led a motion to dismiss the counterclaim for lac2 of jurisdiction. . 0ule on the airmative defense of improper venue. )*+ 7. 0ule on the motion to dismiss the counterclaim on the ground of lac2 of jurisdiction over the

subject matter. )7+ SUGGESTED ANSWER4

.

%here is improper venue. %he case for a

(Sec, 2 of Rule 4).


Page 38 of 66

7. %he motion to dismiss on the ground of lac2 of jurisdiction over the subject matter should be denied. %he counterclaim for attorneyJs fees and e9penses of litigation is a compulsory counterclaim because it necessarily arose out of and is connected with the complaint. &n an original action before the 0%C, the counterclaim may be considered compulsory regardless of the amount. (Sec. 7 of Rule )

5enue" Personal Actions (1997) R, a resident of Angeles City, borrowed /*FF,FFF.FF from A, a resident of /asay City. &n the loan agreement, the parties stipulated that Pthe parties agree to sue and be sued in the City of @anila.P

a8 &n case of non-payment of the loan, can A ;le his complaint to collect the loan from R in Angeles City5 b8 !uppose the parties did not stipulate in the loan agreement as to the venue, where can A ;le his complaint against R5 c8 !uppose the parties stipulated in their loan agreement that Pvenue for all suits arising from this contract shall be the courts in MueGon City,P

can A ;le his complaint against R in /asay City5 SUGGESTED ANSWER4

6a8 Nes, because the stipulation in the

loan agreement that Pthe parties agree to sue and be sued in the City of @anilaP does not ma2e @anila the Pe9clusive venue thereof.P (Sec, 4 of Rule 4, %s %men"e" b$ Circul%r 'o. 13<

9= Sec. 4 of new Rule 4)

:ence, A can ;le his complaint in

Angeles City where he resides, 6b8 &f the parties did not stipulate on the venue, A can ;le his complaint either in Angeles City where he resides or in /asay City where R resides, 6&d8. 6c8 Nes, because the wording of the stipulation does not ma2e venue.

MueGon

City

the

e9clusive

(Phil3anEing v. 5ensuan. 20 SC) '&; :niasters Congloeration, +nc. v. C). C&&96*7, e3. 7, &997! ALTERNATI3E ANSWER4

6c8 'o. &f the parties stipulated that the venue Pshall be in the courts in MueGon CityP, A cannot ;le his complaint in /asay City because the use of the word PshallP ma2es MueGon City the e9clusive (
CRIMINAL PROCEDURE Ac
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&f the judgment of ac?uittal in the criminal case ;nds that the act or omission from which the civil liability may arise does not e9ist, the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2, l%st 8%r%r%80]. ALTERNATI3E ANSWER4

&f the judgment of ac?uittal is based on reasonable doubt, the court may receive it in evidence because in such case, the civil action for damages which may be instituted re?uires only a preponderance of the evidence. (-rt. 29, Ciil Co"e).

Actions" BP''" Civil Action deemed included ('1)

!aturnino ;led a criminal action against Ale9 for the latterLs bouncing chec2. #n the date of the hearing after the arraignment, !aturnino manifested to the court that he is reserving his right to ;le a separate civil action. %he court allowed !aturnino to ;le a civil action separately and proceeded to hear the criminal case. Ale9 ;led a motion for reconsideration contending that the civil action is deemed included in the criminal case. %he court reconsidered its order and ruled that !aturnino could not ;le a separate action. &s the courtLs order granting the motion for reconsideration correct5 3hy5 6<+8 SUGGESTED ANSWER4

Nes, the courtLs order granting the motion for reconsideration is correct. %he 0ules provide that the criminal action for violation of B./. Blg. 77 shall be deemed to include the corresponding civil action, and that no reservation to ;le such civil action separately shall be allowed. [Sec. 1(b), Rule 111, Reise" Rules of Crimin%l !roce"ure]

Actions" BP''" 8emurrer to vidence (') &n an action for violation of Batas /ambansa Big. 77, the court granted the accusedLs demurrer to evidence which he ;led without leave of court. Although he was ac?uitted of the crime charged, he, however, was re?uired by the court to pay the private complainant the face value of the chec2. %he accused ;led a @otion of 0econsideration regarding the order to pay the face value of the chec2 on the following groundsO

a8 the demurrer to evidence applied

only too the criminal aspect of the caseI and b8 at the very least, he was entitled to adduce controverting evidence on the civil liability. 0esolve the @otion for 0econsideration. 6K+8 SUGGESTED ANSWER4

6a8 %he @otion for 0econsideration should be denied. %he ground that the demurrer to evidence applied only to the criminal aspect of the case was not correct because the criminal action for violation of Batas /ambansa Blg. 77 included the corresponding civil action. (Sec. 1(b) of Rule 111). 6b8 to

%he

accused

was

not

entitled

adduce controverting evidence on the

civil liability, because


Page 39 of 66

he ;led his demurrer to evidence without leave of court. (Sec. 23 of Rule 119).

Actions" Commencement of an Action" 8ouble Jeoardy ('?) !/# C'C ;led with the @%C in MueGon City 6@e%C-MC8 a sworn written statement duly subscribed by him, charging 010 6an actual resident of Cebu City8 with the oense of slight physical injuries allegedly in=icted on !/! 6an actual resident of MueGon City8. %he (udge of the branch to which the case was raed thereupon issued an order declaring that the case shall be governed by the 0ule on !ummary /rocedure in criminal cases. !oon thereafter, the (udge ordered the dismissal of the case for the reason that it was not commenced by information, as re?uired by said 0ule.

!ometime later, based on the same facts giving rise to the slight physical injuries case, the City /rosecutor ;led with the same @e%C-MC an information for attempted homicide against the same 010. &n due time, before arraignment, 010 moved to ?uash the information on the ground of double jeopardy and after due hearing, the (udge granted his motion. 3as the dismissal of the complaint for slight physical injuries proper5 3as the grant of the motion to ?uash the attempted homicide information correct5 0eason 6<+8

SUGGESTED ANSWER4

Nes, the dismissal of the complaint for slight physical injuries is proper because in @etropolitan @anila and in chartered cities, the case has to be commenced only by information. (Sec. 11, Reise" !roce"ure).

Rule

on

Summ%r$

'o, the grant of the motion to ?uash the attempted homicide information on the ground of double jeopardy was not correct, because there was no valid prosecution for slight physical injuries. Actions" 8iscretionary Po2er of &iscal (1999)

A ;led with the #ice of the $iscal a Complaint for estafa against B. After the preliminary investigation, the $iscal dismissed the Complaint for lac2 of merit. @ay the $iscal be compelled by mandamus to ;le the case in court5 "9plain. 67+8 SUGGESTED ANSWER4

'o. %he public prosecutor may not be compelled by mandamus to ;le the case in court because the determination of probable cause is within the discretion of the prosecutor. %he remedy is an appeal to the !ecretary of (ustice. (Sec. 4 Rule 112.) Actions" n/unction (1999)

3ill injunction lie to restrain the commencement of a criminal action5 "9plain. 67+8 SUGGESTED ANSWER4

As a general rule, injunction will not lie to restrain a criminal prosecution e9ceptO Version 1997-2006 !dated "#

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a8 %o aord ade?uate protection to the constitutional rights of the accusedI b8 3hen necessary for the orderly administration of justice or to avoid oppression or multiplicity of actionsI c8 3hen double jeopardy is clearly apparentI d8 3here the charges are manifestly false and motivated by the lust for vengeanceI e8 3here there is clearly no prima facie case against the accused and a motion to ?uash on that ground has been denied. (See cases cite# in o3erts, -r., vs. Court of )$$eals, 2*' SC) 07 F&996D an# BrocEa v. 4nrile, &92 SC) &/ F&990D.!

Arrest" arrantless Arrest" Preliminary nvestigation ('?) AR swindled 0N in the amount of /F,FFF sometime in mid-7FF*. #n the strength of the sworn statement given by 0N personally to !/# (uan 0amos sometime in mid-7FF>, and without securing a warrant, the police oicer arrested AR. $orthwith the police oicer ;led with the City /rosecutor of @anila a complaint for estafa supported by 0NPs sworn statement and other documentary evidence. After due in?uest, the prosecutor ;led the re?uisite information with the @@ 0%C. 'o preliminary investigation was conducted either before or after the ;ling of the information and the accused at no time as2ed for such an investigation. :owever, before arraignment, the accused moved to ?uash the information on the ground that the prosecutor suered from a want of authority to ;le the information because of his failure to conduct a preliminary investigation before ;ling the information, as re?uired by the 0ules of Court. &s the warrantless arrest of AR valid5 &s he entitled to a preliminary investigation before the ;ling of the information5 "9plain. 6<+8 SUGGESTED ANSWER4

'o. %he warrantless arrest is not valid because the alleged oense has not just been committed. %he crime was allegedly committed one year before the arrest. (Sec.  (b) of Rule 113). Nes, he preliminary

is entitled to investigation because

a he

was not lawfully arrested without a warrant (See Sec. 7 of Rule 112). :e can move for a reinvestigation. ALTERNATI3E ANSWER4

:e is not entitled to a preliminary investigation because the penalty for estafa is the sum of /F,FFF does not e9ceed > years and 7 months. nder !ec. , second par., 0ule 7, a preliminary investigation is not re?uired. ('ote= 0e 8en%lt$ is not st%te" in t0e >uestion.)

Arrest" arrantless Arrests - Searc,es (1997) A was 2illed by B during a ?uarrel over a hostess in a nightclub. %wo days after the incident, and upon complaint of the widow of A, the police arrested B

113) .

(Sec. , Rule

(o s. Court of -88e%ls. 2 SCR- 13*).


Page 40 of 66

without a warrant of arrest and searched his house without a search warrant. a8 Can the gun used by B in shooting A, which was seiGed during the search of the house of B, be admitted in evidence5 b8 &s the arrest of B legal5 c8 nder the circumstances, can B be convicted of homicide5 SUGGESTED ANSWER4

6a8 'o. %he gun seiGed during the search of the house of B without a search warrant is not admissible in evidence. (Secs. 2 %n" 3[2], -rt. /// of Constitution).

@oreover, the search was not an incident to a lawful arrest of a person under !ec. 7 of 0ule 7K. 6b8 'o. A warrantless arrest re?uires that the crime has in fact just been committed and the police arresting has personal 2nowledge of facts that the person to be arrested has committed it. :ere, the crime has not just been committed since a period of two days had already lapsed, and the police arresting has no such personal 2nowledge because he was not present when the incident

happened. 6c8 Nes. %he gun is not indispensable in the conviction of A because the court may rely on testimonial or other evidence. Arrest" arrantless Arrests - SeiDures (') &n a buy-bust operation, the police operatives

arrested the accused and seiGed from him a sachet of shabu and an unlicensed ;rearm. %he accused was charged in two &nformations, one for violation of the TDangerous Drug ActU, as amended, and another for illegal possession of ;rearms.

%he accused ;led an action for recovery of the ;rearm in another court against the police oicers with an application for the issuance of a writ of replevin. :e alleged in his Complaint that he was a military informer who had been issued a written authority to carry said ;rearm. %he police oicers moved to dismiss the complaint on the ground that the subject ;rearm was in custodia legis. %he court denied the motion and instead issued the writ of replevin. 6a8 3as the seiGure of the ;rearm valid5 6b83as the denial of the motion to dismiss proper5 K+ SUGGESTED ANSWER4

6a8 Nes, the seiGure of the ;rearm was valid because it was seiGed in the course of a valid arrest in a buy-bust operation. (Sec. 12 %n" 13 of Rule 12) A search warrant was not necessary. (Peo$le v. Salaar, 266 SC) 607

F&997D!.

6b8 %he denial of the motion to dismiss was not proper. %he court had no authority to issue the writ of replevin whether the ;rearm was in custodia legis Version 1997-2006 !dated "#

Dondee


or not. %he motion to recover the ;rearm should be ;led in the court where the criminal action is pending. Arrest" arrantless Arrests" *b/ection (')

applied for bail but was denied. $inally, the Court of Appeals rendered a decision ac?uitting A on the ground that the evidence pointed to the '/A as the 2illers of the victim.

. 3as the Court of AppealJs denial of AJs application for bail proper5 )7+ 7. Can B and C be bene;ted by the decision of the Court of Appeals5 )*+

$1 was arrested without a warrant by policemen while he was wal2ing in a busy street. After preliminary SUGGESTED ANSWER4 investigation, he was charged with (Sec. 11 [%]. Rule 122, Rules of rape and the corresponding Crimin%l !roce"ure.) information was ;led in the 0%C. #n , Nes, the Court of Appeals properly denied arraignment, he pleaded not guilty. %rial AJs application for bail. %he court had the on the merits ensued. %he court discretion to do so. Although A was convicted of rendered judgment convicting him. homicide only, since he was charged with a #n appeal, $1 claims that the capital oense, on appeal judgment is void because he was illegally arrested. &f you were the !olicitor 1eneral, counsel for the /eople of the /hilippines, how would you refute said claim5 6<+8 SUGGESTED ANSWER4

Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he pleaded not guilty at the arraignment without raising the ?uestion. % is too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of conviction rendered against the accused. (Peo$le v. Ca3iles, 2/' SC) &99,

F&999D!

Bail ('')

D was charged with murder, a capital oense. After arraignment, he applied for bail. %he trial court ordered the prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine whether the evidence of DLs guilt was strong for purposes of bail. &s the ruling correct5 3hy5 6*+8 SUGGESTED ANSWER4

'o, the prosecution is only re?uired to present as much evidence as is necessary to determine whether the evidence of DLs guilt is strong for purposes of bail.(Rule 114, sec. *). Bail" Aeal (199!) &n an information charging them of @urder, policemen A, B and C were convicted of :omicide. A appealed from the decision but B and C did not. B started serving his sentence but C escaped and is at large. &n the Court of Appeals, A


Page 41 of

66 he could be convicted of the capital oense. (3osa vs. Court of )$$eals, 266 SC) 2/&.! ALTERNATI3E ANSWER4

nder Circular 'o. 7-H7, A is entitled to bail because he was convicted of homicide and hence the evidence of guilt of murder is not strong. SUGGESTED ANSWER4

7. B, who did not appeal, can be bene;ted by the decision of the Court of Appeals which is favorable and applicable to him.

%he bene;t will also apply to C even if his appeal is dismissed because of his escape. Bail" Alication" 5enue ('')

&f an information was ;led in the 0%C-@anila charging D with homicide and he was arrested in MueGon City, in what court or courts may he apply for bail5 "9plain. 6*+8 SUGGESTED ANSWER4

D may apply for bail in the 0%C@anila where the information was ;led or in the 0%C-MueGon City where he was arrested, or if no judge, thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. (Rule 114, sec. 17).

Bail" &orms of Bail (1999)

&n what forms may bail be given5 67+8 SUGGESTED ANSWER4

Bail may be given by a corporate surety, or through a property bond, cash deposit or recogniGance. Bail" :atter of ig,t (1999) 3hen the accused is entitled as a matter of right to bail, may the Court refuse to grant him bail on the ground that there e9ists a high degree of probability that he will abscond or escape5 "9plain. 67+8 SUGGESTED ANSWER4

&f bail is a matter of right, it cannot be denied on the ground that there e9ists a high degree of probability that the accused will abscond or escape. 3hat the court can do is to increase the amount of the

bail. #ne of the guidelines that the judge may use in ;9ing a reasonable amount of bail is the probability of the accused appearing in trial. Bail" :atter of ig,t vs. :atter of 8iscretion (1999)

3hen is bail a matter of right and when is it a matter of discretion5 67+8 SUGGESTED ANSWER4

Khen Bail is a atter of right All persons in custody shall 6a8 before or after conviction by the metropolitan and municipal trial courts, and 6b8 before conviction by the 0%C of an oense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right, with suicient sureties, or be released on recogniGance as prescribed by law or 0ule >. (Sec. 4, Rule 114, Rules of Court, %s %men"e" b$ Circul%r 'o. 12<94.) Version 1997-2006 !dated "# Dondee

bail is needed to secure his appearance. %he rules provide that when the court is Khen 3ail is a atter of #iscretion pon conviction by the 0%C of an satis;ed, upon proof or oath, that a material oense not punishable by death, witness will not testify when re?uired, it reclusion perpetua or life may, upon motion of either party, order imprisonment, on application of the the witness to post bail in such sum as accused. &f the penalty of may be deemed proper. pon refusal to post imprisonment e9ceeds si9 years but bail, the court shall commit him to not more than 7F years, bail shall be prison until he complies or is legally denied upon a showing by the discharged after his testimony is ta2en. (Sec. prosecution, with notice to the , Rule 119) accused, of the following or Comlaint vs. nformation (1999) other similar circumstancesO Distinguish a Complaint from &nformation. . %hat the accused is a recidivist, ?uasi-re-cidivist or habitual 67+8 delin?uent, or has committed the crime aggravated by the circumstance of reiterationI 7. %hat the accused is found to have previously escaped from legal con;nement, evaded sentence, or has violated the conditions of his bail without valid justi;cationI *. %hat the accused committed the oense while on probation, parole, or under conditional pardonI >. %hat the circumstances of the accused or his case indicate the probability of =ight if released on bailI or <. %hat there is undue ris2 that during the pendency of the appeal, the accused may commit another crime. 6!ec. , &d.8 Remedial Law Bar Examination Q & A (1997-2006)

Bail" :atter of ig,t vs. :atter of 8iscretion ('+)

3hen is bail a matter of right and when is it a matter of discretion5 6<+8 SUGGESTED ANSWER4

Bail is a matter of right 6a8 before or after conviction by the inferior courtsI 6b8 before conviction by the 0%C of an oense not punishable by death, reclusion perpetua or life imprisonment., when the evidence of guilt is not strong (Sec. 4, Rule 114, 2 Rules of Crimin%l !roce"ure).

