2009 BAR EXAMINATION

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.

The Vallejo standard refers to jurisprudential norms considered by the

court in assessing the probative value of DNA evidence.

TRUE. In People vs. Vallejo, 382 SCRA 192 (2002), it was held that in assessing
the probative value of DNA evidence, courts should consider, among others things, the
following data: how the samples were collected, how they were handled, the possibility
of contamination of the samples, the procedure followed in analyzing the samples,
whether the proper standards and procedures were followed in conducting the tests,
and the qualification of the analyst who conducted the tests.

The One-Day Examination of Witness Rule abbreviates court proceedings

by having a witness fully examined in only one day during trial.

TRUE. Par. 5(i) of Supreme Court A.M. No. 03-1-09-SC requires that a witness
has to be fully examined in one (1) day only. This rule shall be strictly adhered to
subject to the courts’ discretion during trial on whether or not to extend the direct
and/or cross-examination for justifiable reasons. On the last hearing day allotted for
each party, he is required to make his formal offer of evidence after the presentation of
his last witness and the opposing party is required to immediately interpose his
objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence
in open court. However, the judge has the discretion to allow the offer of evidence in
writing in conformity with Section 35, Rule 132.

Alternative Answer

FALSE. This rule is not absolute: it will still allows the trial judge the discretion
whether to extend the direct and/or cross examination for justifiable reasons or not.
The exercise of this discretion may still result in wrangling as to the proper exercise of
the trial court’s discretion, which can delay the proceedings.

A suit for injunction is an action in rem.

FALSE. A suit for injunction is an action in personam. In the early case of

Auyong Hian vs. Court of Tax Appeals (59 SCRA 110 [1974]), it was held that a
restraining order, like an injunction, operates upon a person. It is granted in the
exercise of equity jurisdiction and has no in rem effect to invalidate an act done in
contempt of an order of the court except where by statutory authorization, the decree
is so framed as to act in rem on property. (Air Material Wing Savings and Loan
Association, Inc. vs. Manay, 535 SCRA 356 [2007]).

Under the doctrine of adoptive admission, a third party’s statement

becomes the admission of the party embracing or espousing it.
 TRUE. The effect or consequence of the admission will bind also the party who
adopted or espoused the same, as applied in Estrada vs. Desierto, 356 SCRA 108
[2001]). An adoptive admission is a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s reaction as an admission of
something stated or implied by the other person.

Summons may be served by mail.

FALSE. Rule 14 of the Rules of Court, on Summons, provided only for serving
Summons (a) to the defendant in person; or (b) if this is not possible within a
reasonable time, then by substituted service in accordance with Sec. 7 thereof; or (c) if
any of the foregoing two ways is not possible, then with leave of court, by publication
in accordance with same Rule.

Alternative Answer

TRUE, but only in extraterritorial service under Sec. 15 of the Rule on

Summons where service may be effected “in any other manner the court may deem
sufficient”.

Angelina sued Armando before the Regional Trial Court (RTC) of Manila to
recover the ownership and possession of two parcels of land; one situated in
Pampanga, and the other in Bulacan.

May the action prosper? Explain.

NO, the action may not proper, because under Rep. Act No. 7691, exclusive
original jurisdiction in civil actions which involve title to, or possession of real property
or any interest therein is determined on the basis of the assessed value of the land
involved, whether it should be P20,000 in the rest of the Philippines, outside of the
Manila with courts of the first level or with the Regional Trial Court. The assessed
value of the parcel of land in Pampanga is different from the assessed value of the land
in Bulacan. What is involved is not merely a matter of venue, which is waivable, but of
a matter of jurisdiction. However, the action may prosper if jurisdiction is not in issue,
because venue can be waived.

Alternative Answer

YES, if the defendant would not file a motion to dismiss on ground of improper
venue and the parties proceeded to trial.

Will your answer be the same if the action was for foreclosure of the
mortgage over the two parcels of land? Why or why not?

NO, the answer would not be the same. The foreclosure action should be
brought in the proper court of the province where the land or any part thereof is
situated, either in Pampanga or in Bulacan. Only one foreclosure action need be filed
unless each parcel of land is covered by distinct mortgage contract.

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 In foreclosure suit, the cause of action is for the violation of the terms and
conditions of the mortgage contract; hence, one foreclosure suit per mortgage contract
violated is necessary.

Amorsolo, a Filipino citizen permanently residing in New York Cirt, filed

with the RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land
against Brigodo, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The
subject property, located in Barangay Talisay, Lipa City, has an assessed value of
P19,700.00 Appended to the complaint is Amorsolo’s verification and
certification of non-forum shopping executed in New York City, duly notarized
by Mr. Joseph Brown, Esq., a notary public in the State of New York. Brigodo
filed a motion to dismiss the complaint on the following grounds:

The court cannot acquire jurisdiction over the person of Amorsolo because
he is not a resident of the Philippines;

The first ground raised lacks merit because jurisdiction over the person of a
plaintiff is acquired by the court upon the filing of plaintiff’s complaint therewith.
Residency or citizenship is not a requirement for filing a complaint, because plaintiff
thereby submits to the jurisdiction of the court.

The RTC does not have jurisdiction over the subject matter of the action
involving real property with an assessed value of P19,700.00; exclusive and
original jurisdiction is with the Municipal Trial Court where the defendant
resides;

The second ground raised is also without merit because the subject of the
litigation, Rescission of Contract, is incapable of pecuniary estimation the exclusive
original jurisdiction to which is vested by law in the Regional Trial Courts. The nature
of the action renders the assessed value of the land involved irrelevant.

The verification and certification of non-forum shopping are fatally

defective because there is no accompanying certification issued by the
Philippine Consulate New York, authenticating that Mr. Brown is duly authorized
to notarize the document. Rule on the foregoing grounds with reasons.

The third ground raised questioning the validity of the verification and
certification of non-forum shopping for lack of certification from the Philippine
Consulate in New York, authenticating that Mr. Brown is duly authorize to notarize
the document, is likewise without merit. The required certification alluded to, pertains
to official acts, or records of official bodies, tribunals, and public officers, whether of
the Philippines or of a foreign country: the requirement in Sec. 24, Rule 132 of the
1997 Rules refers only to paragraph (a) of Sec. 29 which does not cover notarial
documents. It is enough that the notary public who notarized the verification and
certification of non-forum shopping is clothed with authority to administer oath in
that State or foreign country.

Pedrito and Tomas, mayor and Treasurer, respectively, of the

Municipality of San Miguel, Leyte, are charged before the Sandiganbayan for
violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt

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Practices Act). The information alleges, among others, that the two conspired in
the purchase of several units of computer through personal canvass instead of a
public bidding, causing undue injury to the municipality.

Before the arraignment, the accused moved for reinvestigation of the

charge, which the court granted. After reinvestigation, the Office of the Special
Prosecutor filed an amended information duly signed and approved by the
Special Prosecutor, alleging the same delictual facts, but with an additional
allegation that the accused gave unwarranted benefits to SB Enterprises owned
by Samuel. Samuel was also indicted under the amended information. Before
Samuel was arraigned, he moved to quash the amended information on the
ground that the officer who filed the same had no authority to do so. Resolve the
motion to quash with reasons.

The motion to quash filed by Samuel should be granted.

There is no showing that the special prosecutor was duly authorized or

deputized to prosecute Samuel. Under R.A. No. 6770, also known as the Ombudsman
Act of 1989, the Special Prosecutor has the power and authority, under the
supervision and control of the Ombudsman, to cases before the Sandiganbayan and
perform such other duties assigned to him by the Ombudsman (Calingin vs. Desierto,
529 SCRA 720 [2007]).

Absent a clear delegation of authority from the Ombudsman to the Special

Prosecutor to file the information, the latter would have no authority to file the same.
The Special Prosecutor cannot be considered an alter ego of the Ombudsman as the
doctrine of qualified political agency does not apply to the Office of the Ombudsman.
In fact, the powers of the Office of the Special prosecutor under the law may be
exercised only under the supervision and control and upon the authority of the
Ombudsman (Perez vs. Sandiganbayan, 503 SCRA 252 [2006]).

Alternative Answer

The motion to quash should be denied for lack of merit. The case is already filed
in court which must have the Special Prosecutor’s Office of the Ombudsman takes
over. As it is the court which ordered the reinvestigation, the Office of the Special
Prosecutor which is handling the case in court, has the authority to act and when
warranted, refile the case. The amendment made is only a matter of fro which only
particularized the violation of the same provision of Rep. Act 3019, as amended.

Frank and Gina were married n June 12, 1987 in Manila. Barely a year
after the wedding, Frank exhibited a violent temperament, forcing Gina, for
reasons of personal safety, to live with her parents. A year thereafter, Gina found
employment as a domestic helper in Singapore, where she worked for ten
consecutive years. All the time she was abroad, Gina had absolutely no
communications with Frank, nor did she hear any news about him. While in
Singapore, Gina met and fell in lone with Willie.

On July 4, 2001, Gina filed a petition with the RTC of Manila to declare
Frank presumptively dead, so that she could marry Willie. The RTC granted

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Gina’s petition. The Office of the Solicitor General (OSG) filed a Notice of Appeal
with the RTC, stating that it was appealing the decision to the Court of Appeals
on questions of fact and law.

Is a petition for Declaration of Presumptive Death a special proceeding?

Why or why not?

NO. The petition for Declaration of Presumptive Death provided in Art. 41 of the
“Family Code” is not the special proceeding governing absentees under Rule 107 of the
Rules of Court whose rules of procedure will not be followed (Republic vs. CA, 458
SCRA [2005]). Said petition for Declaration of Presumptive Death under Article 41 of
the Family Code is a summary proceeding, authorized for purposes only of remarriage
of the present spouse, to avoid incurring the crime of bigamy. Nonetheless, it is in the
nature of a special proceeding, being an application to establish a status or a
particular fact in court.

Alternative Answer

A petition for declaration of presumptive death may be considered a special

proceedings, because it is so classified in the Rules of Court (Rule 107, Rules of
Court), as differentiated from an ordinary action which is adversarial. It is a mere
application or proceeding to establish the status of a party or a particular fact, to viz:
that a person has been unheard of for a long time and under such circumstances that
he may be presumed dead.

As the RTC judge who granted Gina’s petition, will you give due course to
the OSG’s Notice of Appeal? Explain.

No. Appeal is not a proper remedy since the decision is immediately final and
executor upon notice to the parties under Art. 247 of the Family Code (Republic vs.
Bermudes-Lorino, 449 SCRA 57 [2005]). The OSG may assail RTC’s grant of the
petition only on the premise of grave abuse of discretion amounting to lack or execess
of jurisdiction. The remedy should be by certiorari under Rule 65 of the Rules of
Court.

Arrested in a buy-bust operation, Edmond was brought to the police

station where he was informed of his constitutional rights. During the
investigation, Edmond refused to give any statement. However, the arresting
officer asked Edmond to acknowledge in writing that six (6) sachets of “shabu”
were confiscated from him. Edmond consented and also signed a receipt for the
amount of P3,000.00, allegedly representing the “purchase price of the shabu.”
At the trial, the arresting officer testified and identified the documents executed
and signed by Edmond. Edmond’s lawyer did not object to the testimony. After
the presentation of the testimonial evidence, the prosecutor made a formal offer
of evidence which included the documents signed by Edmond.

Edmond’s lawyer objected to the admissibility of the documents for being

the “fruit of the poisoned tree.” Resolve the objection with reasons.

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 The objection to the admissibility of the documents which the arresting officer
asked Edmond to sign without the benefit of counsel, is well-taken. Said documents
having signed by the accused while under custodial investigation, imply an
“admission” without the benefit of counsel, that the shabu came from him and that
the P3,000.00 was received by him pursuant to the illegal selling of the drugs. Thus, it
was obtained by the arresting officer in clear violation of Sec. 12(3), Art. III of the 1987
Constitution, particularly the right to be assisted by counsel during custodial
investigation.

Moreover, the objection to the admissibility of the evidence was timely made,
i.e., when the same is formally offered.

Cresencio sued Dioscoro for collection of a sum of money. During the trial,
but after the presentation of plaintiff’s evidence, Dioscoro died. Atty. Cruz,
Dioscoro’s counsel, then filed a motion to dismiss the action on the ground of
his client’s death. The court denied the motion to dismiss and, instead, directed
counsel to furnish the court with the names and addresses of Dioscoro’s heirs
and ordered that the designated administrator of Dioscoro’s estate be
substituted as representative party.

After trial, the court rendered judgment in favor of Cresencio. When the
decision has become final and executor, Cresencio moved for the issuance of a
writ of execution against Dioscoro’s estate to enforce his judgment claim. The
court issued the writ of execution. Was the court’s issuance of the writ of
execution proper? Explain.

NO, the trial court’s issuing the writ of execution is not proper and in excess of
jurisdiction, since the judgment obligor is already dead when the writ was issued. The
judgment for money may only be enforced against the estate of the deceased defendant
in the probate proceedings, by way of a claim filed with the probate court in
accordance with Rule 86 of the Rules of Court.