Bail is discretionaryO pon conviction by the 0%C of an oense not punishable by death, reclusion perpetua or life imprisonment (Sec. , Rule 114, 2 Rules of Crimin%l !roce"ure).

Bail" itness Posting Bail (1999)

@ay the Court re?uire a witness to post bail5 "9plain your answer. 67+8 SUGGESTED ANSWER4

Nes. %he court may re?uire a witness to post bail if he is a material witness and


Page 42 of

SUGGESTED ANSWER4

&n criminal procedure, a complaint is a sworn written statement charging a person with an oense, subscribed by the oended party, any peace oicer or

other peace oicer charged with the enforcement of the law violated.

(Sec. 3, Rule 11, 19*

SUGGESTED ANSWER4

'o. %he court should not grant defendantJs demurrer to evidence because the case is for breach of contract of carriage. /roof that the defendant was negligent and that such negligence was the pro9imate cause of the collision is not re?uired. ()rticles &&70 an# 220&,

Civil Co#e; (Men#oa v. Phil. )irlines, +nc., 90 Phil. /6 F&9*2D; Batangas Rules of 5rans$ortation Co. v. Cagui3al, 22 Crimin%l SC)&7& : 96/D; )3eto v. P)8, &&* accusation SC) '/9 F&9/2D; )3oiti v. Court of )$$eals, &29 SC) 9* F&9/'D!.

informati is while an on an writing charging a person with an oense subscribed by the prosecutor and ;led with the court.

!roce"ure);

0eason brie=y. 6<+8

(Sec. 4, /".)

8emurrer to vidence" Contract of Carriage ('?) AR, a @a2ati-bound paying passenger of /B, a public utility bus, died instantly on board the bus on account of the fatal head wounds he sustained as a result of the strong impact of the collision between the bus and a dump truc2 that happened while the bus was still travelling on "D!A towards @a2ati. %he foregoing facts, among others, were duly established on evidence-in-chief by the plainti %N, sole heir of AR, in %NLs action against the subject common carrier for breach of contract of carriage. After %N had rested his case, the common carrier ;led a demurrer to evidence, contending that plaintiLs evidence is insuicient because it did not show 68 that defendant was negligent and 678 that such negligence was the pro9imate cause of the collision. !hould the court grant or deny defendantJs demurrer to evidence5

8emurrer to vidence" 2o 0eave of Court (199!)

$acing a charge of @urder, R ;led a petition for bail. %he petition was opposed by the prosecution but after hearing the court granted bail to R. #n the ;rst scheduled hearing on the merits, the prosecution manifested that it was not adducing additional evidence and that it was resting its case. R ;led a demurrer to evidence without leave of court but it was denied by the court. . Did the court have the discretion to deny the demurrer to evidence under the circumstances mentioned above5 67+8 7. &f the answer to the preceding ?uestion is in the airmative, can R adduce evidence in his defense after the denial of his demurrer to evidence5 )+

*. 3ithout further proceeding and on the sole basis of the evidence of the prosecution, can the court legally convict R for @urder5 67+8 SUGGESTED ANSWER4

. Nes. %he Court had the discretion to deny the demurrer to the evidence, because although the Version 1997-2006 !dated "#

Dondee

evidence is ;led without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 23 of Rule !roce"ure)

(Sec. 1, Rule 119, Rules of Crimin%l

(Peo$le vs. ores, 269 SC) Remedial Law Bar Examination Q & A (1997-2006)

evidence presented by the prosecution at the hearing for bail was not strong, without any evidence for the defense, it could be suicient for conviction. 'o. Because he ;led the demurrer to the evidence without leave. 7.

!roce"ure.) :owever, the trial court should

in?uire as to why the demurrer without leave lawyer 2new that the without leave is presentation of the

accused ;led the and whether his eect of ;ling it to waive the

evidence for the accused. 62.!

*. Nes. 3ithout any evidence from the accused, the prima facie evidence of the prosecution has been converted to proof beyond reasonable doubt. ALTERNATI3E ANSWER4

&f the evidence of guilt is not strong and beyond reasonable doubt then the court cannot legally convict R for murder. 8emurrer to vidence" 2o 0eave of Court ('1)

Carlos, the accused in a theft case, ;led a demurrer to evidence without leave of court. %he court denied the demurrer to evidence and Carlos moved to present his evidence. %he court denied CarlosL motion to present evidence and instead judgment on the basis of the evidence for the prosecution. 3as the court correct in preventing Carlos from presenting his evidence and rendering judgment on the basis of the evidence for the prosecution5 3hy5 6<+8 SUGGESTED ANSWER4

Nes, because the demurrer to the evidence was ;led without leave of court. %he 0ules provide that when the demurrer to

119, Reise" Rules of Crimin%l

8emurrer to vidence" 2o 0eave of Court ('?) %he information for illegal possession of ;rearm ;led against the accused speci;cally alleged that he had no license or permit to possess the caliber .>< pistol mentioned therein. &n its evidence-in-chief, the prosecution established the fact that the subject ;rearm was lawfully seiGed by the police from the possession of the accused, that is, while the pistol was tuc2ed at his waist in plain view, without the accused being able to present any license or permit to possess the ;rearm. %he prosecution on such evidence rested its case and within a period of ;ve days therefrom, the accused ;led a demurrer to evidence, in sum contending that the prosecution evidence has not established the guilt of the accused beyond reasonable doubt and so prayed that he be ac?uitted of the oense charged.


Page 43 of 66

%he trial court denied the demurrer to evidence and deemed the accused as having waived his right to present evidence and submitted the case for judgment on the basis of the prosecution evidence. &n due time, the court rendered judgment ;nding the accused guilty of the oense charged beyond reasonable doubt and accordingly imposing on him the penalty prescribed therefor. &s the judgment of the trial court valid and proper5 0eason. 6<+8 SUGGESTED ANSWER4

Nes. %he judgment of the trial court is valid. %he accused did not as2 for leave to ;le the demurrer to evidence. :e is deemed to have waived his right to present evidence. (Sec. 2 of ule &&9; Peo$le v. lores, 269 SC) 62 F&997D; Bernar#o v. Court of )$$eals, 27/ SC) 7/2 F&997D. :owever, the judgment is not

proper or is erroneous because there was no showing from the proper oice li2e the $irearms "9plosive nit of the /hilippine 'ational /olice that the accused has a permit to own or possess the ;rearm, which is fatal to the conviction of the accused. (Mallari v. Court of

)$$eals NPeo$le,26* SC) '*6F&996D!.

8ismissal" &ailure to Prosecute (')

3hen a criminal case is dismissed on nolle 8rose>ui , can it later be re;lled5 6>+8 SUGGESTED ANSWER4

As a general rule, when a criminal

case is dismissed on nolle 8rose>ui before the accused is placed on trial and before he is called on to plead, this is not e?uivalent to an ac?uittal and does not bar a subse?uent prosecution for the same oense. ("alve v. Court of )$$eals, 27 SC) 6/* F&99'D!.

8ismissal" Provisional 8ismissal (') Before the arraignment for the crime of murder, the private complainant e9ecuted an Aidavit of Desistance stating that she was not sure if the accused was the man who 2illed her husband. %he public prosecutor ;led a @otion to Muash the &nformation on the ground that with private complainantLs desistance, he did not have evidence suicient to convict the accused. #n F7 (anuary 7FF, the court without further proceedings granted the motion and provisionally dismissed the case. %he accused gave his e9press consent to the provisional dismissal of the case. %he oended party was noti;ed of the dismissal but she refused to give her consent.

!ubse?uently, the private complainant urged the public prosecutor to re;le the murder charge because the accused failed to pay the consideration which he had promised for the e9ecution of the Aidavit of Desistance. %he public prosecutor obliged and re;led the murder charge against the accused on F $ebruary 7FF*, the accused ;led a @otion to Muash the &nformation on the ground that the provisional dismissal of the case had already become permanent. 6K+8 Version 1997-2006 !dated "#

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a8 3as the provisional dismissal of the case proper5 b8 0esolve the @otion to Muash. SUGGESTED ANSWER4

6a8 %he provisional dismissal of the case was proper because the accused gave his e9press consent thereto and the oended party was noti;ed. &t was not necessary for the oended party to give her consent thereto. (Sec. * of Rule 117).

6b8

%he motion to ?uash the information should be denied because, while the provisional dismissal had already become permanent, the prescriptive period for ;ling the murder charge had not prescribed. %here was no double jeopardy because the ;rst case was dismissed before the accused had pleaded to the charge. (Sec. 7 of Rule 117). 8ouble Jeoardy ('') D was charged with slight physical injuries in the @%C. :e pleaded not guilty and went to trial. After the prosecution had presented its evidence, the trial court set the continuation of the hearing on another date. #n the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of D, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. %he court reconsidered its order and directed D to present his evidence. Before the ne9t date of trial came, however, D moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. %he prosecutor then ;led an information in the 0%C, charging D with direct assault based on the same facts alleged in the information for slight physical injuries but with the added allegation that D in=icted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. D moved to ?uash the second information on the ground that its ;ling had placed him in double jeopardy. :ow should DLs motion to ?uash be resolved5 6>+8 SUGGESTED ANSWER4

DLs motion granted on

to ?uash should be the ground of double

jeopardy because the ;rst oense charged is necessarily included in the second oense charged. Fraculan v. onato, &'0 SC) '2* (&9/*!D. ALTERNATI3E ANSWER4

DLs motion to ?uash should be denied because the two dismissals of the case against him were on his motion 6hence with his e9press consent8 and his right to a speedy trial was not violated. 8ouble Jeoardy" Egrading" *riginal C,arges (')

$or the multiple stab wounds sustained by the victim, 'oel was charged with frustrated homicide in the 0%C. pon arraignment, he entered a plea of guilty to said crime. 'either the court nor the prosecution

Page 44 of 66 was aware that the victim had died two days earlier on account of his stab wounds. Because of his guilty

prosecution was aware that the victim had died two days earlier on account of his stab wounds.

plea, 'oel was convicted of frustrated homicide and

;tradition ('?) 0/ and !tate RR have a subsisting "9tradition %reaty. /ursuant thereto 0/Js !ecretary of (ustice 6!#(8 ;led a /etition for "9tradition before the @@ 0%C alleging that (uan 4wan is the subject of an arrest warrant duly issued by the proper criminal court of !tate RR in connection with a criminal case for ta9 evasion and fraud before his return to 0/ as a bali2bayan. /etitioner prays that (uan be e9tradited and delivered to the proper authorities of !tate RR for trial, and that to prevent (uanJs =ight in the interim, a warrant for his immediate arrest be issued. Before the 0%C could act on the petition for e9tradition, (uan ;led before it an urgent motion, in sum praying 68 that !o(Js application for an arrest warrant be set for hearing and 678 that (uan be allowed to post bail in the event the court would issue an arrest warrant. !hould the court grant or deny (uanJs prayers5 0eason. 6<+8


meted the corresponding penalty. 3hen the prosecution learned of the victimJs death, it ;led within ;fteen 6<8 days therefrom a motion to amend the information to upgrade the charge from frustrated homicide to consummated homicide. 'oel opposed the motion claiming that the admission of the amended information would place him in double jeopardy. 0esolve the motion with reasons. 6>+8 SUGGESTED ANSWER4

%he amended information to consummated homicide from frustrated homicide does not place the accused in double jeopardy. As provided in the second paragraph of Sec. 7, Rule 117,2 Rules of Crimin%l !roce"ure, the conviction of the accused shall not be a bar to another prosecution for an oense which necessarily includes the oense charged in the former complaint or information whenO 6a8 the graver oense developed due to supervening facts arising from the same act or omission constituting the former chargeI or 6b8 the facts constituting the graver charge became 2nown or were discovered only after a plea was entered in the former complaint or information. :ere, when the plea to frustrated homicide was made, neither the court nor the

SUGGESTED ANSWER4

nder the "9tradition %reaty and aw, the application of the !ecretary of (ustice for a warrant of arrest need not be set for hearing, and (uan cannot be allowed to post bail if the court would issue a warrant of arrest. %he provisions in the 0ules of Court on arrest and bail are not basically applicable. ("overnent of the :nite# States of )erica v. Puruganan, /9 SC) 62 F2002D! Version 1997-2006 !dated "#

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nformation ('1)

information to e9clude " therefrom. Can the court grant the motion to amend5 3hy5 67+8

%he prosecution ;led an information against (ose for slight physical injuries B. #n the facts above stated, suppose the prosecution, instead of ;ling a motion to alleging the acts constituting the amend, moved to withdraw the oense but without anymore alleging information altogether and its motion was that it was committed after (oseLs granted. Can the prosecution re-;le the unlawful entry in the information although this time for complainantLs abode. murder5 "9plain 6*+8 3as the information correctly SUGGESTED ANSWER4 prepared by the prosecution5 3hy5 A. Nes, provided notice is given to the 6<+8 oended party and the court states its SUGGESTED ANSWER4 reasons for granting the same. (Rule 11, sec. 'o. %he aggravating circumstance of unlawful entry in the complainantLs 14). abode has to be speci;ed in the informationI otherwise, it cannot be considered as aggravating. (Sec. * of Rule 11, !roce"ure)

Reise"

Rules

of

Crimin%l

ALTERNATI3E ANSWER4

%he information prepared by the prosecutor is not correct because the accused should have been charged with ?uali;ed trespass to dwelling. nformation" Amendment ('1)

Amando was charged with frustrated homicide. Before he entered his plea and upon the advice of his counsel, he manifested his willingness to admit having committed the oense of serious physical injuries. %he prosecution then ;led an amended information for serious physical injuries against Amando. 3hat steps or action should the prosecution ta2e so that the amended information against Amando which downgrades the nature of the oense could be validly made5 3hy5 6<+8 SUGGESTED ANSWER4

&n order that the amended information which downgrades the nature of the oense could be validly made, the prosecution should ;le a motion to as2 for leave of court with notice to the oended party. (Sec.14 of Rule 11, Reise" Rules of Crimin%l !roce"ure). %he new rule is for the

protection of the interest of the oended party and to prevent possible abuse by the prosecution. nformation" Amendment" 8ouble Jeoardy" Bail ('')

A. D and " were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the

Page 45 of 66 prosecutio can re-;le B. Nes, the n information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. F"alve v. Court


of )$$eals, 27

SC) 6/* (&99'!D.

nformation" Amendment" Suervening vents (1997)

A was accused of homicide for the 2illing of B. During the trial, the public prosecutor received a copy of the marriage certi;cate of A and B. 6a8 Can the public prosecutor move for the amendment of the information to charge A with the crime of parricide5 6b8 !uppose instead the amendment

of

moving

for

informatio prosecu n, the public of the eviden presente th marria certi;cat in ce d e ge without objection on the part of the defense, could Abe convicted of parricide5 SUGGESTED ANSWER4

6a8 'o. %he &nformation cannot be amended to change the oense charged from homicide to parricide. $irstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. (Sec. 7[%] of plea, Rule 117). !econdly, after amendments may be done only as to matters of form. %he amendment is

substantial because it will change the nature of the oense. (Sec. &' of ule &&0; ional#o 76!.

us. acucu. &0/ SC)

6b8 'o. A can be convicted only of homicide not of parricide which is a graver oense. %he accused has the constitutional rights of due process and to be informed of the nature and the cause of the accusation against him. (Secs. 1, 14 (1) %n" (2? -rt. ///. 19*7 Constitution),

nformation" Bail (') After the re?uisite proceedings, the /rovincial /rosecutor ;led an &nformation for homicide against R. %he latter, however, timely ;led a /etition for 0eview of the 0esolution of the /rovincial /rosecutor with the !ecretary of (ustice who, in due time, issued a 0esolution reversing the resolution of the /rovincial /rosecutor and directing him to withdraw the &nformation.