Cresencio should enforce that judgment in his favor in the settlement

proceedings of the estate of Dioscoro as a money claim in accordance with Rule 86 or
Rule 88 as the case may be.

On July 15, 2009, Atty. Manananggol was served copies of numerous

unfavorable judgments and orders. On July 29, 2009, he filed motions for
reconsideration which were denied. He received the notices of denial of the
motions for reconsideration on October 2, 2009, a Friday. He immediately
informed his clients who, in turn, uniformly instructed him to appeal. How,
when and where should he pursue the appropriate remedy for each of the
following:

Judgment of a Municipal Trial Court (MTC) pursuant to its delegated

jurisdiction dismissing his client’s application for land registration?

By notice of appeal, within 15 days from notice of judgment or final order

appealed from, to the Court of Appeals;

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 Judgment of the Regional Trial Court (RTC) denying his client’s petition
for a Writ of Habeas Data?

By verified petition for review on certiorari under Rule 45, with the modification
that appellant may raise questions of fact or law or both, with 5 work days from date
of notice of the judgment or final order to the Supreme Court (Sec. 19, A.M. No. 08-1-
16SC);

Order of a Family Court denying his client’s petition for Habeas Corpus in
relation to custody of a minor child?

By notice of appeal, within 48 hours from notice of judgment or final order to

the Court of Appeals (Sec. 14, RA No. 8369 in relation to Sec. 3, Rule 41, Rules of
Court).

Order of the RTC denying his client’s Petition for Certiorari questioning
the Metropolitan Trial Court’s (MeTC’s) denial of a motion to suspend criminal
proceedings.

By notice of appeal, within 15 days from notice of the final Order, to the Court
of Appeals (Magestrado vs. People, 527 SCRA 125 [2007]).

Judgment of the First Division of the Court of Tax Appeals (CTA) affirming
the RTC decision convicting his client for violation of the National Internal
Revenue Code?

By petition for review filed with the Court of Tax Appeals (CTA) en banc, within
30 days fro receipt of the decision or ruling in question (Sec. 9[b], Rule 9, Rev. Rules of
CTA).

Modesto sued Ernesto for a sum of money, claiming that the latter owed
him P1-million, evidenced by a promissory note, quoted and attached to the
complaint. In his answer with counterclaim, Ernesto alleged that Modesto
coerced him into signing the promissory note, but that it is Modesto who really
owes him P1.5-million. Modesto filed an answer to Ernesto’s counterclaim that
he owed Ernesto, but only in the amount of P0.5-million. At the pre-trial,
Modesto marked and identified Ernesto’s promissory note. He also marked and
identified receipts covering payments he made to Ernesto, to the extent of P0.5-
million, which Ernesto did not dispute. After pre-trial, Modesto filed a motion for
judgment on the pleadings, while Ernesto filed a motion for summary judgment
on his counterclaim. Resolve the two motions with reasons.

Modesto’s motion for judgment on the pleadings should be denied. While it is

true that under the actionable document rule, Ernesto’s failure to deny under oath the
promissory note in his answer amounted to an implied admission of its genuineness
and true execution, his allegation in his answer that he was coerced into signing the
promissory note tendered an issue which should be tried. The issue of coercion is not
inconsistent with the due execution and genuineness of the instrument. Thus,
Ernesto’s failure to deny the genuineness of the promissory note cannot be considered

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a waiver to raise the issue he was coerced in signing the same. Said claim of coercion
may also be proved as an exception to the Parol Evidence Rule.

On the other hand, Ernesto’s motion for summary judgment may be granted.
Modesto’s answer to Ernesto’s counterclaim – that he owed the latter a sum less than
what was claimed – amounted to an admission of a material fact and if the amount
thereof could summarily be proved by affidavits, deposition, etc., without the need of
going to trial, then no genuine issue of fact exists.

Modesto’s motion for judgment on the pleadings should be denied because

there is an issue of fact. While Ernesto did not specially deny under oath the
promissory note attached to Modesto’s complaint as an actionable document, such
non-denial will not bar Ernesto’s evidence that Modesto coerced him into signing the
promissory note. Lack of consideration, as a defense, does not relate to the
genuineness and due execution of the promissory note.

Likewise, Ernesto’s motion for summary judgment should be denied because

there is an issue of fact – the alleged coercion – raised by Ernesto which he has yet to
prove in a trial on its merits. It is axiomatic that summary judgment is not proper or
valid when there is an issue of fact remaining which requires a hearing. And this is so
with respect to the coercion alleged by Ernesto as his defense, since coercion is not
capable of being established by documentary evidence.

Upon termination of the pre-trial, the judge dictated the pretrial order in
the presence of the parties and their counsel, reciting what had transpired and
defining three (3) issues to be tried.

If, immediately upon receipt of his copy of the pre-trial order, plaintiff’s
counsel should move for its amendment to include a fourth (4 th) triable issue
which he allegedly inadvertently failed to mention when the judge dictated the
order. Should the motion to amend be granted? Reasons.

Depending on the merit of the issue sought to be brought in by amendment, the

motion to amend may be granted upon due hearing. It is a policy of the Rules that
parties should be afforded reasonable opportunity to bring about a complete
determination of the controversy between them, consistent with substantial justice.
With this end in view, the amendment before trial may be granted to prevent manifest
injustice. The matter is addresses to the sound and judicious discretion of the trial
court.

Suppose trial had already commenced and after the plaintiff’s second
witness had testified, the defendant’s counsel moves for the amendment of the
pre-trial order to include a fifth (5 th) triable issue vital to his client’s defense.
Should the motion be granted over the objection of plaintiff’s counsel? Reasons.

The motion may be denied since trial had already commenced and two
witnesses for the plaintiff had already testified. Courts are required to issue pre-trial
Order after the pre-trial conference has been terminated and before trial begins,
precisely because the reason for such Order is to define the course of the action

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during the trial. Where trial already commenced, more so the adverse party had
already presented witnesses, to allow an amendment would be unfair to the party had
already presented his witnesses. The amendment would simply render nugatory the
reason for or purpose of the pre-trial Order.

Sec. 7 of Rule 18 on pre-trial in civil actions is explicit in allowing a

modification of the pre-trial Order “before” trial begins to prevent manifest injustice.

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2) sentences.

The accused in a criminal case has the right to avail of the various modes
of discovery.

TRUE. The accused has the right to move for the production or inspection of
material evidence in the possession of the prosecution. It authorize the defense to
inspect, copy or photograph any evidence of the prosecution in its possession after
obtaining permission from the court (Rule 116, Sec. 10; Webb vs. De Leon, 247 SCRA
652 [1995]).

The viatory right of a witness served with a subpoena ad testificandum

refers to his right not to comply with the subpoena.

FALSE. The viatory right of a witness, embodied in Sec. 10, Rule 21 of the Rules
of Civil Procedure, refers to his right not to be compelled to attend upon a subpoena,
by reason of the distance from the residence of the witness to the place where he is to
testify. It is available only in civil cases (People vs. Montejo, 21 SCRA 722 [1965]).

In the exercise of its original jurisdiction, the Sandiganbayan may grant

petitions for the issuance of a writ of habeas corpus.

FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid
of its appellate jurisdiction (RA 7975, as amended by RA 8249), not in the exercise of
“original” jurisdiction.

An electronic document is the equivalent of an original document under

the Best Evidence Rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately.

TRUE. This statement is embodied in Sec. 1, Rule 4 of A.M. No. 01-7-01-SC, re:
Rules on Electronic Evidence.

The filing of a motion for the reconsideration of the trial court’s decision
results in the abandonment of a perfected appeal.

FALSE. The trial court has lost jurisdiction after perfection of the appeal and so
it can no longer entertain a motion for reconsideration.

FALSE, because the appeal may be perfected as to one party but not yet
perfected as to the other party who may still file a motion for reconsideration without

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abandonment of his right of appeal even though the appeal of the case is perfected
already as to the other party.

Mike was renting an apartment unit in the building owned by Jonathan.

When Mike failed to pay six months’ rent, Jonathan filed an ejectment suit. The
Municipal Trial Court (MTC) rendered judgment in favor of Jonathan, who then
filed a motion for the issuance of a writ of execution. The MTC issued the writ.

How can Mike stay the execution of the MTC judgment? Explain.

Execution shall issue immediately upon motion, unless Mike (a) perfects his
appeal to the RTC, (b) files a sufficient supersedeas bond to pay the rents, damages
and costs accruing up to the time of the judgment appealed from, and (c) deposits
monthly with the RTC during the pendency of the appeal the amount of rent due from
time to time (Rule 70, Sec. 19).

Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC
decision. Mike then filed a petition for review with the Court of Appeals (CA).
The CA dismissed the petition on the ground that the sheriff had already
executed the MTC decision and had ejected Mike from the premises, thus
rendering the appeal moot and academic. Is the CA correct? Reasons.

NO, the Court of Appeals is not correct. The dismissal of the appeal is wrong,
because the execution of the RTC judgment is only in respect of the eviction of the
defendant from the leased premises. Such execution pending appeal has no effect on
the merits of the ejectment suit which still has to be resolved in the pending appeal.
Rule 70, Sec. 21 of the Rules provides that the RTC judgment against the defendant
shall be immediately executor, “without prejudice to a further appeal” that may be
taken therefrom (Uy vs. Santiago, 336 SCRA 680 [2000]).

Continental Chemical Corporation (CCC) filed a complaint for a sum of

money against Barstow Trading Corporation (BTC) for the latter’s failure to pay
for its purchases of industrial chemicals. In its answer, BTC contended that it
refused to pay because CCC misrepresented that the products it sold belonged to
a new line, when in fact they were identical with CCC’s existing products. To
substantiate its defense, BTC filed a motion to compel CCC to give a detailed list
of the products’ ingredients and chemical components, relying on the right to
avail of the modes of discovery allowed under Rule 27. CCC objected, invoking
confidentially of the information sought by BTC.

Resolve BTC’s motion with reasons.

I will deny the motion. The ingredients and chemical components of CCC’s
products are trade secrets within the contemplation of the law. Trade secrets may not
be the subject of compulsory disclosure by reason of their confidential and privileged
character. Otherwise, CCC would eventually be exposed to unwarranted business
competition with others who may imitate and market the same kinds of products in
violation of CCC’s proprietary rights. Being privileged, the detailed list of ingredients
and chemical components may not be the subject of mode of discovery under Rule 27,

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Section 1 which expressly makes privileged information an exception from its coverage
(Air Philippines Corporation vs. Pennswell, Inc., 540 SCRA 215 [2007]).

Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence
of his sister, Carla. Carla brought Betty to the hospital. Outside the operating
room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty.
Betty died while undergoing emergency surgery. At the trial of the parricide
charges filed against Alberto, the prosecutor sought to present Domingo as
witness, to testify on what Carla told him. The defense counsel objected on the
ground that Domingo’s testimony is inadmissible for being hearsay. Rule on the
objection with reasons.

Objection overruled. The disclosure received by Domingo from Carla may be

regarded as independently relevant statement which is not covered by the hearsay
rule; hence admissible. The statement may be received not as evidence of the truth of
what was stated but only as to the tenor thereof and the occurrence when it was said,
independently of whether it was true of false. (People vs. Cloud, 333 Phil. 306 [1996];
People vs. Malibiran, et al., G.R. No. 178301, April 24, 2009)

Alternative Answer

Objection sustained. The disclosure made by Carla has no other probative value
except to identify who shot Betty. Its tenor is irrelevant to the incident, and the same
made not to a police investigator of the occurrence but to a nurse whose concern is
only to attend to the patient. Hence, the disclosure does not quality as independently
relevant statement and therefore, hearsay. The nurse is competent to testify only on
the condition of Betty when rushed to the hospital but not as to who caused the
injury. The prosecution should call on Carla as the witness to the incident.

The Republic of the Philippines, through the Department of Public Works

and Highways (DPWH) filed with the RTC a complaint for the expropriation of the
parcel of land owned by Jovito. The land is to be used as an extension of the
national highway. Attached to the complaint is a bank certificate showing that
there is, on deposit with the Land Bank of the Philippines, an amount equivalent
to the assessed value of the property. Then DPWH filed a motion for the issuance
of a writ of possession. Jovito files a motion to dismiss the complaint on the
ground that there are other properties which would better serve the purpose.

Will Jovito’s motion to dismiss prosper? Explain.

NO. The present Rule of Procedure governing expropriation (Rule 67), as

amended by the 1997 Rules of Civil Procedure, requires the defendant to file an
Answer, which must be filed on or before the time stated in the summons. Defendant’s
objections and defenses should be pleaded in his Answer not in a motion.

As judge, will you grant the writ of possession prayed for by DPWH?
Explain.

NO. The expropriation here is governed by Rep. Act No. 8974 which requires
100% payment of the zonal value of the property as determined by the BIR, to be the

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amount deposited. Before such deposit is made, the national government thru the
DPWH has no right to take possession of the property under expropriation.

Florencio sued Guillermo for partition of a property they owned in

common. Guillermo filed a motion to dismiss the complaint because Florencio
failed to implead Hernando and Inocencio, the other co-owners of the property.
As judge, will you grant the motion to dismiss? Explain.

NO, because the non-joinder of parties is not a ground for dismissal of action
(Rule 3, Sec 11). The motion to dismiss should be denied.

Mariano, through his attorney-in-fact, Marcos, filed with the RTC of

Baguio City a complaint for annulment of sale against Henry. Marcos and Henry
both reside in Asin Road, Baguio City, while Mariano resides in Davao City.
Henry filed a motion to dismiss the complaint on the ground for prematurity for
failure to comply with the mandatory barangay conciliation. Resolve the motion
with reasons.

The motion to dismiss should be denied because the parties in interest,

Mariano and Henry, do not reside in the same city/municipality, or is the property
subject of the controversy situated therein. The required conciliation/mediation before
the proper Barangay as mandated by the Local Government Code governs only when
the parties to the dispute reside in the same city or municipality, and if involving real
property, as in this case, the property must be situated also in same city or
municipality.

After the prosecution has rested and made its formal offer of evidence,
with the court admitting all of the prosecution evidence, the accused filed a
demurrer to evidence with leave of court. The prosecution was allowed to
comment thereon. Thereafter, the court granted the demurrer, finding that the
accused could not have committed the offense charged. If the prosecution files a
motion for reconsideration on the ground that the court order granting the
demurrer was not in accord with the law and jurisprudence, will the motion
prosper? Explain your answer.

NO, the motion will not prosper. With the granting of the demurrer, the case
shall be dismissed and the legal effect is the acquittal of the accused. A judgment of
acquittal is immediately executor and no appeal can be made therefrom. Otherwise the
Constitution protection against double jeopardy would be violated.

A criminal information is filed in court charging Anselmo with homicide.

Anselmo files a motion to quash the information on the ground that no
preliminary investigation was conducted. Will the motion be granted? Why or
why not?

NO, the motion to quash will not be granted. The lack of preliminary
investigation is not a ground for a motion to quash under the Rules of Criminal
Procedure. Preliminary investigation is only a statutory right and can be waived. The
accused should instead file a motion for reinvestigation within five (5) days after he
learns of the filing in Court of the case against him (Sec. 6, Rule 112, as amended).

12
 Having obtained favorable judgment in his suit for a sum of money against
Patricio, Orencio sought the issuance of a writ of execution. When the writ was
issued, the sheriff levied upon a parcel of land that Patricio owns, and a date was
set for the execution sale.

How may Patricio prevent the sale of the property on execution?

Patricio may file a Petition for Relief with preliminary injunction (Rule 38),
posting a bond equivalent to the value of the property levied upon; or assail the levy as
invalid if ground exists. Patricio may also simply pay the amount required by the writ
and the costs incurred therewith.

If Orencio is the purchaser of the property at the execution sale, how

much does he have to pay? Explain.

Orencio, the judgment creditor should pay only the excess amount of the bid
over the amount of the judgment, if the bid exceeds the amount of the judgment.

If the property is sold to a third party at the execution sale, what can
Patricio do to recover the property? Explain.

Patricio can exercise his right of legal redemption within 1 year from date of
registration of the certificate of sale by paying the amount of the purchase price with
interest of 1% monthly, plus assessment and taxes paid by the purchaser, with
interest thereon, at the same rate.

Pinoy died without a will, His wife, Rosie, and three children executed a
deed of extrajudicial settlement of his estate. The deed was properly published
and registered with the Office of the Register of Deeds. Three years thereafter,
Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to
annul the settlement alleging that she was deprived of her rightful share in the
estate. Rosie and the three children contended that (1) the publication of the
deed constituted constructive notice to the whole world, and should therefore
bind Suzy; and (2) Suzy’s action has already prescribed. Are Rosie and the three
children correct? Explain.

NO, the contention is not correct. Suzy can file a complaint to annul the
extrajudicial settlement and she can recover what is due her as such heir if her status
as an illegitimate child of the deceased has been established. The publication of the
settlement does not constitute constructive notice to the heirs who had no knowledge
or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is intended for the protection of creditors and was never
intended to deprive heirs of their lawful participation in the decedent’s estate. She can
file the action therefor within four (4) years after the settlement was registered.

Distinguish the two (2) modes of appeal fro the judgment of the Regional
Trial Court to the Court of Appeals.

13
 In cases decided by the Regional Trial Courts in the exercise of their original
jurisdiction, appeals to the Court of Appeals shall be ordinary appeal by filing written
notice of Appeal indicating the parties to the appeal; specifying the judgment/final
order part thereof appealed from; specifying the court to which the appeal is being
taken; and stating the material dates showing the timeliness of the appeal. The notice
of appeal shall be filed with the RTC which rendered the judgment appealed from and
copy thereof shall be served upon the adverse party within 15 days from notice of
judgment or final order appealed from. But if the case admits of multiple appeals or is
a special proceeding, a record on appeal is required aside from the written notice of
appeal to perfect the appeal, in which case the period for appeal and notice upon the
adverse party is not only 15 days but 30 days from notice of judgment or final order
appealed from. The full amount of the appellate court docket fee and other lawful fees
required must also be paid within the period for taking an appeal, to the clerk of the
court which rendered the judgment or final order appealed from (Secs. 4 and 5, Rule
41, Rules of Court). The periods of 15 or 30 days above-stated are non-extendible.

In cases decided by the Regional Trial Court in the exercise of its appellate
jurisdiction, appeal to the Court of Appeals shall be by filing a verified petition for
review with the Court of Appeals and furnishing the RTC and the adverse party with
copy thereof, within 15 days notice of judgment or final order appealed from. Within
the same period for appeal, the docket fee and other lawful fees required with the
deposit for cost should be paid. The 15-day period may be extended for 15 days and
another 15 days for compelling reasons.

What is the writ of amparo? How is it distinguished from the writ of

habeas corpus?

The petition for a writ of amparo is a remedy available to any person whose
right to life, liberty and security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced disappearances or threats thereof.

The writ of amparo differs from a writ of habeas corpus in that the latter is
availed of as remedy against cases of unlawful confinement or detention by which any
person is deprived of his liberty, or cases by which rightful custody of any person is
withheld from another who is lawfully entitled thereto (Sec 1, Rule 102, Rules of
Court).

What is the writ of habeas data?

The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employees, or of a private individual or entity engaged
in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.

14
 2008 BAR EXAMINATION

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

Did the court acquire jurisdiction over Mary Rose?

No, the court did not acquire jurisdiction over Mary Rose, the defendant. While
serving summons by publication is allowed in this case under Section 15, Rule 14 of
the Rules of Court, the required sending of then copy of the summons and the order of
the Court by registered mail to the last known address of the same defendant has not
been followed; service of summons by publication under said Rule has not been
complied with; thus, there is no valid service.

Alternative Answer:

Yes, the court acquired jurisdiction over Mary Rose because service of
summons by publications is allowed when the defendant does not reside and is not
found in the Philippines and the action in rem or quasi in rem under Sec. 15, Rule 14
of 1997 Rules of Civil Procedure. Besides, Mary Rose had actual knowledge of the
complaint against her (PCIB vs. Alejandro, 533 SCRA 738 [2007]).

Fe filed a suit for collection of P387,000 against Ramon in the RTC of

Davao City. Aside from alleging payment as a defense, Ramon in his answer set
up counterclaims for P100,000.00 as damages and P30,000 as attorney’s fee as a
result of the baseless filing of the complaint, as well as for P250,000 as the
balance of the purchase price of the 30 units of air conditioners he sold to Fe.

Does the RTC have jurisdiction over Ramon’s counterclaims, and if so,
does he have to pay docket fees therefor?

Yes, the RTC has jurisdiction over Ramon’s counterclaim because they are all
money claims in which the totally rule applies in determining jurisdiction (Sec. 5[d],
Rule 2, Rules of Court).

Ramon has to pay docket fees for his counterclaims whether the counterclaim
is compulsory or permissive in nature. Rule 141 of the Rules of Court has been
amended to require payment of docket fees for counterclaims and cross-claims
whether compulsory or permissive.

[This amendment has not yet been implemented by the Supreme Court. The
present practice still exempts compulsory counterclaims from docket fees.]

15
 Suppose Ramon’s counterclaim for the unpaid balance is P310,000, what
will happen to his counterclaims if the court dismisses the complaint after
holding a preliminary hearing on Ramon’s affirmative defenses?

The dismissal of the complaint is without prejudice to the right of the defendant
(Ramon) to prosecute his counterclaim in the same or in a separate action (Sec. 6,
Rule 16, last par.; Pinga vs. Heirs of Santiago, 494 SCRA 393 [2006]).

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

Since Ramon filed only a motion to dismiss, not an answer, the dismissal of the
complaint would also bring about the dismissal of his counterclaims but he can file a
separate action for his permissive counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss the complaint instead of answering
the same. (Financial Building Corporation vs. Forbes Park Association, Inc., 338 SCRA
346 [2000]).

Angela, a resident of Quezon City, sued Antonio, a resident of Makati City

before the RTC of Quezon City for the reconveyance of two parcels of land
situated in Tarlac City and Nueva Ecija, respectively. May her action prosper?

Yes, the action may prosper because improper venue can be waived; and there
appears to be no objection from the defendant. An action for reconveyance of parcels
of land partakes an action to recover title to or possession of such land; hence a real
action which should be filed in the place where the parcels of land are situated in
Tarlac and Nueva Ecija.

Assuming that the action was for foreclosure on the mortgage of the same
parcels of land, what is the proper venue for the action?

If the action was for foreclosure of mortgage, the action may be filed either in
Tarlac or Nueva Ecija where any of the parcels of land is situated. Only one action for
foreclosure need be filed as only one contract of mortgage had been constituted. (Bank
of P.I. vs. Green, 57 Phil. 712 [1932]).

Filomeno brought an action in the Metropolitan Trial Court (MeTC) of

Pasay City against Marcelino pleading two causes action. The first was a demand
for the recovery of physical possession of a parcel of land situated in Pasay City
with an assessed value of P40,000.00; the second was a claim for damages of
P5000,000 for Marcelino’s unlawful retention of the property Marcelino filed a
motion to dismiss on the ground that the total amount involved, which is
P540,000, is beyod the jurisdiction of the Metc. Is Marcelino correct?

NO, Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts and
other courts of the first level have been vested with exclusive original jurisdiction in all
civil actions which involved title to, or possession of real property or any interest
therein where the assessed value of the property or interest therein does not exceed

16
P20,000.00, or in civil actions in Metro Manila, where such assessed value does not
exceed P50,000.00 exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses and costs. Pasay City where the action for recovery of physical
possession was filed, is part of Metro Manila and therefore has exclusive jurisdiction
over parcel of land situated therein whose value is P40,000.00. The claim for damages
of P500,000.00 for the unlawful retention of the land is not determinative of the
court’s jurisdiction which is based on the nature of the action. The claim for damages
of P500,000.00 is just a consequence of the unlawful detention of the property subject
of the action, which should not be taken separately from land. Filomeno has only one
cause of action which is the action for recovery of possession of the land against
Marcelino, with damages.

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

Did the judge gravely abuse his discretion in acting on the motion without
waiting for the hearing set for the motion?

No, the judge did not gravely abuse his discretion when he denied the motion
for bill of particulars without waiting for the hearing set in the motion.

Section 2, Rule 12 of the Rules of Court authorizes the court to either deny or
grant said motion outright upon the clerk of court bringing such motion to the
attention of the court. The motion may lack merit.

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

Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the
court’s order to file and serve the needed bill of particulars. Section 4, Rule 12 of the
Rules of Court authorizes the court to order the striking out of the pleading affected,
hence the dismissal of the complaint. To the same end is the provision of Section 3,
Rule 17 of the Rules when plaintiff fails to comply for no justifiable cause with any
order of the court or with the Rules.

After his properties were attached, defendant Porfirio filed a sufficient

counterbond. The trial court discharged the attachment. Nonetheless, Porfirio
suffered substantial prejudice due to the unwarranted attachment. In the end,
the trial court rendered a judgment in Porfirio’s favor by ordering the plaintiff to
pay damages because the plaintiff was not entitled to the attachment. Porfirio
moved to charge the plaintiff’s attachment bond. The plaintiff and his sureties
opposed the motion, claiming that the filing of the counterbond had relieved the
plaintiff’s attachment bond from all liability for the damages. Rule on Porfilio’s
motion.

17
 Porfilio’s motion to charge plaintiff’s attachment bond is proper and can be
granted. It is not correct to contend that Porfilio’s filing of a counterbond constitutes a
waiver of his right to proceed against the attachment bond for the damages he suffered
from the unwarranted attachment. It is a condition inter alia of the applicant’s
attachment bond that he will pay all the costs which may be adjudged to the adverse
party and all damages which the latter may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled thereto (Sec. 4, Rule 57,
Rules of Court; D.M. Wenceslao and Associates, Inc. vs. Readycon Trading and
Construction Corp., 433 SCRA 251 [2004]).