Before the /rovincial /rosecutor could comply with the directive of the !ecretary of (ustice, the court issued a warrant of arrest against R. %he /ublic /rosecutor ;led a @otion Muash the 3arrant of Arrest and 3ithdraw the &nformation, attaching to the 0esolution of the !ecretary (ustice. %he court denied the motion. 6K+8

to to it of

a8 3as there a legal basis for the court to deny the motion5 b8 &f you were the accused, what

counsel

for

the

remedies, if any, would you pursue5 SUGGESTED ANSWER4 Version 1997-2006 !dated "#

Dondee

by a /rovi /rovinc ncial ial /rose /rosecu cutor tor.. After After arraignment arraignment but before pre-trial, BC found out that the /rovincial /rovincial /rosecutor /rosecutor had no authority to sign and ;le the information information as it it was the City /rosecutor who has such authority. During the pre-trial, BC moves that the case against him be dismisse dismissed d on the ground ground that that the &nformation is defective because the oicer signing signing it lac2ed lac2ed the authori authority ty to do so. %he /rovincial /rovincial /rosecutor opposes the motion on the ground of estoppel as BC did not move to ?uash ?uash the &nfor &nformat matio ion n before before arraignment. &f you are counsel for BC, what is your argument to refute the opposition of the /rovincial /rosecutor5 6<+8 SUGGESTED ANSWER4

& woul would d argue argue that that since since the /rovin /rovincia ciall /rosec secutor tor had no autho thority to ;le ;le the the info inform rmat atio ion, n, the the cour courtt did did not not ac?u ac?uir ire e jurisdiction jurisdiction over the person of the accused and over the subject matter of the oense

charged. F&999D!. :ence, this ground is not waived if not

raised in a motion to ?uash and could be raised at the pre-

trial. nformation" :otion to uas, (')

(Cu#ia v. Court of )$$eals, 2/' SC) &7 (Sec. *, Rule 117, Rules of Court).

a. Nes, Nes, there is a legal basis for the court to deny the motion to ?uash the warrant of arrest and to withdraw the information. %he court is not bound by the 0esolution of the !ecretary of (ustice. Remedial Law Bar Examination Q & A (1997-2006)

(Cres$o v.

Mogul, &*& &*& SC) '62 F&9/7D!.

0odolfo is charged with possession of unlicense unlicensed d ;rearms ;rearms in an &nformatio &nformation n ;led in the 0%C. 0%C. &t was alleged alleged therein therein that that 0odo odolfo lfo was in posse ssessio ssion n of two two unlicensed ;rearmsO a .>< caliber and-a . *7 caliber. nder 0epublic Act 'o. 7H>, possession of an unlicensed .>< caliber gun is punish punishable able by prisio prision n mayor mayor in its minimum period and a ;ne of (Sec. 3,

/*F.FF /*F.FFF.F F.FF, F, while while posses possessio sion n of an unlicensed .*7 caliber gun is punishable by prision correctional in its ma9imum period and a ;ne of not less than /<,FFF.FF. As counsel of the accused, you intend to ;le a motion to ?uash the &nformation. 3hat ground ground or ground grounds s should should you invo2e invo2e5 5 "9plain. 6>+8

b. &f & were the counsel for the accu accuse sed, d, & woul would d surr surren ende derr the the SUGGESTED ANSWER4 %he ground for the motion to ?uash is that accused and apply for bail because the more than one oense is charged in the oense is merely homicide, a non-capital information. (Sec. 3[f], Rule 117, 2 Rules of oense. At At the pre-trial, & would ma2e a Crimin%l !roce"ure) i2ewise, the 0%C has no stipulation of facts with the prosecution jurisdiction over the second oense of which would show that no oense was committed. nformation" :otion to uas, (') BC is charged with illegal possession of ;rearms under an &nformation &nformation signed


Page 46 of 66 unlicensed .*7

possession of an caliber gun, punishable by prision correctional in its ma9imum

period and a ;ne of not less than /<.FFF.FF. /<.FFF.FF. &t is the @%C that has e9clusive and original jurisdiction over all oenses punishable punishable by imprison imprisonment ment not e9ceeding si9 years. (Sec. 2, R.-. 'o. 791, 791, %men"in 5.!. 5l. 129)

nformation" :otion to uas," 3rounds (199!)

.

1ive two 678 grounds to ?uash an &nformation. )7+

7. &f the &nformation is not accompan accompanied ied by a certi;c certi;catio ation n that a prelimin preliminary ary investiga investigation tion has

been conducted. &s the &nformation void5 )*+ SUGGESTED ANSWER4

. %wo grounds to ?uash an &nformation areO a8 %hat %hat the the facts facts cha charg rged ed do not not constitute an oenseI and b8 %hat %hat the the court court trying trying the case has no jurisdicti jurisdiction on over over the oense oense charge charged d or the person of the accused. c8 %hat %hat the the oice oicerr who ;le ;led d the the info inform rmat atio ion n had had no authority to do soI d8 %hat it does not conform substantially to the prescribed formI e8 %hat more than one oense is charged e9cept in those cases in which e9isti e9isting ng laws laws prescr prescribe ibe a

single punishment for various oensesI f8 %hat the criminal action or liability has been been e9tinguishedI g8 %hat %hat it cont contai ains ns aver averme ment nts s which, ich, if true, rue, would uld constitute a legal e9cuse or justi;cationI and h8 %hat %hat the the accus accused ed has has been been previously previously convicted convicted or in jeopardy of being convicted, or ac?uitted of the oense charged. Rule 117. Rules Rules of Crimin%l !roce"ure.) !roce"ure.) SUGGESTED ANSWER4

7. 'o. %he certi;cati ation which is provided in !ec. >, 0ule 7. 0ules of Crim Crimin inal al /roc /roced edur ure, e, is not not an indispensable part of the information. (Peo$le vs. 8a$ura, 2** SC) /*.!

Judgment" Promulgation of Judgment (1997)

R, the accused in a homicide case before the 0%C. Dagupan Cay, Cay, was person personall ally y noti;e noti;ed d of the promulgation of judgment in his case set for F Decemb December er HHK HHK.. #n said said date. date. R was was not pres present ent as he had had to attend attend to the trial of anothe anotherr crimin criminal al case against him in %arlac, %arlac. %he trial court denied the motion of the counsel of R to postpone the promulgation. 6a8 :ow shall shall the court court promulga promulgate te the judgment in the absence of the accused5 6b8 Can the the trial trial cou court rt also also order order the arrest of R5 SUGGESTED ANSWER4

6a8 &n the absence of the accused, the promulgation shall be made by recording the (udgment in the Version 1997-2006 !dated "#

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Remedial Law Bar Examination Q & A

(1997-2006)


Page 47 of 66

criminal doc2et and a copy thereof served upon the accused or counsel. (Sec. . t0ir" 8%r., Rule 12)

6b8 'o, the trial court cannot order the arrest of R if the judgmen judgmentt is one of ac?uittal ac?uittal and, and, in any event, his failure to appear was with justi;able cause since he had to attend to another criminal case against him. Jurisdiction" Comle; Crimes (')

&n comple9 crimes, how is the jurisdiction of a court determined5 >+ SUGGESTED ANSWER4

&n a comple9 crime, jurisdiction over the whole comple9 crime must be lodged with the trial court having jurisdiction jurisdiction to impose the the ma9i ma9imu mum m and and most most seri seriou ous s pena penalt lty y imposable on an oense forming forming part of the (Cuos v. "arcia, "arcia, &60 SC) compl comple9 e9 crim crime. e. (Cuos F&9//

D!. 02

Jurisdiction" &inality of a Judgment (')

@ariano was convicted by the 0%C for for rapi raping ng ict ictor oria ia and and mete meted d the the penalty penalty of of reclus reclusion ion perp perpetu etua. a. 3hile 3hile servin serving g sente sentence nce at the 'ation 'ational al /eniten /enitentiary tiary,, @ariano @ariano and ictoria ictoria were married. @ariano ;led a motion in said court for his release from the penitentiary on his claim that under 0epublic Act 'o. *<*, his marriage to ictoria e9tinguished the criminal action against him for rape, as well as the the pena enalty lty imp impose osed on him. im. :owever, :owever , the court denied the motion on a) Is the ling of the court correct? Explain. the ground ground that that it had lost lost jurisd jurisdict iction ion SUGGESTED ANSWER4 over ov er the th e case ca se afte af ter r its it s deci de cisi sion on had ha d 'o. %he court can never lose jurisdiction so become ;nal and e9ecutory. 6E+8 long as its decision has not yet been fully implemented and satis;ed. $inality of a judgment cannot operate to divest a court of its its juri jurisd sdic icti tion on.. %he %he cour courtt reta retain ins s an interest interest in seeing seeing the proper e9ecu e9ecutio tion n and and imple implemen mentat tation ion of its judgments, and to that e9tent, may issue %o. &20* , -anuar such&20*, orders necessar necessary y and appropria appropriate te for &9, &999! (4chegara v. Secretar Secretar of thes these e purp purpos oses es.. (4chegara b) hat remedy!re remedy!remedi medies es should should -ustice, ".. ".. the couns counsel el of "ariano "ariano ta#e ta#e to secure secure his prope proper r and most most expeditio expeditious us release release from the $ational $ational %enitentiary? SUGGESTED ANSWER4Explain. %o secure secure the proper and most e9peditiou e9peditious s relea release se of @ari @ariano ano from from the 'atio 'ational nal /enitentiary, his counsel should ;leO 6a8 a petition for habeas corpus for the illegal con;nement of @ariano 60ule F78, or 6b8 a motion in the court which convicted him, him, to null nullify ify the e9ecu e9ecutio tion n of his his sentence or the order(Melo of hisv. commitment Peo$le, ".. %o. on the March ground that a the supervening ;nality 8*/0, 22, despite &9*0! of the development had occurred judgme

nt.

Parties" Prosecution of *ffenses (')

Nour Nour friend NN NN,, an orphan, K years old,

see2s your legal legal advice. advice. !he tells you that SS, her uncle, subjected her to acts of lasciviousnessI that when she told her grandparents, they they told her to just 2eep ?uiet and and not to ;le charge charges s agains againstt SS, SS, their their son. son. $eeling eeling very much aggrieved, she as2s you how her uncle SS SS can be made to answer answer for his crime. a8 3hat would would your advice advice be5 "9plain. "9plain. 6*+8 b8 !uppose !uppose the crime crime committed committed against NN by her uncle SS is rape, witnessed by your mutual friend RR. But this time, NN was prevailed upon by her grandparents not to ;le char charge ges. s. RR as2 as2s s you you if she can can initiate the complaint against SS. 3ould your answer be the same5 "9plain. 67+8. SUGGESTED ANSWER4

6a8& would advise the minor, an orphan of K years of age, to ;le the complaint herself inde indepe pend nden entl tly y of her her gran grandp dpar aren ents ts,, because she is not incompetent or incapabl incapable e to doing doing so upon grounds grounds other than her minority. minority. (Sec. , Rule 11, Rules of Crimin%l !roce"ure.)

6b8 !inc !ince e rape rape is now classi; classi;ed ed as a Crime Against /ersons /ersons under the Anti-0ape aw of HHE (R- *33), & would advise RR RR to initiate the complaint against SS. Plea of 3uilty" to a 0esser *ffense ('') D was charged with theft of an article article worth worth p<,FFF. p<,FFF.FF. FF. pon pon being being arraigned arraigned,, he pleaded pleaded not guilty guilty to the oense oense charg charged. ed. %her %hereaf eafter ter,, befor before e trial trial commenced, he as2ed the court to allow him him to chang change e his his plea plea of not not gui guilty lty to a plea plea of guilt guilt but only to estafa estafa invol involvin ving g /<,FFF.FF. /<,FFF.FF. Can the court court allow D to change his plea5 3hy5 67+8 SUGGESTED ANSWER4

'o, because a plea of guilty to a lesser oense oense may may be allowe allowed d if the the lesser lesser oense oense is neces necessar sarily ily inclu included ded in the (Rule e 11, 11, sec. sec. 2). 2). oen oense se charge charged. d. (Rul "stafa "stafa involv involving ing /<,FF /<,FFF.F F.FF F is not necessarily included in theft of an article worth /<,FFF.FF /<,FFF.FF Pre/udicial uestion (1999)

3hat is a prejudicial ?uestion5 67+8 SUGGESTED ANSWER4

A prejudicial ?uestion is an issue involved in a civil action which is similar or intimately related to the issue raised in the criminal action,

the resolution of which determines whether or not the criminal action may proceed. (Sec.  of Rule 111.) ANOT5ER ANSWER4

A prejudicial ?uestion is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. Pre/udicial uestion (') CR is charged with estafa in court for failure to remit to @@ sums of money collected by him 6CR8 for @@ in payment for goods purchased from @@, by Version 1997-2006 !dated "#

Dondee

;led against A based on the same double sale that was the subject of the civil action. A ;led a P@otion for !uspension of ActionP in the criminal case, contending that the resolution of the issue in the civil case would necessarily be determinative of his guilt or innocence. &s the suspension of the criminal action in order5 "9plain. 67+8 SUGGESTED ANSWER4

Nes. %he suspension of the criminal action is in order because the defense of A in the civil action, that he never sold the property to B and that his purported signatures in the ;rst deed of sale were forgeries, is a prejudicial ?uestion the resolution of which is determinative of his guilt or innocence. &f the ;rst sale is null and void, there would be no double sale and A would be innocent of the oense of estafa. (Sec. , Rule Remedial Law Bar Examination Q & A (1997-2006)

depositing the amounts in his 6CRLs8 personal ban2 account. CR ;les a motion to suspend proceedings pending resolution of a civil case earlier ;led in court by CR against @@ for accounting and damages involving the amounts subject of the criminal case. As the prosecutor in the criminal case, brie=y discuss your grounds in support of your opposition to the motion to suspend proceedings. 6<+8. SUGGESTED ANSWER4

As the prosecutor, & will argue that the motion to suspend is not in order for the following reasonsO . %he civil case ;led by CR against @@ for accounting and damages does not involve an issue similar to or intimately related to the issue of estafa raised in the criminal action. 7. %he resolution of the issue in the civil case for accounting will not determine whether or not the

criminal action for estafa may proceed. 111, Rules of Crimin%l !roce"ure.)

Pre/udicial uestion" Susension of Criminal Action (1999) A allegedly sold to B a parcel of land which A later also sold to R. B brought a civil action for nulli;cation of the second sale and as2ed that the sale made by A in his favor be declared valid. A theoriGed that he never sold the property to B and his purported signatures appearing in the ;rst deed of sale were forgeries. %hereafter, an &nformation for estafa was

(as v. asul, &00 SC) &2*.!

Pre$%rial Agreement ('?) @ayor %@ was charged of malversation through falsi;cation of oicial documents. Assisted by Atty. #/ as counsel de parte during pre-trial, he signed together with (Rule 11*, (Sec. 1 of former Rule 2; Sec, 1 of new Rule

#mbudsman /rosecutor %1 a P(oint !tipulation of $acts and Documents,P which was presented to the !andiganbayan. Before the court could issue a pre-trial order but after some delay caused by Atty. #/, he was substituted by Atty. M0 as defense counsel. Atty. M0 forthwith ;led a motion to withdraw the P(oint !tipulation,P alleging that it is prejudicial to the accused because it contains, inter


Page 48 of 66

alia, the statement that the PDefense admitted all the documentary evidence of the /rosecution,P thus

leaving the little or no room to accused defend himself, and violating his right against selfincrimination. !hould the court grant or deny M0Js motion5 0eason. 6<+8 SUGGESTED ANSWER4

%he court should deny M0Js motion. &f in the pretrial agreement signed by the accused and his counsel, the accused admits the documentary evidence of the prosecution, it does not violate his right against selfincrimination. :is lawyer cannot ;le a motion to withdraw. A pre-trial order is not needed. (Baas v. San#igan3aan, 9& SC) '&*(2002!. %he admission of such documentary evidence is allowed by the rule. (Sec. 2 of ule &&/; Peo$le v.
Pre$%rial" Criminal Case vs. Civil Case (1997)

1ive three distinctions between a pre-trial in a criminal case and a pre-trial in a civil case. SUGGESTED ANSWER4

%hree distinctions between a pretrial in a criminal case and a pretrial in a civil case are as followsO 1. %he pre-trial in a criminal case is conducted only

Pwhere the accused and counsel agreeP Sec. 1)O

while the pre-trial in a civil case is

mandatory.