The writ of execution was returned unsatisfied. The judgment oblige

subsequently received information that a bank holds a substantial deposit
belonging to the judgment obligor. If you were the counsel of the judgment
oblige, what steps would you take to reach the deposit to satisfy the judgment?

Since a writ of execution is valid for five years from its issuance, the sheriff
should be informed and requested to garnish or levy on execution the bank deposits
belonging to the judgment obligor (Sec 9(c), Rule 39, Rules of Court). Then the
judgment creditor move for a court order directing the application of such bank
deposit to the satisfaction of the judgment (Sec. 40, Rule 39, Rules of Court).

If the bank denies holding the deposit in the name of the judgment obligor
but your client’s informant is certain that the deposit belongs to the judgment
obligor under an assumed name, what is your remedy to reach the deposit?

To reach the bank deposit belonging to the judgment obligor but under an
assumed name, a motion may be filed for a court order requiring the proper bank
officer to appear in court for examination under oath as to such bank deposit, and
subsequently move for a court order authorizing the filing of an action against such
bank for the recovery of the judgment obligor’s deposit/interest therein and to forbid a
transfer or other disposition of such deposit/interest within 120 days from notice of
the order (Secs. 37 and 43, Rule 39, Rules of Court).

Bembol was charged with rape. Bembol’s father, Ramil, approached

Artemon, the victim’s father, during the preliminary investigation and offered to
settle the case. Artemon refuse the offer.

During the trial, the prosecution presented Artemon to testify on Ramil’s

offer and thereby establish an implied admission of guilt. Is Ramil’s offer to
settle admissible in evidence?

No. The offer to settle not being made by the accused or with his participation is
not admissible against him under the rule of res inter alios_acta. No implied admission
of guilt can be drawn from efforts to settle a criminal case out of court, where the
accused had no participation in such negotiation (People vs. Godoy, 250 SCRA 676
[1995]).

ALTERNATIVE ANSWER

18
 It has been held, however, that the offer to settle made by relatives of the
accused is admissible as an implied admission guilt. (People vs. Salvador, 396 SCRA
298 [2003]).

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

No. The offer is not a judicial admission of guilt because it has not been
reduced in writing or signed by the accused. The Rule on pre-trial in criminal cases
(Rule 118, Sec. 2, Rules of Court) requires that all agreements or admission made or
entered during the pre-trial conference shall be reduced in writing and signed by the
accused and counsel Otherwise, they cannot be used against the accused.

The search warrant authorized the seizure of “undetermined quantity of

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

The motion to suppress filed by the accused should be granted. The search
warrant violates the constitutional and statutory requirement that it should
particularly describe the person or things to be seized (Sec. 2, Art. III, Constitution;
Sec. 2, Rule 126, Revised Rules of Criminal Procedure). The “plain view” doctrine
cannot be invoked because the marijuana leaves were wrapped in newsprint. Besides
the marijuana leaves are not the subject of the search warrant. There was no evidence
as to whether the marijuana leaves were discovered and seized before or after the
seizure of the shabu. If they were discovered after the seizure of the shabu, then they
could not have been seized in plain view (Cf. People vs. Musa, G.R. No. 96177,
January 27, 1997). The confiscation of the marijuana leaves must be upheld, People
vs. Salunguit Roberto y Ko, 356 SCRA 683 [2001]), hence rendering the same
inadmissible in evidence against the accused.

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

The RTC ruled correctly in denying the motion for reinvestigation and for the
recall of the warrants of arrest, because the accused have not surrendered their
persons to the court. Jurisdiction over the person of the accused can only be obtained
through arrest or voluntary surrender. (Dimatulac vs. Villon, 297 SCRA 679 [1998]).

19
ANOTHER SUGGESTED ANSWER

No, the court acquired jurisdiction over the person of the accused when they
filed the aforesaid motion and invoked the court’s authority over the case, without
raising the issue of jurisdiction over their person. Their filing the motion is
tantamount to voluntary submission to the court’s jurisdiction and contributes
voluntary appearances (486 SCRA 377 [2006]).

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

On October 1, 2007, pending resolution of the motion to dismiss, Arturo

filed an amendment complaint alleging that Roberto’s debt had in the meantime
become due but that Robert still refused to pay. Should the amended complaint
be allowed considering that no answer has been filed?

No. Even though as amendment of the complaint before answer is a matter of

right, lack of a cause of action at the commencement of a suit is not cured by the
accrual of a cause of action subsequent thereto, such that an amendment setting up
the after-accrued cause of action is not allowed (Swagan Hotels And Travel, Inc. vs.
Court of Appeals, 455 SCRA 175 [2005]).

Would your answer be different had Arturo filed instead a supplemental

complaint stating that the debt became due after the filing of the original
complaint?

No, because a complaint whose cause of action has not accrued yet when filed,
does not gain any standing in court such that no amendment, whether by amended or
supplemental pleading, can cure the deficiency. The subsequent cause of action that
arose may only be subject of a different suit but cannot be pleaded as a supplement to
the complaint where no cause of action exists. Simply put, no amended or
supplemental complaint is allowed (Swagman Hotels And Travel, Inc. vs. Court of
Appeals, 455 SCRA 175 [2005]).

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

20
 Yes, it is necessary for Atty. Sikat to file a second notice of appeal to the
amended decision because a substantial change was made to the original decision
when the monetary awards were reduced in the amended decision and in effect the
amended decision superseded the original decision. A new notice of appeal is required
to comply with the required contents thereof in respect of the amended decision
(Pacific Life Assurance Corporation vs. Sison, 299 SCRA 16 [1998]; Magdelana
Estates, Inc. vs. Caluag, 11 SCRA 333 [1964]).

An heir/oppositor in a probate proceeding filed a motion to remove the

administrator on the grounds of neglect of duties as administrator and absence
from the country. On his part the heir/oppositor served written interrogatories
to the administrator preparatory to presenting the latter as a witness. The
administrator objected, insisting that the modes of discovery apply to ordinary
civil actions, not special proceedings. Rule on the matter.

The administrator’s contention that the modes of discovery apply only to

ordinary civil actions and not to special proceedings is not correct. Section 2, Rule 72
of the Rules of Court provides that: “In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as far as practicable, applicable in
special proceedings. “There is provision to the contrary that would preclude the
application of the modes of discovery, specifically Interrogatories to Parties under Rule
25 of the Rules, to probate proceedings.

On August 15, 2008 Edgardo committed estafa against Petronilo in the

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

No. The subpoena may not be simply quashed on the allegation that the
testimony to be elicited constitutes privileged communication. It may be noted that the
accused committed the crime of swindling on August 15, 2008, whereas he first visited
his lawyer on August 14, 2008 or before he committed the swindling. Clearly the
conversations the accused had with his lawyer during such first visit, before he
committed the swindling cannot be protected by the privilege between attorney and
client because the crime had not been committed yet and it is no part of a lawyer’s
professional duty to assts or aid in the commission of a crie; hence not in the course of
professional employment.

The second visit by accused Edgardo to his lawyer on the next day (August 16,
2008) after the swindling was committed may also suffer from the same infirmity as
the conversations had during their first meeting inasmuch as there could not be a
complaint made immediately after the estafa was committed. The privilege covering a
lawyer-client relation under Sec. 24, (par(b), Rule 130, may not be invoked, as it is not
a ground for quashal of a subpoena ad testificandum under Section 4, Rule 21 of the
Rules of Court.

21
 Although the subpoena ad testificandum may not be quashed the privilege
covers conversations “with a view to professional employment.” It can be invoked at
the trial but not to quash the subpoena.

Half-brother Roscoe and Salvio inherited from their father a vast of

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

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

Yes, in case of Transfer of Interest pending litigation, the action may be

continued by or against the original party unless the court, upon motion, directs a
person to be substituted in the action or joined with the original party (Sec. 19, Rule
3, Rules of Court). The owners of property over which reconveyance is asserted are
indispensable parties and must be joined in the action. Accordingly, the contention of
Carlo is such party to the action filed by Salvio, is tenable. He is not bound by the
judgment because he became a co-owner of the land before the case was filed and yet
he has not been included as a party thereto (Matuguina Integrated Word Products,
Inc. vs.

Court of Appeals, 263 SCRA 490 [1996]; Ma. Valentina Santana-Cruz vs. Court
of Appeals, et. al., 361 SCRA 520 [2001]).

Nina, however is a successor-in-interest of Roscoe and privy to the case. Hence,

she is bound by the judgment as against Roscoe although she is not party to the case
(Sec. 19, Rule 3; Cabresos vs. Tero, 166 SCRA 400 [1988]). A judgment is conclusive
between the parties and their successors-in-interest by title subsequent to the case
(Sec. 47, Rule 39, Rules of Court).

[Parenthetically, it is worth mentioning that the sale of the northern one-half of

the vast tract of land owned in common by Roscoe and Salvio, is void as to the
northern half but valid as to the presumed one-half undivided interest of Roscoe. The
existence of the co-ownership must first be determined to exist before the right of
reconveyance on the basis of a constructive trust may proper. However, in the problem
the judgment has become final and executor, so the problem is centered on the
remedial law aspect].

22
 The mutilated cadaver of a woman was discovered near a creek. Due to
witnesses attesting that he was the last person seen with the woman when she
was still alive, Carlito was arrested within five hours after the discovery of the
cadaver and brought to the police station. The crime laboratory determined that
the woman had been raped. While in police custody, Carlito broke down in the
presence of an assisting counsel and orally confessed to the investigator that he
had raped and killed the woman, detailing the acts he had performed up to his
dumping of the body near the creek. He was genuinely remorseful. During the
trial, the State presented the investigator to testify on the oral confession of
Carlito. Is the oral confession admissible as evidence of guilt?

No, the oral confession in not admissible as evidence of guilt of Carlito because
he was already under arrest and in police custody when he made the extrajudicial
confession but the mandates of Rep. Act No. 7438, particularly Sections 2, par. (d),
have not been complied with. Noncompliance with said par. (d) of the law expressly
renders the extrajudicial confession inadmissible as evidence in any proceeding.

He was not informed of his right to be warned and he was not informed of the
Miranda right particularly the right to remain silent. Additionally, it does not appear
that counsel present in his counsel of his choice.

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

No, Ben is not correct. In an action for unlawful detainer, it is not required that
the plaintiff be in prior physical possession of the land subject of the action. In this
action by the vendee a retro against a vendor a retro who refused to vacate the
property even after title has been consolidated in the vendee, the latter, in
contemplation of law, steps into the shoes of the vendor and succeeds to his rights
and interest (Pharma Industries, Inc. vs. Hon. Pajarillaga, 100 SCRA 339 [1980];
Maninang vs. Court of Appeals, 14 SCRA 525 [1999]).

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

Gen has the legal personality to file the petition for letters of administration
because she is an “interested person” in contemplation of Section 2, Rule 79 of the
Rules of Court, being a co-owner of the properties acquired through joint efforts with
Domenico during their cohabitation for 20 years. She, therefore, has direct interest as
co-owner to such properties forming part of the estate of Domencio (Arts. 147-148,
family Code; San Luis, 514 SCRA 294 [2007]).

23
 After Alma had started serving her sentence for violation of Batas
Pambansa Blg. 22 (BP 22), she filed a petition of writ of habeas corpus, citing
Vaca vs. CA where the sentence of imprisonment of a party found guilty of
violation of BP 22 was reduced to a fine equal to double the amount of the check
involved. She prayed that her sentence be similarly modified and that she be
immediately released from detention. In the alternative, she prayed that pending
determination on whether the vaca ruling applies to her, she be allowed to post
bail pursuant to Rule 102, Sec. 14, which provides that if a person is lawfully
imprisoned or restrained o a charge of having committed an offense not
punishable by death, he may be admitted to bail in the discretion of the court.
Accordingly, the trial court allowed Alma to post bail and then ordered her
released. In your opinion, is the order of the trial court correct?

Under Rule 102?

No. Section 4, Rule 102 of the Rules of Court (Habeas Corpus) does not
authorize a court to discharge by writ of habeas corpus a person charged with or
convicted of an offense in the Philippines, or of a person suffering imprisonment under
lawful judgment.

Under the Rules of Criminal Procedure?

No. The trial court’s order releasing Alma on bail even after judgment her has
become final and in fact she has started serving sentence, is a brazen disregard of the
mandate in Section 24, Revised Rules of Criminal Procedure that: “In no case shall
bail be allowed after the accused has commenced to serve sentence.”

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

Plaintiff’s counsel sent written interrogatories to Ely, asking whether

statements of witnesses were obtained; if written, copies were to be furnished; if
oral, the exact provisions were to be set forth in detail. Ely refused to comply,
arguing that the documents and information asked are privileged
communication. Is the contention tenable? Explain.

Yes, the contention of counsel for SPS is tenable considering that he was acting
in his professional capacity in bringing about the statement he obtained from
witnesses and the memoranda he made. The notes, memoranda, and writings made by
counsel in pursuance of his professional duty, from part of his private and confidential
files in the cases handled by him; hence privileged (Air Philippines Corp. vs.
Pennswell, Inc., 540 SCRA 215 [2007]).

ANOTHER SUGGESTED ANSWER

24
 The oral statements secured by the lawyer from the witnesses may not be the
subject of discovery procedure not because they are privileged communication but
because of the danger of untruthfulness and inaccuracy. The account of the lawyer is
likewise hearsay evidence. Besides, plaintiff’s counsel may obtain transcripts of the
testimonies of the four survivors before the maritime board inquiry.

On the other hand, under Rule 23, the lawyer may be examined regarding the
existence of the written statements of the survivors, including the description, nature,
and custody thereof, not being privileged communication. (Hickman vs. Taylor, 329 US
495 [1947]).

Compare the certiorari jurisdiction of the Supreme Court under the

Constitution with that under Rule 65 of the Rules of Civil Procedure.

Under the Constitution, the certiorari jurisdiction of the Supreme Court

provides for its expanded jurisdiction power of judicial power over [governs] all
branches or instrumentalities of the government where is a grave abuse of discretion
amounting to lack or excess of jurisdiction, as [agencies and instrumentalities]
provided in Section 1, second par., Art. VIII of the 1987 Constitution. The petition is
filed under Rule 45 of the Rules of Court, and [The writ is directed not only to tribunal,
board or officer exercising judicial or quasi-judicial functions. And] the period fixed for
availing of the remedy is within 30 days from receipt of the copy of the decision, order
or ruling in question (Sec. 7, Art. IX).

But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the
Supreme Court is limited to acts done without or in excess of jurisdiction or grave
abuse of discretion amounting to lack or excess of jurisdiction, by a tribunal, board or
officer exercising judicial or quasi-judicial functions only. And the period fixed for
availing of the remedy is not later than 60 days from notice of judgment; order or
resolution in question (Secs. 1 and 4, Rule 65, Rules of Court).

Give at least three instances where the Court of Appeals may act as a trial
court.

Instances where the Court of Appeals may act as a trial court are:

In annulment of judgment under Secs. 5 and 6, Rule 47. Should the Court of
Appeals find prima facie merit in the petition, the same shall be given due course and
summons shall be served on the respondent, after which trial will follow, where the
procedure in ordinary civil cases shall be observed.

When a motion for new trial is granted by the Court of Appeals, the procedure
in the new trial shall be the same as that by a Regional Trial Court (Sec. 4, Rule 53).

A petition for habeas corpus shall be set for hearing (Sec 12, Rule 102).

In a petition for the writs of amparo and habeas corpus data, hearing can be
conducted.

25
 Under section 12, Rule 124 of the Rules of Criminal Procedure, the Court of
Appeals has the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues cases which fall within its
original and appellate jurisdiction.

The court of Appeals can grant a new trial based on the ground of newly
discovered evidence. (Sec. 14, Rule 124).

The Court of Appeals, under Section 6, Rule 46, whenever necessary to resolve
factual issues, may conduct hearing thereon or delegate the reception of the evidence
of such issues to any of its members or to an appropriate agency or office.

[NOTE: it is suggested that an answer with any three (3) of the enumerated
instances should be considered as correct].

2007 BAR EXAMINATION

CIVIL PROCEDURE

What are the rules on the recognition and enforcement of foreign

judgment in our courts?

SUGGESTED ANSWER:

Judgments of foreign courts are given recognition in our courts thus:

In case of judgment upon a specific thing, the judgment is conclusive upon the
title to the thing, unless otherwise repelled by evidence of lack of jurisdiction, want of
due to the party, collusion, fraud, or clear mistake of law or fact (Rule 39, Sec. 48 [a],
Rules of Court); and

In case of judgment against a person, the judgment is presumptive evidence of

a right as between the parties and their successors in interest by subsequent title,
unless otherwise repelled by evidence on grounds above stated (Rule 39, Sec. 48 [b],
Rules of Court).

However, judgments of foreign courts may only be enforced in the Philippines

through an action validly heard in a Regional Trial Court. Thus, it is actually the
judgment of the Philippine court enforcing the foreign judgment that shall be
executed.

Can a foreign arbitral award be enforced in the Philippines under those

rules? Explain briefly.

No, a foreign arbitral award cannot be enforced in the Philippines under the
rules on the recognition and enforcement of foreign judgments above-stated. A foreign
arbitral award is not a foreign judgment, and pursuant to the Alternative Dispute
Resolution Act of 2004 (R. A. No. 9285), in relation to 1958 New York Convention on

26
the Recognition and Enforcement of Foreign Arbitral Awards, the recognition and
enforcement of the foreign arbitral awards shall be in accordance with the rules of
procedure to be promulgated by the Supreme Court. At present, the Supreme Court is
yet to promulgated rules of procedure on the subject matter.

How about a global injunction issued by a foreign court to prevent

dissipation of funds against a defendant therein who has asserts in the
Philippines? Explain briefly.

Yes, a global injunction issued by a foreign court to prevent dissipation of funds

against a defendant who has assets in the Philippines may be enforced in our
jurisdiction, subject to our procedural laws.

As a general rule, no sovereign is bound to give effect within its dominion to a

judgment or order of a tribunal of another country. However, under the rules of
comity, utility and convenience, nations have established a usage among civilized
states by which final judgments of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious under certain conditions that may vary
in different countries (St. Aviation Services Co., Pte., Ltd. vs. Grand International
Airways, Inc., 505 SCRA 30 [2006]; Asiavest Merchant Bankers (M) Berhad vs. Court
of Appeals, 361 SCRA 489 [2001]).

EVIDENCE

True or False. If the answer is false, explain your answer briefly.

The surviving parties rule bars Maria from testifying for the claimant as to
what the deceased Jose had said to her, in a claim filed by Pedro against the
estate of Jose.

False. The said rule bars only parties-plaintiff and their assignors, or persons
prosecuting a claim against the estate of a deceased; it does not cover Maria who is a
mere witness. Furthermore, the disqualification is in respect of any matter of fact
occurring before the death of said deceased (Sec. 23, Rule 130, Rules of Court, Razon
vs. Intermediate Appellate Court, 207 SCRA 234 [1992]). It is Pedro who filed the claim
against the estate of Jose.

A defendant who has been declared in default can avail of a petition for
relief from the judgment subsequently rendered in the case.

False. The remedy of petition for relief from judgment is available only when the
judgment in question is already final and executor, i.e., no longer appealable. As an
extraordinary remedy, a petition for relief from judgment may be availed only in
exceptional cases where no other remedy is available.

A motion is a pleading.

False. A motion is not a pleading but a mere application for relief other than by
a pleading (Rule 15, Sec. 1, Rules of Court)

27
 A counterclaim is a pleading.

True. A Counterclaim is a pleading by which a defending party makes a claim

against an opposing party (Sec. 6, Rules of Court)

What is the hearsay rule?

The hearsay rule is a rule of evidence to the effect that a witness can testify only
those facts which he knows of his own knowledge or derived from his own perceptions,
except as otherwise provided in the Rules of Court (Rule 130, Sec. 36. Rules of Court).

In the relation to the hearsay rule, what do the following rules of evidence
have in common?

(1) The rule on statements that are part of the res gestae;
(2) The rule on dying declarations;
(3) The rule on admissions against interest.

The rules on the evidence specified in the question asked, have common the
following:

(a) The evidence although the hearsay, are allowed by the Rules as exceptions
to the hearsay rule;
(b) The facts involved are admissible in evidence for reasons of necessity and
trustworthiness; and
(c) The witness is testifying on facts which are not of his own knowledge or
derived from his own perception.

SPECIAL PROCEEDINGS

Husband H files a petition for declaration of nullity of marriage before the

RTC of Pasig City. Wife W files a petition for habeas corpus before the RTC of
Pasay City, praying for custody over their minor child. H files a motion to
dismiss the wife’s petition on the ground of the pendency of the other case.
Rule.

The motion to dismiss the petition for habeas corpus should be granted to avoid
multiplicity of suits. The question of who between the spouses should have custody of
their minor child could also be determined in the petition for declaration of nullity of
their marriage which is already pending in the RTC of Pasig City. In other words, the
petition filed in Pasig City, praying for custody of the minor child is unnecessary and
violates only the cardinal rule of procedure against multiplicity of suits. Hence, the
latter suit may be abated by a motion to dismiss n the ground of litis pendentia (Yu vs.
Yu, 484 SCRA 485 [2006]).

CIVIL AND CRIMINAL PROCEDURE

Distinguish the effects of the filing of a demurrer to the evidence in a

criminal case and its filing in a civil case.

28
 The following are the distinctions in effects of demurrer to the evidence in
criminal cases from that in civil cases:

1. In criminal cases, demurrer to the evidence requires prior leave of court,

otherwise the accused would lose his right to present defense evidence if
filed and denied; in civil cases, no leave of court is required for filing such
demurrer.
2. In criminal cases, when such demurrer is granted, the dismissal of the case
is not appealable inasmuch as the dismissal would amount to an acquittal,
unless made by a court acting without or in excess of jurisdiction; in civil
cases, when such demurrer is granted, the dismissal of the case can be
appealed by the plaintiff.
3. In criminal cases, the accused loses his right to present his defense-evidence
in the trial court when he filed the demurrer without leave of court; while in
civil cases, the defendant loses his right to present his defense-evidence only
if the plaintiff appealed such dismissal and the case is before the appellate
court already since the case would be decided only on the basis of plaintiff’s
evidence on record.

CRIMINAL PROCEDURE

What is reverse trial and when may it resorted to? Explain briefly.

A reverse trial is one where the defendant or the accused present evidence
ahead of the plaintiff or prosecution and the latter is to present evidence by way of
rebuttal to the former’s evidence. This kind of trial may take place in civil case when
the defendant’s Answer pleads new matters by way of affirmative defense, to defeat or
evade liability for plaintiff’s claim which is not denied but controverted.

In a criminal case, a reverse trial may take place when the accused made
known to the trial court, on arraignment, that he is to adduce affirmative defense of a
justifying or exempting circumstances and thus impliedly admitting the act imputed to
him. The trial court may then require the accused to present evidence first, proving
the requisites of the justifying or exempting circumstance he is invoking, and the
prosecution to present rebuttal evidence controverting the same.

On his way home, a member of the Caloocan City police force witnesses a
bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the
suspect to Caloocan City for booking since that is where his station is? Explain
briefly.

No, the arresting officer may not take the arrested suspect from Pasay City to
Caloocan City. The arresting officer is required to deliver the person arrested without a
warrant “to the nearest police station or jail” (Rule 112, sec. 5, 2000 Rules of Criminal
Procedure). To be sure, the nearest police station or jail is in Pasay City where the
arrest was made, and not in Caloocan City.

In the course of serving a search warrant, the police finds an unlicensed

firearm. Can the police take the firearm even if it is not covered by the search

29
warrant? If the warrant is subsequently quashed, is the police required to turn
the firearm? Explain briefly.

Yes, the police may take with him the “unlicensed” firearm although not covered
by the search warrant. Possession of an “unlicensed firearm” is a criminal offense and
the police officer may seize an article which is the “subject of an offense.” This is
especially so considering that the “unlicensed firearm” appears to be in “plain view” of
the police officer when he conducted the search.

Even if the warrant was subsequently quashed, the police is not mandated to
return the “unlicensed firearm.” The quashal of the search warrant did not affect the
validity of the seizure of the “unlicensed firearm.” Moreover, returning the firearm to a
person who is not otherwise allowed by law to possess the same would be tantamount
to abetting a violation of the law.

SPECIAL PROCEEDINGS

B files a petition for cancellation of the birth certificate of her daughter R

on the round of the falsified material entries therein made by B’s husband as the
informant. The RTC sets the case for hearing and directs the publication of the
order once a week for three consecutive weeks in a newspaper of general
circulation. Summons was served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted the petition. R filed a petition
for annulment of judgment before the Court of Appeals, saying that she was not
notified of the petition and hence, the decision was issued in violation of due
process. B opposed saying that the publication of the court order was sufficient
compliance with due process. Rule.

R’s petition for annulment of judgment before the Court of Appeals should be
granted. Although there was publication of the court order acting the petition to cancel
the birth certificate, reasonable notice still has to be served on R as she has an a
interest affected by the cancellation. (Secs. 3 and 4, Rule 108, Rules of Court) She is
an indispensable party (Republic vs. Benemerito, 425 SCRA 488 [2004]), and notice
has to be served on her, not for the purpose of vesting the court with jurisdiction, but
to comply with the requirements of fair play and due process (Ceruila vs. Delantar, 477
SCRA 134 [2005]).

ALTERNATIVE ANSWER

The petition for annulment of judgment should not be granted. While R is an

indispensable party, it has been held that the failure to serve notice on indispensable
parties is cured by the publication made because the action is one in rem (Alba vs.
Court of Appeals, 465 SCRA 495 [2005]; Barco vs. Court of Appeals, 420 SCRA 39
[2005]).

EVIDENCE

G files a complaint for recovery of possession and damages against F. In

the course of the trial, G marked his evidence but his counsel failed to file a
formal offer of evidence. F then presented in evidence tax declarations in the

30
name of his father to establish that his father is a co-owner of the property The
court ruled in favor of F, saying that G failed to prove sole ownership of the
property in the face of F’s evidence. Was the court correct? Explain briefly.