1*).

7. %he pre-trial in a criminal case does not consider the possibility of a compromise, which is one important aspect of the pre-trial in a civil case. (Sec. 1 of former Rule 2; Sec. 2 of new Rule 1*).

*. &n a criminal case, a pre-trial agreement is re?uired to be reduced to writing and signed by the accused and Rule 11*, Sec. 4)I his counsel (See; while in a civil case, the agreement may be

contained in the pre-trial order. (Sec. 4 of former Rule 2; See 7 of new Rule 7*). Provisional 8ismissal ('') &n a prosecution for robbery against D, the prosecutor moved for the postponement of the ;rst scheduled hearing on the ground that he had lost his records of the case. %he court granted the motion but, when the new date of trial arrived, the prosecutor, alleging that he could not locate his witnesses, moved for the provisional dismissal of the case. &f DLs counsel does not object, may the court grant the motion of the prosecutor5 3hy5 6*+8 SUGGESTED ANSWER4

'o, because a case cannot be provisionally dismissed e9cept upon the e9press consent of the accused and with notice to the oended party. (Rule 117, sec. *). emedies" 5oid Judgment ('?) AR was charged before the NN 0%C with theft of jewelry valued at /7F.FFF, punishable with Version 1997-2006 !dated "#

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imprisonment of up to F years of prision mayor under the 0evised /enal Code. After trial, he was convicted of the oense charged, notwithstanding that the material facts duly established during the trial showed that the oense committed was estafa, punishable by imprisonment of up to eight years of prision mayor under the said Code. 'o appeal having been ta2en therefrom, said judgment of conviction became ;nal. &s the judgment of conviction valid5 &s the said judgment reviewable thru a special civil action for certiorari5 0eason. 6<+8 SUGGESTED ANSWER4

Nes, the judgment of conviction for theft upon an information for theft is valid because the court had jurisdiction to render judgment. :owever, the judgment was grossly and blatantly erroneous. %he variance between the evidence and the judgment of conviction is substantial since the evidence is one for estafa while the judgment is one for theft. %he elements of the two crimes are not the same. (8auro Santos v. Peo$le, &/& SC) '/7!. #ne oense does not necessarily include or is included in the other. (Sec.  of Rule 12). %he judgment of conviction is reviewable by certiorari even if no appeal had been ta2en, because the judge committed a grave abuse of discretion tantamount to lac2 or e9cess of his jurisdiction in convicting the accused of theft and in violating due process and his right to be informed of the nature and the cause of the accusation against him, which ma2e the judgment void. 3ith the mista2e in charging the proper oense, the judge should have directed the ;ling of the proper information and thereafter dismissed the original information. (Sec. 19 of Rule 119). Searc, arrant" :otion to uas, (') /olice operatives of the 3estern /olice District, /hilippine 'ational /olice, applied for a search warrant in the 0%C for the search of the house of (uan !antos and the seiGure of an undetermined amount of shabu. %he team arrived at the house of !antos but failed to ;nd him there. &nstead, the team found 0oberto Co. %he team conducted a search in the house of !antos in the presence of 0oberto Co and barangay oicials and

found ten 6F8 grams of shabu. 0oberto Co was charged in court with illegal possession of ten grams of shabu. Before his arraignment, 0oberto Co ;led a motion to ?uash the warrant on the following grounds 6a8 it was not the accused named in the search warrantI and 6b8 the warrant does not describe the article to be seiGed with suicient particularity. 0esolve the motion with reasons. 6>+8 SUGGESTED ANSWER4

%he motion to ?uash should be denied. %he name of the person in the search warrant is not important. &t is not even necessary that a particular person be

by: [email protected] Page 49 of 66 implicated (Mantaring v. oan, ).M. %o. 5-990', e3ruar 2/, &996!, so long as

the search is conducted in the place where the search warrant will be served. @oreover, describing the shabu in an undetermined amount is suiciently particular. (Peo$le v. 5ee, ".. %os. &'0*'6'7, -anuar 20, 200!

%rial" %rial in Absentia" Automatic evie2 of Conviction (199!)

. 3hat are the re?uisites of a trial in absentia5 )7+ 7.&f an accused who was sentenced to death escapes, is there still a legal necessity for the !upreme Court to review the decision of conviction5 )*+ SUGGESTED ANSWER4

. %he re?uisites of trial in absentia areO 6a8 the accused has already been arraignedI 6b8 he has been duly noti;ed of the trialI and 6c8 his failure to appear is unjusti;able. (Sec. &' F2D, )rticle +++. Constitution;

Para#a vs. =eneracion, 269 SC) 7& F&997D.!

7. Nes, there is still a legal necessity for the !upreme Court (%s of 24 t0e Court of -88e%ls 0%s t0e @uris"iction to suc0 reiew) to review the decision of conviction sentencing the accused to death, because he is entitled to an automatic review of the death sentence. (Sees. FeD an# &0, ule &22, ules of Criinal Proce#ure; Peo$le vs. 4s$argas, 260 SC) *9.!

5enue (1997)

3here is the proper venue for the ;ling of an information in the following cases5 a8 %he theft of a car in /asig City which was brought to #bando, Bulacan, where it was cannibaliGed. b8 %he theft by R, a bill collector of ABC Company, with main oices in @a2ati City, of his collections from customers in %agaytay City. &n the contract of employment, R was detailed to the Calamba branch oice, aguna, where he was to turn in his collections.

c8 %he malversation of public funds by a /hilippine consul detailed in the /hilippine "mbassy in ondon. SUGGESTED ANSWER4

6a8 %he proper venue is in /asig City where the theft of the car was committed, not in #bando where it was cannibaliGed. %heft is not a continuing oense. (Peo$le v Merca#o, 6* Phil 66*!.

6b8 &f the crime charged is theft, the venue is in Calamba where he did not turn in his collections. &f the crime of R is estafa, the essential ingredients of the oense too2 place in %agaytay City where he received his collections, in Calamba where he should have turned in his collections, and in @a2ati City where the ABC Company was based. %he information may therefore be ;led in %agaytay City or Calamba or @a2ati which have concurrent territorial (urisdiction. (Catingu3 vs. Court of )$$eals, &2& SC) &06!. Version 1997-2006 !dated "# Dondee


6c8 %he proper court is the !andiganbayan which has jurisdiction over crimes committed by a consul or higher oicial in the diplomatic service. (Sec. '(c!. P &606, as aen#e# 3 ). %o. 797*!. %he !andiganbayan is a national court. (%une v. San#igan3aan, &&& SC) ' F&9/2D. &t

has only one venue at present, which is in @etro @anila, until 0A. 'o. EHE<, providing for two other branches in Cebu and in Cagayan de #ro, is implemented. A%&#"i$% A#'-%&'4

6b8 %he information may be ;led either in Calamba or in @a2ati City, not in %agaytay City where no oense had as yet been committed, 6c8 Assuming that the !andiganbayan has no jurisdiction, the proper venue is the ;rst 0%C in which the charge is ;led (Sec. 1("). Rule 11).

E3IDENCE Admissibility (199!) %he barangay captain reported to the police that R was illegally 2eeping in his house in the barangay an Armalite @K ri=e. #n the strength of that information, the police conducted a search of the house of R and indeed found said ri=e. %he police raiders seiGed the ri=e and brought R to the police station. During the investigation, he voluntarily signed a !worn !tatement that he was possessing said ri=e without license or authority to possess, and a 3aiver of 0ight to Counsel. During the trial of R for illegal possession of ;rearm, the prosecution submitted in evidence the ri=e. !worn !tatement and 3aiver of 0ight to Counsel, individually rule on the admissibility in evidence of theO

. 0i=eI )7+ 7. !worn !tatementI and )7+ *. 3aiver of 0ight to Counsel of R. )+ SUGGESTED ANSWER4

. %he ri=e is not admissible in evidence because it was seiGed without a proper search warrant. A warrantless search is not justi;ed. %here was time to secure a search warrant. (Peole us. ncinada 3.. o. 11+7'E *ctober '. 1997 and ot,er cases)

7.

%he sworn statement is not admissible in

evidence because it was ta2en without informing him of his custodial rights and without the assistance of counsel which should be independent and competent and preferably of the choice of the accused. (Peole us. JanuarioE '+7 SCA +!.)

*. %he waiver of his right to counsel is not admissible because it was made without the assistance of counsel of his choice. (Peole us. 3omeE '7 SCA =.)

Admissibility ('')


Page 50 of 66

Acting on a tip by an informant, police oicers stopped a car being driven by D and ordered him to open the trun2. %he oicers found a bag containing several 2ilos of cocaine. %hey seiGed the car and the cocaine as evidence and placed D under arrest. 3ithout advising him of his right to remain silent and to have the assistance of an attorney, they ?uestioned him regarding the cocaine. &n reply, D said, T& donLt 2now anything about it. &t isnLt even my car.U D was charged with illegal possession of cocaine, a prohibited drug. pon motion of D, the court suppressed the use of cocaine as evidence and dismissed the charges against him. D commenced proceedings against the police for the recovery of his car. &n his direct e9amination, D testi;ed that he owned the car but had registered it in the name of a friend for convenience. #n cross-e9amination, the attorney representing the police as2ed, TAfter your arrest, did you not tell the arresting oicers that it wasnLt your car5U &f you were DLs attorney, would you object to the ?uestion5 3hy5 6<+8 SUGGESTED ANSWER4

Nes, because his admission made when he was ?uestioned after he was placed under arrest was in violation of his constitutional right to be informed of his right to remain silent and to have competent and independent counsel of his own choice. :ence, it is inadmissible in evidence.

FConstitutionE Art. E sec. 1'"

.A. 7=! (199' )E secE '" Peole v. :a,inayE ' SCA =G. ALTERNATI3E ANSWER4

Nes, because the ?uestion did not lay the predicate to justify the crosse9amination ?uestion. Admissibility ('?) !gt. 10 of 3/D arrested two '/A suspects, @a9 and Bri9, both aged 77, in the act of robbing a grocery in "rmita. As he handcued them he noted a pistol tuc2ed in @a9Js waist and a dagger hidden under Bri9Js shirt, which he promptly con;scated. At the police investigation room, @a9 and Bri9 orally waived their right to counsel and to remain silent. %hen under oath, they freely answered ?uestions as2ed by the police des2 oicer. %hereafter they signed their sworn statements before the police captain, a lawyer. @a9 admitted his part in the robbery, his possession of a pistol and his ownership of the pac2et of shabu found in his poc2et. Bri9 admitted his role in the robbery and his possession of a dagger. But they denied being '/A hit men. &n due course, proper charges were ;led by the City /rosecutor against both arrestees before the @@ 0%C.

@ay the written statements signed and sworn to by @a9 and Bri9 be admitted by the trial court as evidence for the prosecution5 0eason. 6<+8 SUGGESTED ANSWER4

'o. %he sworn written statements of @a9 and Bri9 may not be admitted in evidence, because they were not assisted by counsel. "ven if the police captain Version 1997-2006 !dated "#

Dondee


before whom they signed the statements was a lawyer, he was not functioning as a lawyer, nor can he be considered as an independent counsel. 3aiver of the right to a lawyer must be done in writing and in the presence of independent counsel. (Peole v. :a,inayE ' SCA = 11999G" Peole v. sirituE ' SCA  F1999G ).

Admissibility" Admission of 3uilt" e
3hat are the re?uirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence5 67.<+8 SUGGESTED ANSWER4

. 7. *.

%he admission must be voluntary. %he admission must be in writing. %he admission must be made with the assistance of competent, independent counsel.

>.

%he

admission

must

be

e9press

(Peo$le v.

Prinsi$e, ".. %o. &*/62, Ma 2, 2002!.

<.

&n case the accused waives his rights to silence and to counsel, such waiver must be in writing, e9ecuted with the assistance of competent, independent counsel.

Admissibility" 8ocument" =ot raised in t,e Pleading ('?) &n a complaint for a sum of money ;led before the @@ 0%C, plainti did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plainti duly oered "9h. PAP in evidence for the stated purpose of proving the ma2ing of e9trajudicial demand on defendant to pay /
%he courtJs admission of "9h. PAP in evidence is not erroneous. &t was admitted in evidence without objection on the part of the defendant. &t should be treated as if it had been raised in the pleadings. %he complaint may be amended to conform to

the evidence, but if it is not so amended, it does not aect the result of the trial on this issue. (Sec.  of Rule 1).

Admissibility" lectronic vidence (')

a8 !tate the rule on the admissibility of an electronic evidence. b8 3hen is an electronic evidence regarded as being the e?uivalent of an original document under the Best "vidence 0ule5 >+ SUGGESTED ANSWER4

6a8 3henever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be


Page 51 of 66

deemed to include an electronic document as de;ned in these 0ules. (Sec. 1 of Rule 3, Rules of lectronic i"ence eAectie -uust 1, 21).

An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the 0ules of Court and related laws and is authenticated in the manner prescribed by these 0ules. (Sec. 2 of Rule 3, /".). %he authenticity of any private electronic document must be proved by evidence that it had been digitally signed and other appropriate security measures have been applied. (Sec. 2 of Rule , /".). 6b8 An electronic document shall be regarded as the e?uivalent of an original document under the Best "vidence 0ule if it is a printout or output readable by sight or other means, shown to re=ect the data accurately. (Sec. 1 of Rule 4)

Admissibility" *b/ect or eal vidence (199?) At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution oers in evidence a photocopy of the mar2ed /FF.FF bills used in the TbuybustU operation. Ace objects to the introduction of the photocopy on the ground that the Best "vidence 0ule prohibits the introduction of secondary evidence in lieu of the original.

a8 &s

the

photocopy

real

6object8

evidence or evidence5 b8 &s the photocopy evidence5

documentary admissible

in

SUGGESTED ANSWER4

a8%he photocopy of the mar2ed bills is real 6object8 evidence not documentary evidence, because the mar2ed bills are real evidence. b8 Nes, the photocopy is admissible in evidence, because the best evidence rule does not apply to object or real evidence. Admissibility" *b/ections (1997)

3hat are the two 2inds of objections5 "9plain each brie=y. 1iven an e9ample of each. SUGGESTED ANSWER4

%wo 2inds of objections areO 68 the evidence being presented is not relevant to the issueI and 678 the evidence is incompetent or e9cluded by the law or the rules, (Sec. 3, Rule 13*). An e9ample of the ;rst is when the prosecution oers as evidence the alleged oer of an &nsurance company to pay for the damages suered by the victim in a homicide case.

(See 1997 'o. 14). "9amples of the second are evidence obtained in violation of the Constitutional prohibition against unreasonable searches and seiGures and confessions and admissions in violation of the rights of a person under custodial &nvestigation. ALTERNATI3E ANSWERS4 Version 1997-2006 !dated "#

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8 !peci;c objectionsO "9ampleO parol evidence and best evidence rule 1eneral #bjectionsO "9ampleO continuing objections 6!ec. *E of 0ule *78. 78 %he two 2inds of objections areO 68 objection to a ?uestion propounded in the course of the oral e9amination of the witness and 678 objection to an oer of evidence in writing. #bjection to a ?uestion propounded in the course of the oral e9amination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent otherwise, it is waived. An oer of objection in writing shall be made within three 6*8 days after notice of the oer, unless a dierent period is allowed by the court. &n both instances the grounds for objection must be speci;ed. An e9ample of the ;rst is when the witness is being cross-e9amined and the cross e9amination is on a matter not relevant. An e9ample of the second is that the evidence oered is not the best evidence. Admissibility" *ffer to :arry" Circumstantial vidence (199!)

A was accused of having raped R. 0ule on the admissibility of the following pieces of evidenceO . an oer of A to marry RI and 6*+ 7. a pair of short pants allegedly left by A at the crime which the court, over the objection of A, re?uired him to put on, and when he did, it ;t

him well. )7+ SUGGESTED ANSWER4

. AJs oer to marry R is admissible in evidence as an &mplied admission of guilt because rape cases are not allowed to be compromised. (Sec. 27 of ule &; Peo$le vs. oingo, 226 SC) &*6.!

7. %he pair of short pants, which ;t the accused well, is circumstantial evidence of his guilt, although standing alone it cannot be the basis of conviction. %he accused cannot object to the court re?uiring him to put the short pants on. &t is not part of his right against self-incrimination because it is a mere physical act. Admissibility" *ffer to Pay ;enses (1997)

A, while driving his car, ran over B. A visited B at the hospital and oered to pay for his hospitaliGation e9penses.

After the ;ling of the criminal case against A for serious physical injuries through rec2less imprudence. AJs insurance carrier oered to pay for the injuries and damages suered by B. %he oer was rejected because B considered the amount oered as inade?uate. a8 &s the oer by A to pay the hospitaliGation e9penses of B admissible in evidence5 b8 &s the oer by AJs insurance carrier to pay for the injuries and damages of B admissible in evidence5

(Sec. 1, Rule 13, Rules of Court)

of Court)


Page 52 of

66 SUGGESTED ANSWER4

6a8 %he oer by A to pay the hospitaliGation e9penses of B is not admissible in evidence to prove his guilt in both the civil and criminal cases. (Rule 13, Sec. 27, fourt0 8%r.).

6b8 'o. &t is irrelevant. %he obligation of the insurance company is based on the contract of insurance and is not admissible in evidence against the accused because it was not oered by the accused but by the insurance company which is not his agent. Admissibility" Private 8ocument (')

@ay a private document be oered, and admitted in evidence both as documentary evidence and as object evidence5 "9plain. SUGGESTED ANSWER4

Nes, it can be considered as both documentary and object evidence. A private document may be oered and admitted in evidence both as documentary evidence and as object evidence. A document can also be considered as an object for purposes of the case. #bjects as evidence are those addressed to the

senses of the court. Documentary evidence consists of writings or any material containing letters, words, numbers, ;gures, symbols or other modes of written e9pressions, oered ns proof of their contents. 6Sec. 2, Rule 13, Rules

:ence, a private document may be presented as object evidence in order to Jestablish certain physical evidence or characteristics that are visible on the paper and writings that comprise the document. Admissibility" Proof of &iliation" Action of Partition (') inda and spouses Arnulfo and 0egina Ceres were co-owners of a parcel of land. inda died intestate and without any issue. %en 6F8 persons headed by (ocelyn, claiming to be the collateral relatives of the deceased inda, ;led an action for partition with the 0%C praying for the segregation of indaLs X share, submitting in support of their petition the baptismal certi;cates of seven of the petitioners, a family bible belonging to inda in which the names of the petitioners have been entered, a photocopy of the birth certi;cate of (ocelyn, and a certi;cation of the local civil registrar that its oice had been completely raGed by ;re. %he spouses Ceres refused to partition on the following groundsO 8 the baptismal certi;cates of the parish priest are evidence only of the administration of the sacrament of baptism and they do not prove ;liation of the alleged collateral relatives of the deceasedI 78 entry in the family bible is hearsayI *8 the certi;cation of the registrar on nonavailability of the records of birth does not prove ;liationO >8 in partition cases where ;liation to the deceased is in dispute, prior and separate judicial declaration of heirship in a settlement of estate proceedings is necessaryI and <8 there is need for publication as real Version 1997-2006 !dated "#

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property is involved. As counsel for (ocelyn and her co-petitioners, argue against the objections of the spouses Ceres so as to convince the court to allow the partition. Discuss each of the ;ve 6<8 arguments brie=y but completely. 6F+8 SUGGESTED ANSWER4

68 %he baptismal certi;cate can show ;liation or prove pedigree. &t is one of the other means allowed under the 0ules of Court and special laws to show pedigree. (5rini#a# v. Court of )$$eals, 2/9 SC) &//

F&99/D;
678 "ntries in the family bible may be received as evidence of pedigree. (Sec. '0, ule &0, ules of

Court!.

6*8 %he certi;cation by the civil registrar of the nonavailability of records is needed to justify the presentation of secondary evidence, which is the photocopy of the birth certi;cate of (ocelyn. (
6>8 Declaration of heirship in a settlement

proceeding is not necessary. &t can be made in the ordinary action for partition wherein the heirs are e9ercising the right pertaining to the decedent, their predecessor-in- interest, to as2 for partition as co-owners 6&d.8 6<8"ven if real property is involved, no publication is necessary, because what is sought is the mere segregation of indaLs share in the property. (Sec. 1 of Rule 9; /".)

Admissibility" ules of vidence (1997)

1ive the reasons underlying the adoption of the following rules of evidenceO 6a8 Dead @an 0ule 6b8 /arol "vidence 0ule 6c8 Best "vidence 0ule 6d8 %he rule against the admission of illegally obtained e9trajudicial confession 6e8 %he rule against the admission of an oer of

compromise in civil cases SUGGESTED ANSWER4

%he reasons behind the following rules are as followsO 6a8 &E'& "'$ RU(EO

if death has closed the lips of one party, the policy of the law is to close the lips of the other. ("oni v. Court of)$$eals, 877''. %his is Se$te3er 2, &9/6, &'' SC) 222!. to prevent the temptation to perjury because death has already sealed the lips of the party. 6b8 %'R( E*I&E$+E RU(EO &t is designed to give certainty to a transaction which has been reduced to writing, because written evidence is much more certain and accurate than that which rests on =eeting memory only. (#r%ncisco, Rules of Court Bol. B//, !%rt /. 8. 14)


6c8 E- 0ule is

E*I&E$+E

Page 53 of 66

RU(E O %his

adopted for the prevention of fraud and is declared to

be essential to the pure administration of justice. (:or%n, Bol. , 8. 12.) &f a party is in possession of such evidence and withholds it, the presumption naturally arises that the better evidence is withheld for fraudulent purposes. (#r%ncisco. Rules of Court, ol. B//. !%rt /, 88, 121,122)

6d8 An illegally obtained e9trajudicial confession nulli;es the intrinsic validity of the confession and renders it unreliable as evidence of the truth. (:or%n, ol. , 8. 27) it is the fruit of a poisonous tree.

6e8 %he reason for the rule against the admission of an oer of compromise in civil case as an admission of any liability is that parties are encouraged to enter into compromises. Courts should endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (-rt. 229, Ciil Co"e). During pre-trial, courts should direct the parties to consider the possibility of an amicable settlement. (Sec. 1[%] of former Rule 2= Sec. 2 [%] of new Rule 1).

Best vidence ule (1997)

3hen A loaned a sum of money to B. A typed a single copy of the promissory note, which they both

signed A made two photo 69ero9ed8 copies of the promissory note, giving one copy to B and retaining the other copy. A entrusted the typewritten copy to his counsel for safe2eeping. %he copy with AJs counsel was destroyed when the law oice was burned. a8 &n an action to collect on the promissory note, which is deemed to be the PoriginalP copy for the purpose of the PBest "vidence 0uleP5 b8 Can the photocopies in the hands of the parties be considered Pduplicate original copiesP5 c8 As counsel for A, how will you prove the loan

given to A and B5 SUGGESTED ANSWER4

6a8 %he copy that was signed and lost is the only PoriginalP copy for purposes of the Best "vidence 0ule. (Sec. 4 [b] of Rule 13).

6b8 'o,

%hey are original copies

not

duplicate

because there are photocopies which were not signed 6 :a,ilum v. Court of AealsE 17 SCA =!'8, %hey constitute secondary evidence. (Sec.  of Rule 13). 6c8 %he loan given by A to B may be proved by secondary evidence through the 9ero9ed copies of the promissory note. %he rules provide that when the original document is lost or destroyed, or cannot be produced in court, the oerer, upon proof of its e9ecution or e9istence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the Version 1997-2006 !dated "#

Dondee

testimony of witnesses in the order stated. (Sec.  of Rule 13).

evidence against the latter5 )*+ 7. 3hat is the probative value of a witnessJ Aidavit of 0ecantation5 )7+

Burden of Proof vs. Burden of vidence ('?)

SUGGESTED ANSWER4


Distinguish Burden of proof and burden of evidence. SUGGESTED ANSWER4

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence re?uired by law. (Sec. 1 of Rule 131), while burden of evidence is the duty of a party to go forward with the evidence to overthrow prima facie evidence established against him. (Bautista v. SarmientoE 1! SCA

!7 F19!G).

. Nes. % he a ccused c an t estify by repeating his earlier uncounseled e9trajudicial confession, because he can be subjected to cross-e9amination. 7. #n the probative value of an aidavit of recantation, courts loo2 with disfavor upon recantations because they can easily be secured from witnesses, usually through intimidation or for a monetary consideration, 0ecanted testimony is e9ceedingly unreliable. %here is always the probability

C,aracter vidence ('')

D was prosecuted for homicide for allegedly beating up  to death with an iron pipe. A. @ay the prosecution introduce evidence that  had a good reputation for peacefulness and non violence5 3hy5 67+8 B. @ay D introduce evidence of speci;c violent acts by 5 3hy5 6*+8 SUGGESTED ANSWER4

A. %he prosecution may introduce evidence of the good or even bad moral character of the victim if it tends to establish in any reasonable degree the probability or improbability of the oense charged. [Rule 13, sec. 1 % (3)]. &n this case, the evidence is not relevant. B. Nes, D may introduce evidence of speci;c violent acts by . "vidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another timeI but it may be received to prove a speci;c intent or 2nowledge, identity, plan, system, scheme, habit, custom or usage, and the li2e. (Rule 13, sec. 34). Confession" Affidavit of ecantation (199!)

. &f the accused on the witness stand repeats his earlier uncounseled e9trajudicial confession implicating his coaccused in the crime charged, is that testimony admissible in

(Sec. 49,


Page 54 of 66

that it will be repudiated.

(:olina vs. Peole.

'9 SCA

1!.)

&acts" 0egislative &acts vs. Ad/udicative &acts ('?)

egislative facts and adjudicative facts. SUGGESTED ANSWER4

egislative facts refer to facts mentioned in a statute or in an e9planatory note, while adjudicative facts are facts found in a court decision. 6earsay vidence ('')

0omeo is sued for damages for injuries suered by the plainti in a vehicular accident. (ulieta, a witness in court, testi;es that 0omeo told her 6(ulieta8 that he 60omeo8 heard Antonio, a witness to the accident, give an e9cited account of the accident immediately after its occurrence. &s (ulietaLs testimony admissible against 0omeo over proper and timely objection5 3hy5 6<+8 SUGGESTED ANSWER4

'o, (ulietaLs testimony is not admissible against 0omeo, because while the e9cited account of Antonio, a witness to the accident, was told to 0omeo, it was only 0omeo who told (ulieta about it, which ma2es it hearsay. 6earsay vidence vs. *inion vidence ('?)

:earsay evidence and opinion evidence. SUGGESTED ANSWER4

:earsay evidence consists of testimony

that is not based on personal 2nowledge of the person testifying, (see Sec. 3, Rule 13), while opinion evidence is e9pert evidence based on the personal 2nowledge s2ill,

e9perience or training of the person testifying /".) and evidence of an ordinary witness on limited matters (Sec. , /".). 6earsay" ;cetion" 8ead :an Statute ('1)

@a9imo ;led an action against /edro, the administrator of the estate of deceased (uan, for the recovery of a car which is part of the latterLs estate. During the trial, @a9imo presented witness @ariano who testi;ed that he was present when @a9imo and (uan agreed that the latter would pay a rental of /7F,FFF.FF for the use of @a9imoLs car for one month after which (uan should immediately return the car to @a9imo. /edro objected to the admission of @arianoLs testimony. &f you were the judge, would you sustain /edroLs objection5 3hy5 6<+8 SUGGESTED ANSWER4

'o, the testimony is admissible in evidence because witness @ariano who testi;ed as to what @a9imo and (uan, the deceased person agreed upon, is not dis?uali;ed to testify on the agreement. %hose dis?uali;ed are parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against the administrator or (uanLs estate, upon a Version 1997-2006 !dated "#

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claim or demand against his estate as to any matter of fact occurring occurring before before (uanLs death. (Sec. 23 of Rule 13) 6earsay" ;cetion" 8ying 8eclaration (199!)

0e?uisites of Dying Declaration. )7+8

hearsay. hearsay. &t is part of the res gestae. &t is also an independently independently relevant statement. %he police oic oicer er test testi; i;ed ed of his his own own pers person onal al 2nowledge, 2nowledge, not to the truth of CandidaJs statement, i.e., that she told him, despite her pleas, Dencio had raped her. (Peo$le v. "a##i,".. %o. 7'06*, 7'06*, e3ruar e3ruar 27,&9/9! 27,&9/9!

SUGGESTED ANSWER4

the $oli $olice ce o>ic o>icer er will will test testif if  that that he %he re?uisites for the admissibility of 3! +f the notice# noti ce# Can#i#a Can #i#a to 3e hsteric hst erical al an# on the the a dyin dying g declar declarat atio ion n areO areO 6a8 the verge verge of colla$se colla$se,, woul# woul# such testio testion n 3e declarati declaration on is made by the deceased deceased consi#e consi#ere# re# as o$inion o$inion,, hence, hence, ina#is ina#issi3l si3le e under the consciousness of his impending 4$lain. 4$lain. deat deathI hI 6b8 6b8 the the dece deceas ased ed was was at the the time time SUGGESTED ANSWER4 cannot be conside considered red as opinion opinion,, competent competent as a witnessI witnessI 6c8 the the declaration declaration 'o, it cannot because he was testi testifyin fying g on what what he actually actually conc concer erns ns the the cause cause and and surr surrou ound ndin ing g because circumstances of the declarantJs deathI observed. %he last paragraph of !ec.
%he declaration of a dying person, made unde underr the the cons consci ciou ousn snes ess s of an impendin impending g death, death, may be received received in any case wherein his death is the subject subject of &n?u &n?uir iry y, as evid eviden ence ce of the the caus cause e and and surroun surrounding ding circum circumstanc stances es of such death. death. (Sec. 37 of Rule 13.)

6earsay" ;cetion" es 3estae" *inion of *rdinary itness (') Denc Dencio io barged barged into into the the house house of @arce @arcela, la, tied tied her her to a chair chair and and robbe robbed d her her of asso assort rted ed pieces pieces of jewe jewelr lry y and and mone money y. Denc Dencio io then then brough broughtt Candid Candida, a, @arc @arcela elaJs Js maid, to a bedroom where he raped her. @arcela could hear Candida crying and pleadi pleadingO ngO P:uw P:uwagY agY @aawa @aawa 2a sa a2inYP a2inYP After raping Candida, Dencio =ed from the house with the loot. Candida then untied @arcela and rushed to the police station about a 2ilometer away and told /olice #icer 0oberto @aawa that that Dencio Dencio had barged into the house of @arcela, tied the latter latter to a chair chair and and robb robbed ed her her of of her her jewelry and money. money. Candida also related to the police oicer that despite her pleas, pleas, Denc Dencio io had raped raped her her. %he %he policema policeman n noticed noticed that Candida Candida was hysterical and on the verge of collapse. Dencio was charged with robbery with rape. rape. During During the trial, trial, Candida Candida can no longer be located. 6+8 a! +f the $rosecution $resents Police >icer >icer o3erto Maawa to testif on what Can Can#i#a #i#a ha# ha# tol# tol# hi, hi, woul woul# # such such testion testion  of the $olice $olicean an 3e hearsa hearsa  4$lain. 4$lain. SUGGESTED ANSWER4

'o. %he testimony of the policeman is not

Page 55 of


66 "vidence, "vidence, e9pressly e9pressly provides provides that a witness witness may testify testify on his impressions of the emotion, behavior behavior,, condition condition or appearanc appearance e of a person. 6earsay" ;cetions (1999)

a8 De;ne De;ne hearsay evidence5 evidence5 67+8 67+8 b8 3hat are the e9ceptions hearsay rule5 67+8

to

the

SUGGESTED ANSWER4

a. :earsay :earsay evidenc evidence e may be de;ned de;ned as evidence that consists of testimony not comin coming g from person personal al 2nowled 2nowledge ge (Sec. (Sec.

3,

Rule

13, 13,

Rules Rules

of

Court) Court)..

:earsay testimony is the testimony testimony of a witness as to what he has heard heard other persons say about the facts in issue. b. %he %he e9ce e9cept ptio ions ns to the the hear hearsa say y rule rule areO dying declaration, declaration, declaration agains againstt inter interest est,, act or declaration about pedigree, family reputatio reputation n or tradition tradition regardin regarding g pedigree pedigree,, common common reputati reputation, on, part part of the res est%e, entries in the course of busi busine ness ss,, entr entrie ies s in oic oicia iall records, records, commerc commercial ial lists and the li2e, learned treatises, and testimony or deposition at

aformer aformer proceedin proceeding. g.