No, the trial court is not correct in ruling in favor of F. Tax Declarations are not
by themselves evidence of ownership; hence, they are not sufficient evidence to
warrant a judgment that F’s father is a co-owner of the property.

Plaintiff’s failure to make a formal offer of his evidence may mean a failure to
prove the allegations in his complaint. However, it does not necessarily result in a
judgment awarding co-ownership to the defendant.

While the court may not consider evidence which is not offered, the failure to
make a formal offer of evidence is a technical lapse in procedure that may not be
allowed to defeat substantive justice. In the interest of justice, the court can require G
to offer his evidence and specify the purpose thereof.

SPECIAL CIVIL ACTION

X files an unlawful detainer case against Y before the appropriate

Metropolitan Trial Court. In his answer, Y avers as a special and affirmative
defense that he is a tenant of X’s deceased father in whose name the property
remains registered. What should the court do? Explain briefly.

The court should hold a preliminary conference not later than thirty (30) days
after the defendant’s Answer was filed, since the case is governed by summary
procedure under Rule 70, Rules of Court, where a Reply is not allowed The court
receive evidence to determine the allegations of tenancy. If tenancy had in fact been
shown to be the real issue, the court should dismiss the case for lack of jurisdiction.

If it would appear that Y’s occupancy of the subject property was one of
agricultural tenancy, which is governed by agrarian laws, the court should dismiss the
case because it has no jurisdiction over agricultural tenancy cases. Defendant’s
allegation that he is a “tenant” of plaintiff’s deceased father suggests that the case is
one of landlord-tenant relation and therefore, not within the jurisdiction of ordinary
courts.

The heirs of H agree among themselves that they will honor the division of
H’s estate as indicated in her Last Will and Testament. To avoid the expense of
going to court in a Petition for Probate of the Will, can they instead execute an
Extrajudicial Settlement Agreement among themselves? Explain briefly.

The heirs of H cannot validly agree to resort to extrajudicial settlement of his

estate and do away with the probate of H’s last will and testament. Probate of the will
is mandatory (Guevarra vs Guevarra, 74 Phil. 479 [1943]). The policy of the law is to
respect the will of the testator as manifested in the other dispositions in his last will
and testament, insofar as they are not contrary to law, public morals and public
policy. Extrajudicial settlement of an estate of a deceased is allowed only when the
deceased left no last will and testament and all debts, if any, are paid (Rule 74, Sec. 1,
Rules of Court)

31
CRIMINAL PROCEDURE

L was charged with illegal possession of shabu before the RTC. Although
bail was allowable under his indictment, he could not afford to post bail, and so
he remained in detention at the City jail. For various reasons ranging fro the
promotion of the Presiding Judge, to the absence of the trial prosecutor, and to
the lack of notice to the City Jail Warden, the arraignment of L was postponed
nineteen times over a period of two years. Twice during that period, L’s counsel
filed motions to dismiss, invoking the right of the accused to a speedy trial.
Both motions were denied by the RTC. Can L file a petition for mandamus?
Reason briefly.

Yes, L can file a petition for mandamus to enforce his constitutional right to a
speedy trial which was capriciously denied to him.

There is absolutely no justification (19) times and over a period of two (2) years.
The numerous, unreasonable postponements of the arraignment demonstrate an
abusive exercise of discretion (Lumanlaw vs. Peralta, 482 SCRA 396 [2006]).
Arraignment of an accused would not take thirty minutes of the precious time of the
court, as against the preventive imprisonment and deprivation of liberty of the accused
just because he does not have the means to post bail although the crime charged is
bailable.

The right to a speedy trial is guaranteed by the Constitution to every citizen of a

crime, more so when he is under preventive imprisonment. L, in the given case, was
merely invoking his constitutional right when a motion to dismiss the case was twice
filed by his counsel. The RTC is virtually enjoined by the fundamental law to respect
such right; hence a duty. Having refused or neglected to discharge the duty enjoined
by law whereas there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law, the remedy of mandamus may be availed of.

CIVIL PROCEDURE

RC filed a complaint for annulment of the foreclosure sale against Bank V.

In its answer, Bank V set up a counterclaim for actual damages and litigation
expenses. RC filed a motion to dismiss the counterclaim on the ground that
Bank V’s Answer with Counterclaim was not accompanied by a certification
against forum shopping. Rule.

A certification against forum shopping is required only in initiatory pleadings.

In this case, the counterclaim pleaded in the defendant’s Answer appears to have
arisen from the plaintiff’s complaint or compulsory in nature and thus, ay not be
regarded as an initiatory pleading. The absence thereof in the Bank’s Answer is not
fatal defect. Therefore, the motion to dismiss on the ground raised, lacks merit and
should be denied (UST vs. Suria, 294 SCRA 382 [1998]).

On the other hand, if the counterclaim raised by the defendant’s Bank’s Answer
was not predicted on the plaintiff’s claim or cause of action, it is considered a
permissive counterclaim. In which case, it would partake of an initiatory pleading

32
which requires a certification against forum shopping. Correspondingly, the motion to
dismiss based on lack of the required certificate against forum shopping should be
granted.

CIVIL PROCEDURE (EXECUTION)

A files a case against B. While awaiting decision on the case, A goes to the
United States to work. Upon her return to the Philippines, seven years later, A
discovers that a decision was rendered by the court ion her favor a few months
after she had left. Can A file a motion for execution of the judgment? Reason
briefly.

On the assumption that judgment had been final and executor for more than
five (5) years as A’s return to the Philippines seven (7) years later, a motion for
execution of the judgment is no longer availing because execution of judgment by mere
motion is allowed by the Rules only within five (5) years from entry of judgment;
thereafter, and within ten (10) years from entry of judgment, an action to enforce the
judgment is required.

2006 BAR EXAMINATION

INTRO

What is the concept of remedial law?

The concept of Remedial Law is that it is branch of public law which prescribes
the procedural rules to be observed in litigations, whether civil, criminal, or
administrative, and in special proceedings, as well as the remedies or reliefs available
in each case.

Distinguish between substantive law remedial law.

Substantive law is that part of the law which creates, defines and regulates
rights and obligations, the violation of which gives rise to a cause of action. On the
other had, remedial law prescribes the method of enforcing rights or obtaining redress
for their invasion (cf. Bustos vs. Lucero, 81 Phil 540, 650 [1948]).

How are remedial law implemented in our system of government?

Remedial laws are implemented in our system of government through the

judicial system, including the prosecutor service, our courts and quasi-judicial
agencies.

JURISPRUDENCE

Distinguish jurisdiction from venue.

33
 Jurisdiction is the Court to decide a case on the merits, while venue refers to
the place where the suit may be filed. In criminal actions, however, venue is
jurisdictional. Jurisdiction may not be conferred upon a court by consent through
waiver, but venue may be waived except in criminal cases.

CIVIL PROCEDURE

What do you mean by (a) real actions; and (b) personal actions?

Real actions are actions affecting title to or possession of real property or an

interest therein. All other actions are personal actions (Sec. 1, Rule 4 of the 1997
Revised Rules of Civil Procedure)

JURISPRUDENCE

What court has jurisdiction over an action for specific performance filed
by a subdivision homeowner against a subdivision developer? Choose the correct
answer. Explain.

1. The Housing and Land Use Regulatory Board

2. The Securities and Exchange Commission
3. The Regional Trial Court
4. The Commercial Court or the Regional Trial Court designated by the
Supreme Court to hear and decide “commercial cases”.

The Housing and Land Use Regulatory Board (HLURB) that has jurisdiction
over an action for specific performance filed by a subdivision homeowner, who is a lot-
buyer or the latter’s successor-in-interest, against a subdivision developer (Manila
Bankers vs. Ng Kok Wei, 418 SCRA 454 [2001]).

It is the RTC that has jurisdiction where the issue involved is an ordinary sale
between buyer and seller. “Mere assertion by the petitioner that it is a subdivision
developer and the land involved is a subdivision lot, will not automatically strip the
trial court of its jurisdiction and authorize the HLURB to take cognizance of the
complaint” (Lacson Hermanos, Inc. vs. heirs of Ignacio, 462 SCRA 291 [2005]). The
mere relationship between the “Homeowner” and the Developer alone does not vest the
HLURB with jurisdiction, but the nature of the action which is to be determined by the
allegations of the complaint. Jurisdiction of the HLURB in cases of specific
performance refers to complaints for compliance with contractual and statutory
obligations. The question does not specify what is the contractual stipulation or
statutory obligation sought to be performed. An action for specific performance is an
action incapable of pecuniary estimation which falls under the jurisdiction of the
Regional Trial Court unless it is shown that the action falls under the jurisdiction of
any other court or quasi-judicial agency like the HLURB.

CIVIL PROCEDURE

What is forum shopping?

34
 Forum-shopping is the act of filing multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment (Executive Secretary vs. Gordon, 298 SCRA 735
[1998]).

Honey filed with the Regional Trial Court, Taal, Batangas a complaint for
specific performance against Bernie. For lack of a certification against forum
shopping, the judge dismissed the complaint. Honey’s lawyer filed a motion for
reconsideration, attaching thereto an amended complaint with the certification
against forum shopping. If you were the judge, how will you resolve the motion?

If I were the judge, I will deny the Motion for Reconsideration. The requirement
of filing a certificate of non-forum shopping is mandatory; it is not curable by mere
amendment of the complaint but the dismissal of the case shall be without prejudice.
(Sec. 5, Rule 7 of the 1997 Revised Rules of Civil Procedure). However, the rule may be
liberally construed when there are compelling reasons and a strict and literal
application of the rules on non-forum shopping and verification will result in a patent
denial of substantial justice (Valte vs. Court of Appeals, 433 SCRA 185 [2004]; Wack
Wack Golf & Country Club vs. national labor Relations Commission, 456 SCRA 280
[2005]).

Jojie filed with the Regional Trial Court of Laguna a complaint for
damages against Joe. During the pre-trial, Jojie and her counsel (sic) failed to
appear despite notice to both of them. Upon oral motion of Jojie, Joe was
declared as in default and Jojie was allowed to present her evidence ex parte.
Thereafter, the court rendered its Decision in favor of Jojie.

Joe hired Jose as his counsel. What are the remedies available to him?
Explain.

Under the present rule, there can be no judgment by default by mere failure of
the defendant to appear in the pre-trial. The only consenquence of such failure to
appear is that the plaintiff can present his evidence ex parte and the court may render
judgment on the basis thereof (Sec. 5, Rule 18 of the 1997 Revised Rules of Civil
Procedure). The following are the remedies available to Joe:
(a) Motion for reconsideration;
(b) Motion for new trial;
(c) Appeal;
(d) Petition for relief fro a judgment of default;
(e) Annulment of judgment under Rule 47; and
(f) Certiorari under Rule 65.

SPECIAL CIVIL ACTION (EXPROPRIATION)

May Congress enact a law providing that a 5,000 square meter lot, a part
of the UST compound in Sampaloc, Manila, be expropriated for the construction
of a park in honor of former City mayor Arsenio Lacson? As compensation to
UST, the City of Manila shall deliver its 5-hectare lot in Sta. Rosa, Laguna
originally intended as a residential subdivision for the Manila City Hall
employees. Explain.

35
 Yes, Congress can enact a law to expropriate property, but it cannot limit just
compensation. The determination of just compensation is a judicial function and
Congress may not supplant or prevent the exercise of judicial discretion to determine
just compensation (EPZA vs. Dulay, 149 SCRA 305 [1987]). Under Sec. 5, Rule 67 of
the 1997 Revised Rules of Civil Procedure, the ascertainment of just compensation
requires of three commissioners.

SPECIAL CIVIL ACTION

Explain each mode of certiorari:

a. As a mode of appeal from the Regional Trial Court or the Court of

Appeals to the Supreme Court.

A petition for review on certiorari under Rule 45 of the 1997 Revised Rules on
Civil Procedure is a mode of appeal on pure questions law from a judgment or final
order or resolution of the Court of Appeals or the Regional Court to the Supreme Court.

b. As a special civil action from the Regional Trial Court or the Court of
Appeals to the Supreme Court.

A special civil action for certiorari under Rule 65 of the Revised Rules of Civil
Procedure, is an original action from the Regional Trial Court or the Court of Appeals to
the Supreme Court against any tribunal, board or officer exercising judicial or quasi-
judicial functions raising the issue of lack or excess of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction, there being no appeal or any
plain, speedy and adequate in the ordinary course of law.

As a mode of review of the decisions of the National Labor Relations

Commission and the Constitutional Commissions.

The mode of review of the decision of the NLRC is via a special civil action for
certiorari under Rule 65, but pursuant to the hierarchy of the courts enunciated in the
case of St. Martin’s Funeral Homes vs. NLRC, 295 SCRA 494 (1998), the same should be
filed in the Court of Appeals.