(37 to 47, Rule

13, Rules of Court)

6earsay" ;cetions" 8ying 8eclaration (1999) %he accused was charged with robbery and homicid homicide. e. %he victim victim suered suered several stab wounds. &t appears that eleven 68 hours after the crime, while the victim was being brought

to the hospital in a jeep, with his brother and a policeman policeman as companions, companions, the the victim was as2ed certain ?uestions which he answered, pointing to the accused as his assailant assailant.. :is answers answers were were put put down down in writing, but since he was a in a critical condition, his brother and the policeman signed the statement. &s the statement admissible as a dying declaration declaration5 5 "9plain. 67+8 SUGGESTED ANSWER4

Nes. Nes. %he statement is admissible as a dyin dying g decl declar arat atio ion n if the the vict victim im subse?uently died and his answers answers were made under the conscio consciousne usness ss of impending death (Sec. 37 of Rule 13) . %he fact that he did not sign the statement poin pointt to the the acc accus used ed as his his assa assail ilan ant, t, because because he was in critical critical conditi condition, on, does not aect its admissibility as a dying dying declarati declaration. on. A dying dying declarati declaration on need not be in writing (Peo$le v. =iovicente, 2/6 SC) &!

6earsay" nalicable (') R was charged with robbery. #n the strength strength of a warrant warrant of arrest arrest issued issued by the the cou court rt,, R was was arr arres este ted d by poli police ce operatives. %hey seiGed from his person a handgun. A charge for illegal possession of ;rearm was also ;led against him. &n a press conference conference called by the police, R admitted admitted that that he had robbed robbed the victim victim of jewelry valued valued at /
%he robbery and illegal illegal possessio possession n of ;rearm cases were tried jointly. %he prosecut prosecution ion presente presented d in evidenc evidence e a newspaper clipping of the report to the reporter who was present during the press conference Version 1997-2006 !dated "#

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stating that R admitted the robbery. &t li2ewise presented presented a certi;cation of of the /'/ $irearms and "9plosive #ice attesting that the accused had no license to carry any ;rearm. %he certifying certify ing oicer, however, was not presented as a witness. witness. Both pieces of evidence were objected to by the defense. 6K+8

&99!

2.

r#inances a$$rove# 3 unici$alities un#er its territorial Auris#iction;

SUGGESTED ANSWER4

&n the absence of statutory authority, the 0%C may not ta2e judicial notice of ordinances approved approved by munici municipalit palities ies under under their their territorial jurisdiction, jurisdiction, e9cept on on appeal from from the muni munici cipal pal trial trial courts courts,, which which too2 too2 a8 &s the newspa newspaper per clipp clipping ing admis admissib sible le judicial notice of the ordinance ordinance in in evidence against R5 (:.S.. v. Blanco, Blanco, "., %o. &2' &2'*, *, ?uestion. (:.S

b8 &s the certi certi;c ;cat atio ion n of the /'/ /'/ %ove3er $ire $irear arm m and and "9pl "9plos osiv ive e #ic #ice e 9,&9&7; :.S. v.
SUGGESTED ANSWER4

Nes, Nes, the newspaper clipping clipping is admissible in 6a8

evidence against R. regardless of the truth or falsity of a statement, the hearsay hearsay rule does not apply and the statement may be shown wher where e the the fact fact that it is made made is relevant. "vidence as to the ma2ing of such statem statement ent is not not secon secondar dary y but primary, primary, for the statement itself may cons consti titu tute te a fact fact in issu issue e or be circ circums umstan tantia tiall lly y relev relevant ant as to the ("otesco e9is e9iste tenc nce e of such such fact fact.. +nvestent Cor$oration vs. Chatto, 2&0

SC) &/ F&992D!

6b8 Nes, the certi;ca certi;cation tion is admissible in evidence against R because a written written statem statement ent signe signed d by an oicer oicer having the custody of an oicial record or by his his depu deputy ty that that afte afterr dili dilige gent nt sear search ch no record or entry entry of a speci;ed speci;ed tenor is found to e9is e9istt in the the rec records of his oic ice, acco accomp mpan anie ied d by a cert certi; i;ca cate te as abov above e provided, is admissible as evidence that the records records of his oice oice contain contain no such record or entry. entry. (Sec. 2* of Rule 132).

Judicial =otice" vidence (')

"9plain brie=y whether the 0%C may, motu 8ro8rio , ta2e judicial judicial notice notice ofO ofO 6<+8 &. 5he street nae of etha$hetaine h#ro chlori#e is sha3u.

(Sec. 1 of Rule

SUGGESTED ANSWER4

%he 0%C may may motu 8ro8rio judicial 8ro8rio ta2e judicial notice of the street name of methamphetamine hydrochloride is shabu, considering the chemical composition of (Peo$le v. Macasling Macasling,, "M, %o. shabu. (Peo$le 90'2, Ma 27,

(Sec. 4. Rule 13).

Page 56 of 66 %he 0%C may not generally ta2e judicial notice of foreign laws (+n re 4state of


-ohnson, ".. %o. &2767, %ove3er &6, &9&/; lueer v.
which must be proved li2e any other matter of fact (S -oe 8ieng v. S Iuia, ".. %o. '7&/, March &9, &9&0! e9cept in a few instances, the court in the e9ercise of its sound judicial discretion, may ta2e notice of foreign laws when /hilippine courts are evidently familiar with them, such as the !panish Civil Code, which had ta2en eect in the /hilippines, and other allied legislation. (Par#o v. e$u3lic, ".. %o. 8

22'/ -anuar 2, &9*0; elga#o v. e$u3lic, ".. %o. 8 2*'6, -anuar . 2/, &9*0!

'.

ules an# egulations issue# 3 ?uasi Au#icial 3o#ies i$leenting statutes;

SUGGESTED ANSWER4

%he 0%C may ta2e judicial notice of 0ules and 0egulations issued by ?uasi-judicial bodies implementing statutes, because they are capable of un?uestionable demonstration (Chattaal v. Collector of Custos, ".. %o. &6'7, %ove3er ,&920! ,

unless the law itself considers such rules as an integral part of the statute, in which case judicial notice becomes mandatory. *.

a$e a 3e coitte# even in $u3lic $laces.

SUGGESTED ANSWER4

%he 0%C may ta2e judicial notice of the fact that rape may be committed even in public places. %he Ppublic settingP of the rape is not an indication of consent. (Peo$le v. 5ongson, ".. %o. 9&26&, e3ruar &/, &99&!

%he !upreme Court has ta2en judicial notice of the fact that a man overcome by perversity and beastly passion chooses neither the time, place, occasion nor victim. (Peo$le v, cto3er &,

Barcelona,

"..

%o.

/2*/9,

&990!

Judicial =otice" vidence" &oreign 0a2 (1997)

a8 1ive three instances when a /hilippine court can ta2e judicial notice of a foreign law. b8 :ow do you prove a written foreign law5 c8 !uppose a foreign law was pleaded as part of the defense of defendant but no evidence was presented to prove the e9istence of said law, what is the presumption to be ta2en by the court

as to the wordings of said lawP5 SUGGESTED ANSWER4

6a8 %he three instances when a /hilippine court can ta2e judicial notice of a foreign law areO 68 when the /hilippine courts are evidently familiar with the foreign law (:or%n. Bol. , 8. 34, 19* e"ition); 678 when the foreign law refers to the law of nations 129) and 6*8 when it refers to a published treatise, periodical or pamphlet on the subject of law if the court ta2es judicial notice of the fact that the writer thereof is recogniGed in his profession or calling as

e9pert on the subject Version 1997-2006 !dated "#

Dondee


6b8 A written foreign law may be evidenced by an oicial publication thereof or by a copy attested by the oicer having the legal custody of the record, or by his deputy, and accompanied. &f the record is not 2ept in the /hilippines, with a certi;cate that such oicer has the custody, if the oice in which the record is 2ept is in a foreign country, the certi;cate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any oicer in the foreign service of the /hilippines stationed in the foreign country in which the record is 2ept, and authenticated by the seal of his oice (Sec. 2', ule &2, Galaea v. C), 22/

SC) 2!.

6c8 %he presumption is that the wordings of the foreign law are the same as the local law. (%orthwest rient )irlines v. Court of )$$eals, 2'& SC) &92; Moran, =ol. 6. $age ', &9/0 e#ition; 8i v. Collector of Custos, 6 Phil. '72!. %his is 2nown as the

/0#C"!!A /0"!@/%&#'. :emorandum (199+)

R states on direct e9amination that he once 2new the facts being as2ed but he cannot recall them now. 3hen handed a written record of the facts he testi;es that the facts are correctly stated, but that he has never seen the writing before. &s the writing admissible as past recollection recorded5 "9plain, SUGGESTED ANSWER4

'o, because for the written record to be admissible as past recollection recorded. &t must have been written or recorded by R or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he 2new that the same was correctly written or recorded. (Sec. 1 of Rule 132) But in this case R has never seen the writing before. *ffer of vidence (1997)

A trial court cannot ta2e into consideration in deciding a case an evidence that has not been Pformally oeredP. 3hen are the following pieces of evidence formally oered5 6a8 %estimonial evidence

6b8 6c8

Documentary evidence #bject evidence

SUGGESTED ANSWER4

6a8 %estimonial evidence is formally oered at the time the witness is called to testify. (Rule 132. Sec. 3, rst 8%r.). 6b8 Documentary evidence is formally oered after the presentation of the Sec. 3, testimonial evidence. (Rule 132, secon" 8%r.).

6c8 %he same is true with object evidence. &t is also oered after the presentation of the testimonial evidence.


Page 57 of

66 *ffer of vidence" res inter alios acta (') R and N were charged with murder. pon application of the prosecution, N was discharged from the &nformation to be utiliGed as a state witness. %he prosecutor presented N as witness but forgot to state the purpose of his testimony much less oer it in evidence. N testi;ed that he and R conspired to 2ill the victim but it was R who actually shot the victim. %he testimony of N was the only material evidence establishing the guilt of R. N was thoroughly cross- e9amined by the defense counsel. After the prosecution rested its case, the defense ;led a motion for demurrer to evidence based on the following grounds.

6a8 %he testimony of N should be e9cluded because its purpose was not initially stated and it was not formally oered in evidence as re?uired by !ection *>, 0ule *7 of the 0evised 0ules of "videnceI and 6b8 NLs testimony is not admissible against R pursuant to the rule on Tres inter alios actaU. 0ule on the motion for demurrer to evidence on the above grounds. 6K+8 SUGGESTED ANSWER4

%he demurrer to the evidence should be denied becauseO a8 %he testimony of N should not be e9cluded because the

defense counsel did not object to his testimony despite the fact that the prosecutor forgot to state its purpose or oer it in evidence. @oreover, the defense counsel thoroughly cross- e9amined N and thus waived the objection. b8 %he res inter %lios %ct% rule does not apply because N testi;ed in open court and was subjected to cross e9amination. *ffer of vidence" %estimonial - 8ocumentary (199?)

3hat is the dierence between an oer of testimonial evidence and an oer of documentary evidence5 SUGGESTED ANSWER4

An oer of testimonial evidence is made at the time the witness is called to testify, while an oer of documentary evidence is made after the presentation of a partyLs testimonial evidence. (Sec. 3, Rule 132).

*inion ule (199?) At 'olanLs trial for possession and use of the prohibited drug, 2nown as TshabuO, his girlfriend 4im, testi;ed that on a particular day, he would see 'olan very prim and proper, alert and sharp, but that three days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. 'olan objects to the admissibility of 4imLs testimony on the ground that 4im merely stated her opinion without having been ;rst ?uali;ed as e9pert witness.

!hould you, as judge, e9clude the testimony of 4im5 Version 1997-2006 !dated "#

Dondee

but that if /edro is willing, he may, upon re?uest of ucio give the latter up to 7F days to pay the note. During the hearing, /edro testi;ed that the truth is that the agreement between him and ucio is for the latter to pay immediately after ninety dayLs time. Also, since the original note was with ucio and the latter would not surrender to /edro the original note which ucio 2ept in a place about one dayLs trip from where he received the notice to produce the note and in spite of such notice to produce the same within si9 hours from receipt of such notice, ucio failed to do so. /edro presented a copy of the note which was e9ecuted at the same time as the original and with identical contents. a8 #ver the objection of ucio, will /edro be allowed to testify as to the true agreement or contents of the promissory note5 3hy5 67+8

b8 #ver the objection of ucio, can /edro present a copy of the promissory note and have it admitted as valid evidence in his favor5 3hy5 6*+8 SUGGESTED ANSWER4

a8 Nes, because /edro has alleged in his complaint that the promissory note does not e9press the true intent and agreement of the parties. %his is an e9ception to the parol evidence rule. [Sec. 9(b) of Rule 13, Rules of Court]

b8 Nes, the copy in the possession of /edro is a duplicate original and with identical contents. @oreover, the failure of ucio to produce

[Sec. 4(b) of Rule 13]. Remedial Law Bar Examination Q & A (1997-2006) SUGGESTED ANSWER4

'o. %he testimony of 4im should not be e9cluded. "ven though 4im is not an e9pert witness, 4im may testify on her impressions of the emotion, behavior, condition or appearance of a person. (Sec. , l%st 8%r., Rule 13).

Parol vidence ule ('1) /edro ;led a complaint against ucio for the recovery of a sum of money based on a promissory note e9ecuted by ucio. &n his complaint, /edro alleged that although the promissory note says that it is payable within 7F days, the truth is that the note is payable immediately after HF days

the original of the note is e9cusable because he was not given reasonable notice, as re?uirement under the 0ules before secondary evidence may be presented. (Sec.  of Rule 13, Rules of Court)

=ote> The pro!""or# $o%e !" &$ &'%!o$&()e *o'+e$% &$* %he or!,!$&) or & 'op# %hereo- "ho+)* h&e (ee$ &%%&'he* %o %he 'op)&!$%. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). I$ "+'h & '&"e/ %he ,e$+!$e$e"" &$* *+e e0e'+%!o$ o- %he $o%e/ !$o% *e$!e* +$*er o&%h/ o+)* (e *eee* &*!%%e*. (Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)

Preonderance vs. Substantial vidence (')

Distinguish preponderance of evidence from substantial evidence. >+ SUGGESTED ANSWER4


Page 58 of

66 /0"/#'D"0A'C" #$ "&D"'C" means that the evidence as a whole adduced by one side is superior to that of the other. %his is applicable in civil cases. (Sec. & of ule &; Munici$alit of Monca#a v. CaAuigan, 2& Phil, &/' F&9&2D! .

!B!%A'%&A "&D"'C" is that amount of relevant evidence which a reasonable mind might accept as ade?uate to justify a conclusion. %his is applicable in case ;led before administrative or ?uasi- judicial bodies. (Sec.  of Rule 133)

Privilege Communication (199!)

C is the child of the spouses : and 3. : sued his wife 3 for judicial declaration of nullity of marriage under Article *K of the $amily Code. &n the trial, the following testi;ed over the objection of 3O C, : and D, a doctor of medicine who used to treat 3. 0ule on 3Js objections which are the followingO .: cannot testify against her because of the rule on marital privilegeI )+ 7.C cannot testify against her because of the doctrine on parental privilegeI and )7+ *.D cannot testify against her because of the doctrine of privileged communication between patient and physician. )7+ SUGGESTED ANSWER4

. %he rule of marital privilege cannot be invo2ed in the annulment case under 0ule *K of the $amily Code because it is a civil case ;led by one against the other, (Sec. 22 , Rule 13. Rules of Court.)

7. %he doctrine of parental privilege cannot li2ewise be invo2ed by 3 as against the testimony of C, their child. C may not be compelled to testify but is (Sec. 2. free to testify against her. Rule 13. Rules of Co"e.)

Court; -rt. 21, #%mil$

*. D, as a doctor who used to treat 3, is dis?uali;ed to testify against 3 over her objection as to any advice or treatment given by him or any information which he may have ac?uired in his professional capacity. (Sec. 24 [c], Rule 13. Rules of Court.) ALTERNATI3E ANSWER4

&f the doctorJs testimony is pursuant to the re?uirement of establishing the psychological incapacity of 3, and he is the e9pert called upon to testify for the purpose, then it should be allowed. (e$u3lic vs. Court of )$$eals an# Molina, 26S SC) &9/.!

Privilege Communication" :arital Privilege (19!9) #dy sued spouses Cesar and Baby for a sum of money and damages. At the trial, #dy called Baby as his ;rst witness. Baby objected, joined by Cesar, on the ground that she may not be compelled to testify against her husband. #dy insisted and contended that after all, she would just be ?uestioned about a conference they had with the barangay captain, a Version 1997-2006 !dated "#

Dondee


matter which is not con;dential in nature. %he trial court ruled in favor of #dy. 3as the ruling proper5 3ill your answer be the same if the matters to be testi;ed on were 2nown to Baby or ac?uired by her prior to her marriage to Cesar5 "9plain. SUGGESTED ANSWER4

'o. nder the 0ules on "vidence, a wife cannot be e9amined for or against her husband without his consent, e9cept in civil cases by one against the other, or in a criminal case for a crime committed by one against the other. !ince the case was ;led by #dy against the spouses Cesar and Baby, Baby cannot be compelled to testify for or against Cesar without his consent. (8eaa vs. o#rigue, 2 SC)

Rule 13). %he case falls under this e9ception because !elma is the direct descendant of the spouse ide.

22,

6b8 'o. %he marital dis?uali;cation rule applies this time. %he e9ception provided by the rules is in a civil case by one spouse against the other. %he case here involves a case by !elmo for the recovery of personal property against idaLs spouse, 0omeo. Privilege Communication" :arital Privilege ('?) RNS, an alien, was criminally charged of promoting and facilitating child prostitution and other se9ual abuses under 0ep. Act 'o. EKF. %he principal witness against him was his $ilipina wife, ABC. "arlier, she had complained that RNSJs hotel was

&&66!.

%he answer would be the same if the matters to be testi;ed on were 2nown to Baby or ac?uired by her prior to her marriage to Cesar, because the marital dis?uali;cation rule may be invo2ed with respect to testimony on any fact. &t is immaterial whether such matters were 2nown to Baby before or after her marriage to Cesar. Privilege Communication" :arital Privilege (')

ida and 0omeo are legally married. 0omeo is charged to court with the crime of serious physical injuries committed against !elmo, son of ida, stepson of 0omeo. ida witnessed the in=iction of the injuries on !elmo by 0omeo. %he public prosecutor called ida to the witness stand and oered her testimony as an eyewitness. Counsel for 0omeo objected on the ground of the marital dis?uali;cation rule under the 0ules of Court. a8 &s the objection valid5 6*+8 b8 3ill your answer be the same if idaLs testimony is oered in a civil case for recovery of personal property ;led by !elmo against 0omeo5 67+8 SUGGESTED ANSWER4

6a8 'o. 3hile neither the husband nor the wife may testify for or against the other without the consent of the aected spouse, one e9ception is if the testimony of the spouse is in a criminal case for a crime committed by one against the other or the latterLs direct descendants or ascendants. (Sec,

(Sec. 22, Rule

(r#ono v. a?uigan, 62


Page 59 of 66

being used as a center for se9 tourism and child traic2ing. %he defense counsel for RNS objected to the testimony of ABC

at the trial of the child

prostitution case and the introduction of the aidavits she e9ecuted against her husband as a violation of espousal con;dentiality and marital privilege rule. &t turned out that D"$, the minor daughter of ABC by her ;rst husband who was a $ilipino, was molested by RNS earlier. %hus, ABC had ;led for legal separation from RNS since last year. @ay the court admit the testimony and aidavits of the wife, ABC, against her husband, RNS, in the criminal case involving child prostitution5 0eason. 6<+8 SUGGESTED ANSWER4

Nes. %he court may admit the testimony and aidavits of the wife against her husband in the criminal case where it involves child prostitution of the wifeJs daughter. &t is not covered by the marital privilege rule. #ne e9ception thereof is where the crime is committed by one against the other or the latterJs direct descendants or ascendants. 13). A crime by the husband against the daughter is a crime against the wife and directly attac2s or vitally

impairs the conjugal relation. SC) 270 F&97*D!.

Privilege Communication" :arital Privilege ('+) eticia was estranged from her husband /aul for more than a year due to his suspicion that she was having an aair with @anuel their neighbor. !he was temporarily living with her sister in /asig City. $or un2nown reasons, the house of eticiaJs sister was burned, 2illing the latter. eticia survived. !he saw her husband in the vicinity during the incident. ater he was charged with arson in an &nformation ;led with the 0egional %rial Court, /asig City. During the trial, the prosecutor called eticia to the witness stand and oered her testimony to prove that her husband committed arson. Can eticia testify over the objection of her husband on the ground of marital privilege5 6<+8 ALTERNATI3E ANSWER4

'o, eticia cannot testify over the objection of her husband, not under marital privilege which is inapplicable and which can be waived, but she would be barred under !ec. 77 of 0ule *F, which prohibits her from testifying and which cannot be waived ()lvare v. aire, ".. %o. &''9, cto3er &', 200*!. ALTERNATI3E ANSWER4

Nes, eticia may testify over the objection of her husband. %he dis?uali;cation of a witness by reason of marriage under !ec. 77, 0ule *F of the 0evised 0ules of Court has its e9ceptions as where the marital relations are so strained that there is no more harmony to be preserved. %he acts of /aul eradicate all major aspects of marital life. #n the other hand, the !tate has an interest in punishing the guilty and Version 1997-2006 !dated "#

Dondee


e9onerating the innocent, and must have the right to oer the testimony of eticia over the objection of her husband ()lvare v. aire, ".. %o. &''9,

cto3er &', 200*!.

emedy" 0ost 8ocuments" Secondary vidence (199') Aja9 /ower Corporation, a utility company, sued in the 0%C to enforce a supposed right of way over a property owned by !implicio. At the ensuing trial, Aja9 presented its retired ;eld auditor who testi;ed that he 2now for a fact that a certain sum of money was periodically paid to !implicio for some time as consideration for a right of way pursuant to a written contract. %he original contract was not presented. &nstead, a purported copy, identi;ed by the retired ;eld auditor as such, was formally oered as part of his testimony. 0ejected by the trial court, it was ;nally made the subject of an oer of proof by Aja9.

Can Aja9 validly claim that it had suiciently met its burden of proving the e9istence of the contract establishing its right of way5 "9plain, SUGGESTED ANSWER4

'o. Aja9 had not suiciently met the burden of proving the e9istence of the written contract because. &t had not laid the basis for the admission of a purported copy thereof as secondary evidence. Aja9 should have ;rst proven the e9ecution of the original document and its loss or destruction. (Sec.  of Rule 13) %estimony" ndeendent elevant Statement (1999)

A overheard B call R a thief. &n an action for defamation ;led by R against B, is the testimony of A oered to prove the fact of utterance i.e., that B called R a thief, admissible in evidence5 "9plain. 67+8 SUGGESTED ANSWER4

Nes. %he testimony of A who overheard B call R a thief is admissible in evidence as an independently relevant statement. &t is oered in evidence only to prove the tenor thereof, not to prove the truth of the facts asserted therein. &ndependently relevant statements include statements which are on the very facts in issue or those which are circumstantial evidence thereof. %he hearsay rule does not apply. (See Peo$le vs. "a##i, &70 SC) 6'9!

itness" Cometency of t,e itness vs. Credibility of t,e itness ('?)

Distinguish Competency of the witness and credibility of the witness. SUGGESTED ANSWER4

Competency of the witness refers to a witness who can perceive, and perceiving, can ma2e 2nown his perception to others (Sec. 2 of Rule 13), while credibility of the witness refers to a witness whose testimony is believable.


Page 60 of

66 itness" ;amination of a C,ild itness" via 0ive$ 0in@ %5 (')

3hen may the trial court order that the testimony of a child be ta2en by live-lin2 television5 "9plain. SUGGESTED ANSWER4

%he testimony of a child may be ta2en by live-lin2 television if there is a substantial li2elihood that the child would suer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. %he trauma must of a 2ind which would impair the completeness or truthfulness of the testimony of the child. (See Sec. 2, Rule on D%min%tion

evidence. Can he recall a witness5 SUGGESTED ANSWER4

6a8Nes, on redirect e9amination, ?uestions on matters not dealt with during the crosse9amination may be allowed by the court in its discretion. (Sec. 7 of Rule 132). 6b8 Nes, the opponent in his re-crosse9amination may also as2 ?uestions on such other matters as may

be allowed by the court in its discretion. (Sec. *. Rule 132). 6c8 Nes, after formally submitting his evidence, the plainti can recall a witness with leave of court. %he court may grant or withhold leave in its discretion as the interests of justice may re?uire. (Sec. 9. Rule 132).

of % C0il" Eitness).

itness" ;amination of itnesses ('') itness" ;amination of itnesses (1997)

a8 Aside from as2ing a witness to e9plain and supplement his answer in the cross-e9amination, can the proponent as2 in redirect e9amination ?uestions on matters not dealt with during cross- e9amination5 b8 Aside from as2ing the witness on matters stated in his re-direct e9amination, can the opponent in his re-cross-e9amination as2 ?uestions on matters not dealt with during the re-direct5 c8 After plainti has formally submitted his evidence, he realiGed that he had forgotten to present what he considered an important

&s this ?uestion on direct e9amination objectionableO T3hat happened on (uly 7, HHHU5 3hy5 67+8 SUGGESTED ANSWER4

%he ?uestion is objectionable because it has no basis, unless before the ?uestion is as2ed the proper basis is laid. itness" EtiliDed as State itness" Procedure ('+)

As counsel of an accused charged with homicide, you are convinced that he can be utiliGed as a state witness. 3hat procedure will you ta2e5 67.<+8 SUGGESTED ANSWER4

As counsel of an accused charged with homicide, the procedure that can be followed for the accused to be utiliGed as a state witness is to as2 the /rosecutor to recommend that the accused be made a state witness. Version 1997-2006 !dated "#

Dondee


&t is the /rosecutor who must recommend and move for the acceptance of the accused as a state witness. %he accused may also apply under the 3itness /rotection /rogram.

SPECIAL PROCEEDINGS Cancellation or Correction" ntries Civil egistry (') :elen is the daughter of "liGa, a $ilipina, and %ony, a Chinese, who is married to another woman living in China. :er birth certi;cate indicates that :elen is the legitimate child of %ony and "liGa and that she is a Chinese citiGen. :elen wants her birth certi;cate corrected by changing her ;liation from PlegitimateP to PillegitimateP and her citiGenship from PChineseP to P$ilipinoP because her parents were not married. 3hat petition should :elen ;le and what procedural re?uirements must be observed5 "9plain. 6<+8 SUGGESTED ANSWER4

A petition to change the record of birth by changing the ;liation from PlegitimateP to PillegitimateP and petitionerJs citiGenship from PChineseP to P$ilipinoP because her parents were not married, does not involve a simple summary correction, which could otherwise be done under the authority of 0.A. 'o. HF>. A petition has to be ;led in a proceeding under 0ule F of the 0ules of Court, which has now been interpreted to be adversarial in nature. (e$u3lic v. =alencia, ".. %o. 82&/&, March *, &9/6! /rocedural re?uirements

includeO 6a8 ;ling a veri;ed petitionI 6b8 naming as parties all persons who have or claim any interest which would be aectedI 6c8 issuance of an order ;9ing the time and place of hearingI 6d8 giving reasonable notice to the parties named in the petitionI and 6e8 publication of the order once a wee2 for three consecutive see2s in a newspaper of general circulation. (Rule 1*, Rules of Court) sc,eat Proceedings ('')

!uppose the property of D was declared escheated on (uly , HHF in escheat proceedings brought by the !olicitor 1eneral. 'ow, R, who claims to be an heir of D, ;led an action to recover the escheated property. &s the action viable5 3hy5 67+8 SUGGESTED ANSWER4

'o, the action is not viable. %he action to recover escheated property must be ;led within ;ve years from (uly , HHF or be forever barred. (Rule 91, sec. 4). ;tra$/udicial Settlement of state (')

'estor died intestate in 7FF*, leaving no debts. :ow may his estate be settled by his heirs who are of legal age and have legal capacity5 "9plain. 67+8 SUGGESTED ANSWER4

&f the decedent left no will and no debts, and the heirs are all of age, the parties may, without securing letters of administration, divide the estate among themselves by means of a public instrument or by


Page 61 of 66

stipulation in a pending action for partition and shall ;le a bond with the register of deeds in an amount

e?uivalent to the of the personal value property involved as certi;ed to under oath by the parties concerned. %he fact of e9tra-judicial settlement shall be published in a newspaper of general circulation once a wee2 for three consecutive wee2s in the province. (Sec. 1, Rule 74, Rules of Court)

6abeas Corus (199)

0o9anne, a widow, ;led a petition for habeas corpus with the Court of Appeals against @ajor Amor who is allegedly detaining her -year old son Bong without authority of the law. After @ajor Amor had a ;led a return alleging the cause of detention of Bong, the Court of Appeals promulgated a resolution remanding the case to the 0%C for a full-blown trial due to the con=icting facts presented by the parties in their pleadings. &n directing the remand, the court of Appeals relied on !ec.H68, in relation to !ec. 7 of B/ 7H conferring upon said Court the authority to try and decide habeas corpus cases concurrently with the 0%Cs.

Did the Court of Appeals act

correctly in remanding the petition to the 0%C5 3hy5 SUGGESTED ANSWER4

'o, because while the CA has original jurisdiction over habeas corpus concurrent with the 0%Cs, it has no authority for remanding to the latter original actions ;led with the former. #n the contrary, the CA is speci;cally given the power to receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original jurisdiction. ALTERNATI3E ANSWER4

Nes, because there is no prohibition in the law against a superior court referring a case to a lower court having concurrent jurisdiction. %he !upreme Court has referred to the CA or the 0%C cases falling within their concurrent jurisdiction. 6abeas Corus (199!)

A was arrested on the strength of a warrant of arrest issued by the 0%C in connection with an &nformation for :omicide. 3, the live-in partner of A ;led a petition for habeas corpus against AJs jailer and police investigators with the Court of Appeals. . Does 3 have the personality to ;le the petition for habeas corpus5 )7+ 7. &s the petition tenable5 )*+ SUGGESTED ANSWER4

. Nes. 3, the live-in partner of A, has the personality to ;le the petition for habeas corpus because it may be ;led by Psome person in his behalf.P (Sec. 3. Rule 12. Rules of Court.) Version 1997-2006 !dated "#

Dondee


7. 'o. %he petition is not tenable because the warrant of arrest was issued by a court which had (urisdiction to issue it (Sec. 4, Rule 12 Rules of Court) 6abeas Corus (') 3idow A and her two children, both girls, aged  and 7 years old, reside in Angeles City, /ampanga. A leaves her two daughters in their house at night because she wor2s in a brothel as a prostitute. 0ealiGing the danger to the morals of these two girls, B, the father of the deceased husband of A, ;les a petition for habeas corpus against A for the custody of the girls in the $amily Court in Angeles City. &n said petition, B alleges that he is entitled to the custody of the two girls because their mother is living a disgraceful life. %he court issues the writ of habeas corpus. 3hen A learns of the petition and the writ, she brings her two children to Cebu City. At the e9pense of B the sheri of the said $amily Court goes to Cebu City and serves the writ on A. A ;les her comment on the petition raising the following defensesO

a8 %he enforcement of the writ of habeas corpus in Cebu City is illegalI and b8 B has no personality to institute the petition. K+ 0esolve the petition in the light of the above defenses of A. 6K+8 SUGGESTED ANSWER4

6a8 %he writ of habeas corpus issued by the $amily Court in Angeles City may not be legally enforced in Cebu City, because the writ is enforceable only within the judicial region to which the $amily Court belongs, unli2e the writ granted by the !upreme Court or Court of Appeals which is enforceable anywhere in the /hilippines. (Sec. 20 of ule on Custo# of Minors an# Krit of
6b8 B, the father of the deceased husband of A, has the personality to institute the petition for habeas corpus of the two minor girls, because the grandparent has the right of custody as against the mother A who is a prostitute. (Sectioins 2 %n" 13, /".)

ntestate Proceedings ('')

R ;led a claim in the intestate proceedings of D. DLs administrator denied liability and ;led a counterclaim against R. RLs claim was disallowed. 68 Does the probate court still have jurisdiction to allow the claim of DLs administrator by way of oset5 3hy5 67+8 678 !uppose DLs administrator did not allege any claim against R by way of oset, can DLs administrator prosecute the claim in an independent proceeding why 6*+8 SUGGESTED ANSWER4


Page 62 of

66 68 'o, because since the claim of R was disallowed, there is no amount against which to oset the claim of DLs administrator. 678 Nes, DLs administrator can prosecute the claim in an independent proceeding since the claim of R was disallowed. &f R had a valid claim and DLs administrator did not allege any claim against R by way of oset, his failure to do so would bar his claim forever. (Rule *, sec. 1).

be granted. %he assignment of the two lots to C was premature because the debts of the estate had not been fully paid. Fule 90, sec. &; ees v. Barretoatu, &9 SC) /*

(&967!D.