The mode of review of the decisions of two Constitutional Commissions, the

Commission on Elections and the Commission on Audit, as provided under Rule 64 of
the 1997 Revised Rules of Civil Procedure, is a special civil action for certiorari under
Rule 65. Decisions of the Civil Service Commission, however, are reviewable by petition
for review to be filed with the Court of Appeals under the Rule 43 of the 1997 Revised
Rules of Civil Procedure.

CIVIL PROCEDURE (RULE 43)

Mark filed with the Bureau of Internal Revenue a complaint for refund of
taxes paid, but it was not acted upon. So, he filed a similar complaint with the
Court of Tax Appeals raffled to one of its Divisions. Mark’s complaint was

36
dismissed. Thus, he filed with the Court of Appeals a petition for certiorari under
Rule 65.

Does the Court of Appeals have jurisdiction over Mark’s petition?

No. A decision of a Division of the Court of Tax Appeals (CTA) is appealable

within 15 days to the CTA en banc [Sec. 18, Rep. Act No. 9282, as amended]. On the
other hand, a party adversely affected by a decision or ruling of the CTA en banc may
file with the Supreme Court a verified petition for review on certiorari pursuant to Rule
45 of the 1997 Rules of Civil Procedure [Sec. 19, Rep. Act No. 9282, as amended].

Rep. Act No. 9282 expanded the jurisdiction of the Court of Tax Appeals and
elevated the same to the level of a collegiate court equivalent to the rank of the Court of
Appeals. Hence, the Court of Appeals no longer has jurisdiction to review decisions of
the court of Tax Appeals en banc.

JURISPRIDENCE

Does the Court of Appeals have jurisdiction to review the Decisions in

criminal and administrative cases of the Ombudsman?

The Court of Appeals can only review the Decisions of the Ombudsman in
administrative cases in an appeal by petition for review under the Rule 43 of the 1997
Revised Rules of Civil Procedure. It has no jurisdiction to review Decisions of the
Ombudsman in criminal cases, the proper remedy being to file with the Supreme Court
an original petition for certiorari under Rule 65 (Fabian vs. Ombudsman Desierto, 295
SCRA 470 [1998]; Kuizon vs. Ombudsman Desierto, 354 SCRA 158 [2001]; Mendoza-
Arce vs. Ombudsman, 380 SCRA 325 [2002]).

PROVISIONAL REMEDIES

What are the requisites for the issuance of (a) a writ of preliminary
injunction; and (b) a final writ of injunction?

The requisites for the issuance of a writ of preliminary injunction are: (1) a right
in esse or a clear and unmistakable right to be protected; (2) a violation of that right; (3)
that there is an urgent and permanent act and urgent necessity for the writ to prevent
serious damage (Tayag vs. Lacson, 426 SCRA 282 [2004]).

A final writ of injunction may be granted if after trial of the action, it appears
that the applicant is entitled to have the act or acts complained of preliminary enjoined
(Sec. 9, Rule 58 of the 1997 Revised Rules on Civil Procedure)

Distinguish between injunction as an ancillary remedy and injunction as a

main action.

Injunction as an ancillary remedy presupposes the existence of a principal or a

main action (Vallangca vs. Court of Appeals, 173 SCRA 42 [1989]). Its main function is
to preserve the status quo until the merits can be heard and resolved (Urbanes vs.
Court of Appeals, 335 SCRA 537 [2001]).

37
 On the other hand, an injunction as the main action is brought specifically to
obtain a judgment perpetually restraining or commanding the performance of an act
after trial (Del Mar vs. PAGCOR, 346 SCRA 485 [2000]).

PROVISIONAL REMEDIES

Define a temporary restraining order (TRO).

A temporary restraining order is an interlocutory order issued to preserve the

status quo, and is granted to a party until the hearing of the application for preliminary
injunction (Sec. 5, par. 2, Rule 58 of the 1997 Rules of Civil Procedure).

May a Regional Trial Court issue injunction without bond?

Yes, if the injunction issued is a final injunction. Generally, however, a

preliminary injunction may not be issued without the posting of a bond, unless
exempted by the trial court (Rule 58, sec. 4 [b], 1997 Revised Rules of Civil Procedure)
or otherwise provided for by law.

What is the duration of a TRO issued by the Executive Judge of a Regional

Trial Court?
The duration of the TRO issued by the executive judge of a Regional Trial Court
is seventy-two (72) hours from issuance, which is issued only if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, and the
duration of the TRO issued by his as the judge assigned to the case, ay be effective for
a total of twenty (20) days, including the original period of 72 hours.

Differentiate a TRO from a status quo order.

A temporary restraining order is issued upon application of a party and upon

the posting of the required bond. On the other hand, a status quo order may be issued
motu proprio on equitable considerations, and does not require the posting of abond.
Unlike a temporary restraining order or a preliminary injunction, a status quo order is
more in the nature of a cease and desist order, since it neither directs the doing or
undoing of acts as in the case of prohibitory or mandatory injunctive relief (Garcia vs.
Mojica, 314 SCRA 207 [1999]).

May a Justice of a Division of the Court of Appeals issue a TRO?

Yes, a Justice of a Division of the Court of Appeals may issue a TRO, as

authorized under Rule 58 and by Section 5, Rule IV of the IRCA which additionally
requires that the action shall be submitted on the next working day to the absent
embers of the division for their ratification, modification or recall (Heirs of the late
Justice Jose B.L. Reyes vs. Court of Appeals, 338 SCRA 282 [2000]).

CIVIL PROCEDURE

What is an interlocutory order?

38
 An interlocutory order is an order which decides same point or matter between
the commencement and end of the suit but it is not the final decision on the whole
controversy. It leaves something to be doe by the court before the case is finally decided
on the merits. (Metropolitan Bank & Trust Co. vs. Court of Appeals, 356 SCRA 563
[2001]; Gallardo vs. People, 456 SCRA 494 [2005]).

CIVIL PROCEDURE (JUDGMENT)

What is the difference between a judgment and an opinion of the court?

The judgment or fallo is the final disposition of the Court which is reflected in
the dispositive portion of the decision, while the opinion of the court is contained in the
body of the decision that serves as a guide or emlightenment to determine the ratio
decidendi of the decision.

CIVIL PROCEDURE

Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a
complaint for sum of money amounting to P 1 Million against Carlos Corro. The
complaint alleges, among others, that Carlos borrowed from Tina 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 Linda, his
secretary. However, carlos failed to file an Answer to the complaint within 15-day
reglamentary period. Hence, Tina filed with the court a motion to declare Carlos
in default and to allow her to present evidence ex parte. Five days thereafter,
Carlos filed his verified answer to the complaint, denying under oath the
genuineness and due execution of the promissory note; and contending that he
has fully paid his loan with interest 12% per annum.

Was the summons validly served on Carlos?

No, the summons was not validly served on Carlos. As a general rule, summons
must be served on the defendant in person (Sec. 6, Rule 14 of the 1997 Revised Rules
of Civil Procedure). Substituted service may be resorted to only when the defendant
cannot be served personally within a reasonable time and for a justifiable reason (Sec.
7, Rule 14 of the 1997 Revised Rules of Civil Procedure). The return must show
impossibility of service and efforts of the Sheriff to effect personal service.

If you were the judge, will you grant Tina’s motion to declare in default?

No, I will not grant Tina’s motion to declare Carlos in default. Considering that
there was no proper service of summons, the reglementary period to file a responsive
pleading was not tolled. Carlos was not duty bound to submit an Answer. Moreover,
Carlos submitted a verified Answer. It is better to decide a case on the merits than on
sheer technicality.

SPECIAL PROCEEDINGS

Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala

Alabang Village, Muntinlupa City, of sound and disposing mind, executed a last

39
will and testament in English, a language spoken and written by him proficiency.
He disposed of his estate consisting of a parcel land in Makati City and cash
deposit at the City Bank in the sum of P300 Million. He bequeathed P50 Million
each to his 3 sons and P150 Million to his wife. He devised a piece of land worth
P100 Million to Susan, his favorite daughter-in-law. He named his best friend,
Cancio Vidal, as executor of the will without bond.

Is Cancio Vidal, after learning of Sergio’s death, obliged to file with the
proper court a petition for probate of the latter’s last will and testament?

No, Cancio Vidal is not obliged to file a petition for probate because under Sec.
3, Rule 75, he is only obliged to deliver the will within twenty (20) days after he knows
of the death of the testator.

Supposing the original copy of the last will and testament was lost, can
Cancio compel Susan to produce a copy in her possession to be submitted to the
probate court?

Yes, as a person having custody of the will, Susan has the duty to deliver the
will to the court having jurisdiction or to the executor named in the will within twenty
(20) days learning the death of the testator (Sec. 2, Rule 75 of the Rules of Court).

Can the probate court appoint the widow as executor of the will?

Yes, the probate court can appoint the widow as an executor of the will if
Cancio Vidal is found to be incompetent, refuses the trust, or fails to give a bond,
provided that she is competent and willing to serve (Sec. 6, Rule 78 of the Rules of
Court).

Can the widow and her children settle extrajudicially among themselves
the estate of the deceased?

No, an extrajudicial settlement of estate by agreement between or among the

heirs of the deceased may be had only when the decedent left no will (Sec. 1, Rule 75 of
the Rules of Court).

Can the widow and her children initiate a separate petition for partition of
the estate pending the probate of the last will and testament by the proper court?

No, the widow and her children cannot file a separate petition for pending the
probate of the Will (Sec. 1, Rule 75 of the Rules of Court; Vda. De Kilayko vs. Tengko,
207 SCRA 600, [1992]). Partition is part of the testate estate proceeding.

CRIMINAL PROCEDURE

When is bail a matter of right and when is it a matter of discretion?

Bail is a matter of right: (a) before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial
Court; (b) before conviction by the Regional Trial Court of an offense not punishable by

40
death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114 of the 2000 Revised
Rules on Criminal Procedure); and (c) if the charge involves a capital offense and the
evidence of guilt is not strong (Sec. 7, Rule 114 of the 2000 Revised Rules on Criminal
Procedure).

Bail is a matter of discretion upon conviction by the Regional Trial Court of an

offense not punishable by death, reclusion perpetua, or life imprisonment (Sec. 5, Rule
114 of the 2000 Revised Rules on Criminal Procedure).

EVIDENCE

Leticia was estranged fro her husband Paul for more than a year due to his
suspicion that she was having an affair with Manuel, their neighbor. She was
temporary living with her sister in Pasig City.
For unknown reasons, the house of Leticia’s sister was burned, killing the
latter. Leticia survived. She saw her husband in the vicinity during the incident.
Later, he was charged with arson in an Information filed with the Regional Trial
Court, Pasig City.

During the trial, the prosecutor called Leticia to the witness stand and
offered her testimony to prove that her husband committed arson.

Can Leticia testify over the objection of her husband on the ground of
marital privilege?

Yes, Leticia can testify over the objection her husband. As a general rule,
neither the husband nor the wife, during their marriage, may testify for or against the
other without the consent of the affected spouse, except in civil case by one against the
other, or in a criminal case for a crime committed by one against the other or the
latter’s direct descents or ascendants (Rule 130, Sec. 22, Revised Rules on Evidence).
In a number of cases, it has been held that the marital disqualification is aimed at
protecting the harmony and confidences of marital relations; hence where the marital
and domestic relations are so strained that there is no more harmony to be preserved
nor peace and tranquility which may be disturbed, the marital disqualification no
longer applies.

The act of Paul in setting fire to the house of his sister-in-law, knowing fully
well that his wife was there, is an act totally alien to the harmony and confidences of
marital relation which the disqualification primarily seeks protect. The criminal act
complained of had the effect of directly and vitally impairing the conjugal relation. It
underscored the fact that marital and domestic relations between her and the accused-
husband have becoe so strained that there is no more harmony, peace or tranquility to
be preserved (Alvarez vs. Ramirez, 473 SCRA 72 [2005]; Ordono vs. Daquigan, 62 SCRA
270 [1975]).

CRIMINAL PROCEDURE

What are the requirements in order that an admission of guilt of an

accused during a custodial investigation be admitted in evidence?

41
 An admission of guilt during a custodial investigation is a confession. To be
admissible in evidence, the requirements are: (1) the confession must be voluntary; (2)
the confession must be made with the assistance of competent and independent
counsel; (3) the confession must be express; and (4) the confession must be in writing
(People vs. Principe, 381 SCRA 642 [2002]).

As counsel of an accused charged with homicide, you are convinced that

he can be utilized as a state witness. What procedure will you take? Explain.

As a counsel foe the accused, I will advise my client to ask for a reinvestigation
and convince the prosecutor for him to move for the discharge of my client as a state
witness, or the accused can apply as a state witness with the Department of Justice
pursuant to Rep. Act No. 6981, The Witness Protection, Security and Benefit Act. The
right to prosecute vests the prosecutor with a wide range of discretion, including what
and whom to charge (Soberano vs. People, 472 SCRA 125 [2005]).