Judicial Settlement of state (')

!tate the rule on venue in judicial settlement of estate of deceased persons. 67+8 SUGGESTED ANSWER4

&f the decedent is an inhabitant of the /hilippines at the time ofJ his death, whether a citiGen or an alien, the venue shall be in the 0%C in the province in which he resides at the time of his death, not in the place where he used to live. (-ao v. Court of )$$eals,

".. %o. &2/&', Ma 29, 2002!

ntestate Proceedings" 8ebts of t,e state ('') A, B and C, the only heirs in DLs intestate proceedings, submitted a project of partition to the partition, two lots were assigned to C, who immediately entered into the possession of the lots. %hereafter, C died and proceedings for the settlement of his estate were ;led in the 0%CMueGon City. DLs administrator then ;led a motion in the probate court 60%C-@anila8, praying that one of the lots assigned to C in the project of partition be turned over to him to satisfy debts corresponding to CLs portion. %he motion was opposed by the administrator of CLs estate. :ow should the 0%C-@anila resolve the motion of DLs administrator5 "9plain. 6*+8 SUGGESTED ANSWER4

%he motion of DLs administrator should

&f he is an inhabitant, of a foreign country, the 0%C of any province or city in which he had estate shall be the venue. %he court ;rst ta2ing cogniGance of the case shall e9ercise jurisdiction to the e9clusion of all other courts. 3hen the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered and li?uidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. &f both spouses have died, the conjugal partnership shall be li?uidated in the testate or intestate proceedings of either. (Sees. & an# 2, ule 7, ules of Court!

Probate of 0ost ills (1999)

3hat are the re?uisites in order that a lost or destroyed 3ill may be allowed5 67+8 Version 1997-2006 !dated "#

Dondee

Probate of ill (') After uluJs death, her heirs brought her last will AJs 3ill was allowed by the Court. 'o appeal was ta2en from its to a lawyer to obtain their respective shares in allowance. %hereafter, N, who was the estate. %he lawyer prepared a deed of distributing uluJs estate in interested in the estate of A, partition accordance with the terms of her will. &s the act discovered that the 3ill was not genuine because AJs signature was of the lawyer correct5 3hy5 67+8 Remedial Law Bar Examination Q & A (1997-2006)

forged by R. A criminal action for forgery was instituted against R. @ay the due e9ecution of the 3ill be validly ?uestioned in such criminal action5 67+8 SUGGESTED ANSWER4

SUGGESTED ANSWER4

'o. 'o will, shall pass either real or personal estate unless it is proved and allowed in the proper court. (Sec. 1, Rule 7, Rules of Court)

Probate of ill ('+)

a. &n order that a lost or destroyed !ergio /unGalan, $ilipino,
b. 'o. %he allowance of the will from which no appeal was ta2en is conclusive as to its due e9ecution. (Sec. 1 of Rule 7.) Due e9ecution includes a ;nding that the will is genuine and not a forgery. Accordingly, the due e9ecution of the will cannot again be ?uestioned in a subse?uent proceeding, not even in a criminal action for forgery of the will. Probate of ill (') A, a resident of @alolos, Bulacan, died leaving an estate located in @anila, worth /7FF,FFF.FF. &n what court, ta2ing into consideration the nature of jurisdiction and of venue, should the probate proceeding on the estate of A be instituted5 6>+8 SUGGESTED ANSWER4

%he probate proceeding on the estate of A should be instituted in the @unicipal %rial Court of @alolos, Bulacan which has jurisdiction, because the estate is valued at /7FF,FFF.FF, and is the court of proper venue because A was a resident of @alolos at the time of his death. (Sec.  of BP &29 as aen#e# 3 )

769&; Sec. & of ule 7!.

Page 63 of 66 sound and disposing mind, e9ecuted a last will and


testament in "nglish, a language spo2en and written hi pro;cientl dispos hi esta by m y. :e ed of s te consisting of a parcel of land in @a2ati City and cash deposit at the City Ban2 in the sum of / *FF @illion. :e be?ueathed /
Cancio idal is obliged to ;le a petition for probate and for accepting or refusing the trust within the statutory period of 7F days under !ec. *, 0ule E<, 0ules of Court. Su$$osing the original co$ of the last will an# tes taent was lost, can Cancio co$el Susan to $ro #uce a co$ in her $ossession to 3e su3itte# to the $ro3ate court. (2H! SUGGESTED ANSWER4

Nes, Cancio can compel !usan to produce the copy in her possession. A person having custody

of the will is bound to deliver the same to the court of competent jurisdiction or to the e9ecutor, as provided in !ec. 7, 0ule E<, 0ules of Court. Can the $ro3ate court a$$oint the wi#ow as eecutor of the will (2H! SUGGESTED ANSWER4

Nes, the probate court can appoint the widow as e9ecutor of the will if the e9ecutor does not ?ualify, as when he is incompetent, refuses the trust, or fails to give bond (Sec. , Rule 7*, Rules of Court).

Can the wi#ow an# her chil#ren settle etraAu#iciall aong theselves the estate of the #ecease# (2H! SUGGESTED ANSWER4

'o, the widow and her children cannot settle the estate e9trajudicially because of the e9istence of the 3ill. 'o will shall pass either real or personal estate unless it is proved and allowed in the proper court (Sec. 1, Rule 7, Rules of Court).

Can the wi#ow an# her chil#ren initiate a se$arate $etition for $artition of the estate $en#ing the $ro3ate of the last will an# testaent 3 the court (2H! SUGGESTED ANSWER4

'o, the widow and her children cannot ;le a separate petition for partition pending the probate of the will. /artition is a mode of settlement of the estate (Sec. 1, Rule 7, Rules of Court). Probate of ill" :andatory =ature ('') Version 1997-2006 !dated "#

Dondee


3hat should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate5 "9plain. 67+8 SUGGESTED ANSWER4

&f a will is found in the course of intestate proceedings and it is submitted for probate, the intestate proceedings will be suspended until the will is probated. pon the probate of the will, the intestate proceedings will be terminated. (Rule *2, sec. 1).

Settlement of state ('1) %he rules on special proceedings ordinarily re?uire that the estate of the deceased should be judicially administered thru an administrator or e9ecutor.

3hat are the two e9ceptions to said re?uirements5 6<+8 SUGGESTED ANSWER4

%he two e9ceptions to the re?uirement areO 6a83here the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authoriGed for the purpose, the parties may without securing letters of administration, divide the estate among themselves by means of public instrument ;led in the oice of the register of deeds, or should they disagree, they may do so in an ordinary action of partition. &f there is only one heir, he may adjudicate to himself the entire estate by means of an aidavit ;led in the oice of the register of deeds. %he parties or the sole heir shall ;le simultaneously abound with the register of deeds, in an amount e?uivalent to the value of the personal property as certi;ed to under oath by the parties and conditioned upon the payment of any just claim that may be ;led later. %he fact of the e9trajudicial settlement or administration shall be published in a newspaper of general circulation in the province once a wee2 for three consecutive wee2s. (Sec. 1 of Rule 74, Rules of Court)

6b8 3henever the gross value of the estate of a deceased person, whether he died testate or intestate, does not e9ceed ten thousand pesos, and that fact is made to appear to the 0%C having jurisdiction or the estate by the petition of an interested person and upon hearing, which shall be

held not less than one 68 month nor more than three 6*8 months from the date of the last publication of a notice which shall be published once a wee2 for three consecutive wee2s in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an e9ecutor

or administrator, to settle the estate. (Sec. 2 of Rule 74, Rules of Court)

Settlement of state" Administrator (199!) A, claiming to be an illegitimate child of the deceased D, instituted an &ntestate proceeding to settle the estate of the latter. :e also prayed that he be


Page 64 of 66

appointed administrator of said estate. !, the surviving spouse, opposed the petition and AJs

application to be appointed the administrator on the ground that he was not the child of her deceased husband D. %he court, however, appointed A as the administrator of said estate. !ubse?uently, !, claiming to be the sole heir of D, e9ecuted an Aidavit of Adjudication, adjudicating unto herself the entire estate of her deceased husband D. ! then sold the entire estate to R. 3as the appointment of A as administrator proper5 )7+ 3as the action of ! in adjudicating the entire estate of her late husband to herself legal5 )*+ SUGGESTED ANSWER4

. Nes, unless it is shown that the court gravely- abused its discretion in appointing the illegitimate child as administrator, instead of the spouse. 3hile the spouse enjoys preference, it appears that the spouse has neglected to apply for letters of administration within thirty 6*F8 days from the death of the decedent. (Sec. 6, ule 7/, ules of Court;

"as$a, -r. vs. Court of )$$eals. 2/ SC) &6.! ALTERNATI3E ANSWER4

!, the surviving spouse, should have been appointed administratri9 of the estate, in as much as she enjoys ;rst preference in such appointment under the rules.

(Sec. (%) of Rule 7*, Rules of Court.) SUGGESTED ANSWER4

7. 'o. An aidavit of self-adjudication is allowed only if the aiant is the sole heir of the. deceased. (Sec. 1, Rule 74, Rules of Court). &n this case, A also claims to be an heir. @oreover, it is not legal because there is already a pending juridical proceeding for the settlement of the estate. 5enue" Secial Proceedings (1997)

1ive the proper venue for the following special proceedingsO a8 A petition to declare as escheated a parcel of land owned by a resident of the /hilippines who died intestate and without heirs or persons entitled to the property. b8 A petition for the appointment of an administrator over the land and building left by an American citiGen residing in California, who had been declared an incompetent by an American court. c8 A petition for the adoption of a minor residing in

/ampanga. SUGGESTED ANSWER4

6a8 %he venue of the escheat proceedings of a parcel of land in this case is the place where the deceased last resided. (Sec. 1. Rule 91, Rules of Court).

6b8 %he

venue

for

the

appointment

of an administrator over land and building of an American citiGen residing in California, declared &ncompetent Version 1997-2006 !dated "#

Dondee


&, 2000, citing -oven v. Court of )$$eals, 2&2 SC) 700, 70770/ (&992!, should be denied

by an American Court, is the 0%C of the place where his property or part thereof because the petition prohibited pleading. is situated. (Sec. 1. Rule 92). 6c8 %he venue of a petition for the adoption of a minor residing in /ampanga is the 0%C of the place in which the petitioner resides. (Sec. 1. Rule 99)

SUMMARY PROCEDURE Pro,ibited Pleadings ('?)

Charged with the oense of slight physical injuries under an information duly ;led with the @e%C in @anila which in the meantime had duly issued an order declaring that the case shall be governed by the 0evised 0ule on !ummary /rocedure, the accused ;led with said court a motion to ?uash on the sole ground that the oicer who ;led the information had no authority to do so. %he @e%C denied the motion on the ground that it is a prohibited motion under the said 0ule. %he accused thereupon ;led with the 0%C in @anila a petition for certiorari in sum assailing and see2ing the nulli;cation of the @e%CJs denial of his motion to ?uash. %he 0%C in due time issued an order denying due course to the certiorari petition on the ground that it is not allowed by the said 0ule. %he accused forthwith ;led with said 0%C a motion for reconsideration of its said order. %he 0%C in time denied said motion for reconsideration on the ground that the same is also a prohibited motion under the said 0ule. 3ere the 0%CJs orders denying due course to the petition as well as denying the motion for reconsideration correct5 0eason. 6<+8 SUGGESTED ANSWER4

%he 0%CJs orders denying due course to the petition for certiorari as well as denying the motion for reconsideration are both not correct. %he petition for certiorari is a prohibited pleading under !ection H6g8 of the 0evised 0ule on !ummary /rocedure and the motion for reconsideration, while it is not prohibited motion (8ucas v. a3ros, )M %o. M5-99&226, -anuar

for certiorari is a

MISCELLANEOUS Administrative Proceedings (') 0egional Director A1 of the Department of /ublic 3or2s and :ighways was charged with violation of !ection *6e8 of 0epublic Act 'o. *FH in the #ice of the #mbudsman. An administrative charge for gross misconduct arising from the transaction subject matter of said criminal case was ;led against him in the same oice. %he #mbudsman assigned a team

Page 65 of 66 composed of investigators from the #ice of the !pecial /rosecutor and from the #ice of the Deputy #mbudsman for the @ilitary to conduct a joint investigation of the criminal case and the administrative case. %he team of investigators recommended to the #mbudsman that A1 be preventively suspended for a period not e9ceeding si9 months on its ;nding that the evidence of guilt is strong. %he #mbudsman issued the said order as recommended by the investigators.


A1 moved to reconsider the order on the following groundsO 6a8 the #ice of the !pecial /rosecutor had e9clusive authority to conduct a preliminary investigation of the criminal caseI 6b8 the order for his preventive suspension was premature because he had yet to ;le his answer to the administrative complaint and submit countervailing evidenceI and 6c8 he was a career e9ecutive service oicer and under /residential Decree 'o. FE 6Civil !ervice aw8, his preventive suspension shall be for a ma9imum period of three months. 0esolve with reasons the motion of respondent A1. 6<+8 SUGGESTED ANSWER4

%he motion should be denied for the following reasonsO . %he #ice of the !pecial /rosecutor does not have

e9clusive authority to conduct a preliminary investigation of the criminal case but it participated in the investigation together with the Deputy #mbudsman for the @ilitary who can handle cases of civilians and is not limited to the military. 7. %he

order of preventive suspension need not wait for the answer to the administrative complaint and the submission of countervailing evidence.

6%rci% . :o@ic%, .R. 'o. 1393, Se8tember 1, 1999) &n B%s>ueF c%se, .R. 'o. 11*1, -8ril , 199, the court ruled that preventive suspension pursuant to !ec. 7> of 0.A. 'o. KEEF 6#mbudsman Act of HH8, shall continue until termination of the case but shall not e9ceed si9 6K8 months, e9cept in relation to 0.A. 'o, *FH and /.D. 'o. FE. As a career e9ecutive oicer, his preventive suspension under the Civil !ervice aw may only be for a ma9imum period of three months. %he period of the suspension under the Anti-1raft aw shall be the same pursuant to the v. e?ual protection clause. ("arcia MoAica,

".. %o.

&90, Se$te3er &0, &999; 8ano v. San#igan3aan, ".. %o. 86*/'/, Ma 2&, &9/*!

Congress" 0a2 ;roriating Proerty ('+) @ay Congress enact a law providing that a <, FFF s?uare meter lot, a part of the !% compound in !ampaloc @anila, be e9propriated for the construction of a par2 in honor of former City @ayor Arsenic acson5 As compensation to !%, the City Version 1997-2006 !dated "#

Dondee


Page 66 of 66 decree or e9ecutive order can mandate that the

of by: [email protected]

@anila shall deliver its <-hectare lot in !ta. 0osa, aguna originally intended as a residential subdivision for the @anila City :all employees. "9plain. 6<+8 SUGGESTED ANSWER4

Nes, Congress may enact a law e9propriating property provided that it is for public use and with just compensation. &n this case, the construction of a par2 is for public use (See Sena v. Manila ailroa# Co., ".. %o. &*9&*, Se$te3er 7, &92&; ees v. %<), " %o. &'7*&&, March 2', 200!.

%he planned compensation, however, is not legally tenable as the determination of just compensation is a judicial function. 'o statute,

determination of just compensation by the e9ecutive or legislative departments can prevail over the courtJs ;ndings (4$ort Processing Gone )uthorit v. ula, ".. %o. 8*960, )$ril 29,&9/7; Sees. * to / ule 67,&997 ules of Civil Proce#ure!. &n

addition, compensation must be paid in money (4ste3an v. norio, ).M. %o. 00'&665C, -une 29, 200&!.

.

A 19" :andatory Susension ('1)

1overnor /edro @ario of %arlac was charged with indirect bribery before the !andiganbayan for accepting a car in e9change of the award of a series of contracts for medical supplies. %he !andiganbayan, after going over the information, found the same to be valid and ordered the suspension of @ario. %he latter contested the suspension claiming that under the law 6!ec. * of 0.A. *FH8 his suspension is not automatic upon the ;ling of the information and his suspension under !ec. *, 0.A. *FH is in con=ict with !ec. < of the DecentraliGation Act of HKE 60.A. <<8. %he !andilganbayan overruled @arioLs contention stating that @arioLs suspension under the circumstances is mandatory. &s the courtLs ruling correct5 3hy5 SUGGESTED ANSWER4

Nes. @arioLs suspension is mandatory, although not automatic, (Sec. 13 of R.-. 'o. 319 in rel%tion to Sec.  of t0e &ecentr%liF%tion -ct of 197 (R.-. 'o. 1*). &t is mandatory after the determination of the validity of the information in a pre- suspension hearing. FSegovia v. San#igan3aan, 2// SC) 2/ (&9//!D. %he purpose of suspension is to prevent the accused public oicer from frustrating or hampering his prosecution by intimidating or in=uencing witnesses or tampering with evidence or from committing further acts of malfeasance while in oice.

Remedial Law Q n A

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