In 1996, Congress passed Republic Act No. 8189, otherwise known as the
Voter’s Registration Act 1996, providing for computerization of elections.
Pursuant thereto, the COMELEC approved the Voter’s Registration and
Identification System (VRIS) project. It issued invitations to pre-qualify and bid
for the project. After the public bidding, Fotokina was declared the winning
bidder with a bid of P6 Billion and was issued a Notice of Award. But COMELEC
Chairman Gener Go objected to the award on the ground that under the
Appropriations Act, the budget for the COMELEC’s modernization is only P1
Billion. He announced to the public that the VRIS project has been set aside. Two
Commissionerssided with Chairman Go, but the majority voted to uphold the
contract.

Meanwhile, Fotokina filed with the RTC a petition for mandamus to

compel the COMELEC to implement the contract. The Office of the Solicitor
General (OSG), representing Chairman Go, opposed the petition on the ground
that mandamus does not lie to enforce contractual obligations. During the
proceedings, the majority Commissioners filed a manifestation that Chairman Go
was not authorized by the COMELEC En Banc to oppose the petition.

May the OSG represent Chairman Go before the RTC notwithstanding that
his position is contrary to that of the majority?

Yes, the office of the Solicitor General can represent Chairman Go before the
Regional Trial Court. The OSG is an independent office. Its hands are not shackled to
the cause of its client agency. In the discharge of its task the primordial concern of the
OSG is to see to it that the best interests of the government is upheld (COMELEC vs.
Quijano-Padilla, 389 SCRA 353 [2002]).

SPECIAL CIVIL ACTION

Is a petition for mandamus an appropriate remedy to enforce contractual

obligations?

42
 No, the COMELEC cannot be compelled by a writ of mandamus to discharge a
duty that involves the exercise of judgment and discretion, especially where
disbursement of public funds is concerned (COMELEC vs. Quijano-Padilla, [supra] and
other cases.)

CIVIL PROCEDURE

Under Article 1144 of the New Civil Code, an action upon a judgment must
be brought within 10 years from the tie the right of action accrues.

Is this provision applicable to an action filed in the Philippines to enforce

a foreign judgment? Explain.

Article 1144 of the Civil Code is applicable because it is merely an action in a

domestic court to enforce a foreign judgment. Foreign judgments should be treated in
the same manner as domestic judgments.

Alternative Suggested Answer:

Article 1144 of the Civil Code which requires that an action upon a judgment
(though without distinction) must be brought within 10 years from the time the right of
an action accrues, does not apply to an action filed in the Philippines to enforce a
foreign judgment. While we can say that where the law does not distinguish, we should
not distinguish, still the law does not evidently contemplate the inclusion of foreign
judgments. A domestic judgment may be enforced by motion within five years and by
action within the next five years. That is not the case with respect to foreign judgments
which cannot be enforced by mere motion. A foreign judgment, in fact, is merely
presumptive evidence of a right between the parties and their successors in interests.
(Van Dorn vs. Romillo, Jr., 139 SCRA 139 [1985]). The word “judgment” refers to one
mentioned in Section 1, Rule 36, which is filed with the clerk of court. If no period is
fixed in our law, the period of prescription is five (5) years under Art. 1149 of the Civil
Code.

CIVIL PROCEDURE

May the aggrieved party file a petition for certiorari in the Supreme Court
under Rule 65 of the 1997 Rules of Civil Procedure instead of filing a petition for
review on certiorari under Rule 45 thereof for the nullification of a decision of
the Court of Appeals in the exercise either of its original or appellate
jurisdiction?

The remedy to nullify a decision of the Court of Appeals is a petition for review
on certiorari in the Supreme Court under Rule 45, instead of a petition for certiorari
under Rule 65, except in certain exceptional circumstances such as where appeal is
inadequate. By settled jurisprudence, certiorari is not a substitute for a lost appeal.

EVIDENCE

May a private document be offered and admitted in evidence both as

documentary evidence and as object evidence? Explain.

43
 Yes, A private document may be offered 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. Objects as evidence are those addressed to the
senses of the court. (Sec. 1, Rule 130, Rules of Court.) Documentary evidence consists
of writings or any material containing letters, words, numbers, figures, symbols or
other modes of written expressions, offered as proof of their contents. (Sec. 2, Rule 130,
Rules of Court) A tombstone may be offered in evidence to prove what is written o it
and if the same tombstone is found on a tomb, then it is object evidence. It can be
considered as both documentary and object evidence. (See Gupit, Jr., Revised Rules of
Evidence, 1989, p. 12)

CIVIL PROCEDURE

Distinguish a derivative suit fro a class suit.

A derivative suit is a suit in equity that is filed 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 (Lim vs. Lim-Yu, 352
SCRA 216 [2001]). A class suit is filed in behalf of many persons so numerous that it is
impracticable to join all as parties. (Sec. 12, Rule 3, 1997 Rule of Civil Procedure).

EVIDENCE

When may the trial court order that the testimony of a child e taken by
live-link television? Explain.

The testimony of a child may be taken by live-link television if there is a

substantial likelihood that the child would suffer from testifying in the presence of the
accused, his counsel or the prosecutor as the case may be. The trauma must be of a
kind which would impair the completeness or truthfulness of the testimony of the
child. (Sec. 25 [f], Rule on Examination of a Child Witness).

JURISPRUDENCE

While Marietta was in her place of work in Makati City, her estranged
husband Carlo barged into her house in Parañaque City, abducted their six-year
old son, Percival , and brought the child to his hometown in Baguio City. Despite
Marietta’s pleas, Carlo refused to return their child. Marietta, through counsel,
filed a petition for habeas corpus against Carlo in the Court of Appeals in Manila
to compel him to produce their son before the court and for her regain custody.
She alleged in the petition that despite her efforts, she could no longer locate her
son.

In his comment, Carlo alleged that the petition was erroneously filed in
the Court of Appeals as the same should have been filed in the Family Court in
Baguio City which, under Republic Act No. 8369, has exclusive jurisdiction over
the petition. Marietta replied that under Rule 102 of the Rules of Court, as
amended, the petition may be filed in the Court of Appeals and if granted in the
Philippines.

44
 Whose contention is correct? Explain.

Marietta’s contention is correct. The Court of Appeals has concurrent

jurisdiction with the family courts and the Supreme Court in petitions for habeas
corpus where the custody of minors is at issue, notwithstanding the provision in the
Family Courts Act (Republic Act No. 8369) that family courts have exclusive
jurisdiction in such cases. (Thornton vs. Thornton, 436 SCRA 550 [2004]).

Sec. 20, par. 6 of SC AM No. 03-04-04 [2003] provides: “the petition may
likewise be filed with the Supreme Court, court of Appeals, or with any of its members
and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ
may ne made returnable to a Family Court or to any regular court within the region
where the petitioner resides or where the minor may be found for hearing and decision
on the merits.”

CRIMINAL PROCEDURE

Under Republic Act No. 8353, one may b charged with and found guilty of
qualified rape if he knew on or before the commission of the crime that he is
afflicted with Human Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually transmitted disease and the
virus or disease is transmitted to the victim.

Under Section 17(a) of Republic Act No. 8504 the curt may compel the
accused to submit himself to a blood test where blood samples would be extracted
from his veins to determine whether he has HIV.

Are the rights of the accused to be presumed innocent of the crime

charged, to privacy, and against self-incrimination violated by such compulsory
testing? Explain.

No. The court may compel the accused to submit himself to a blood test to
determine whether he has HIV under Sec. 17(a) of Republic Act No. 8054. His rights to
be presumed innocent of the crime charged, to privacy and against self-incrimination
are not violated by such compulsory testing. In an action in which the physical
condition of a party is in controversy, the court may order the accused to submit to a
physical examination. The right against self-incrimination refers to compulsory
testimonial compulsion and does not include the body of the accused as evidence when
it may be material (U.S. vs. Tan Teng, 23 Phil. 145 [1912]; Villaflor vs. Summers, 41
Phil. 62 [1920]; Section 1, Rule 28, 1997 Rules of Civil Procedure).

CRIMINAL PROCEDURE

If the result of such test shows that he is HIV positive, and the
prosecution such result in evidence to prove the qualifying circumstance under
the information for qualified rape, should the court reject such result on the
ground that it is the fruit of a poisonous tree? Explain.

45
 The fruits of the poisonous tree doctrine applies only where the primary source
is shown to have been unlawfully obtained or was the result of an illegal act (People vs.
Alicando, G.R. No. 117487, 251 SCRA 293 [1995]). Since the rights of the accused are
not violated because the compulsory testing is authorized by law, the result of the
testing cannot be considered to be the fruit of a poisonous tree and can be offered in
evidence to prove the qualifying circumstance under the information for qualified rape
under Republic Act No. 8353.

Perry is a resident of Manila, while Ricky and Marvin are residents of

Batangas City. They are the co-owners of a parcel of residential land located in
Pasay City with an assessed value of P100,000.00. Perry borrowed P100,000.00
from Ricky which he promised to pay on or before December 1, 2004. However,
Perry failed to pay his loan. Perry also rejected Ricky and Marvin’s proposal to
partition the property.

Ricky filed a complaint against Perry and Marvin in the Regional Trial
Court of Pasay City for the partition of the property. He also incorporated in his
complaint his action against Perry for the collection of the latter’s P100,000.00
loan, plus interests and attorney’s fees.

State with reasons whether it was proper for Ricky to join his cause of
action in his complaint for partition against Perry and Marvin in the Regional
Trial Court of Pasay City.

It was not proper for Ricky to join his cause of action against Perry in his
complaint for partition against Perry and Marvin. The causes of action may be between
the same parties, Ricky and Perry, with respect to the loan but not with respect to the
partition which includes Marvin. The joinder is between a partition and a sum of
money, but the partition is a special civil action under Rule 69, which cannot be joined.
(Sec. 5, Rule 2, 1997 Rules of Civil Procedure.) Also, the causes of action pertain to
different venues and jurisdiction. The case for a sum of money pertains to the
municipal court and cannot be filed in Pasay City because the plaintiff is from Manila
while Ricky and Marvin are from Batangas City. (Sec. 5, Rule 2, 1997 Rules of Civil
Procedure.)

CRIMINAL PROCEDURE

Raphael, a warehouseman, filed a complaint against V Corporation, X

Corporation and Y Corporation to compel them to interplead. He alleged therein
that the three corporations claimed title and right of possession over the goods
deposited in his warehouse and that he was uncertain which of them was entitled
to the goods. After due proceedings, judgment was rendered by the court
declaring that X Corporation was entitled to the goods. The decision became final
and executor.

Raphael filed a complaint against X Corporation for the payment of

P100,000.00 for storage charges and other advances for the goods. X Corporation
filed a motion to dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances and that for his failure he

46
was barred from interposing his claim. Raphael 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 therefore.

Resolve the motion with reasons.

The motion to dismiss should be granted. Raphael should have incorporated in

his complaint for interpleader his claim for storage fees and advances. They are part of
Raphael’s cause of action which he may not split. The filing of the interpleader is
available as a ground for the dismissal of the second case. (Sec. 4, Rule 2, 1997 Rules
of Civil Procedure). It is akin to a compulsory counterclaim which, if not set up, is
barred. (Sec. 2, Rule 9, 1997 Rules of Civil Procedure). The law also abhors the
multiplicity of suits; hence, the claim for storage fees should have been made part of
his cause of action in the interest of complete adjudication of the controversy and its
incidents. (Arreza vs. Diaz, 364 SCRA 88 [2001]).

ALTERNATIVE SUGGESTED ANSWER

The motion to dismiss should not be granted. Raphael not being a party to the
case cannot file a counter-complaint. A complaint for interpleader which is a special
civil action is merely an action for the parties to interplead among themselves. The
claim for storage fees is a separate and distinct cause of action. It is an ordinary action
for collection which cannot be joined in a special civil action. (Sec. 5(b) Rule 2)

SPECIAL PROCEDURE

After Lulu’s death, her heirs brought her last will to a lawyer to obtain
their respective shares in the estate. The lawyer prepared a deed of partition
distributing Lulu’s estate in accordance with the terms of her will.

Is the act of the lawyer correct? Why?

No. No will shall pass either real or personal estate unless it is proved and
allowed in the proper court. (Section 1, Rule 75, Rules of Court.)

Nestor died intestate in 2003, leaving no debts. How many his estate be
settled by his heirs who are of legal age and have legal capacity? Explain.

If 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 stipulation in a pending action for partition and
shall file a bond with the register of deeds in an amount equivalent to the value of the
personal property involved as certified to under oath by the parties concerned. The fact
of extrajudicial settlement shall be published in a newspaper of general circulation
once a week for three consecutive weeks in the province. (Section 1, Rule 74, Rules of
Court).

State the rule on venue in judicial settlement of estate of deceased

persons.

47
 The rule on venue in judicial settlement of estate of deceased persons may be
stated as follows: If the decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, the venue shall be in Regional Trial Court in the
province in which he resides at the time of his death. It cannot be in the place where he
used to live (Jao vs. Court of Appeals, 382 SCRA 407 [2002]). If he is an inhabitant of a
foreign country, the Regional Trial Court of any province in which he had estate, is the
proper venue. The court first taking cognizance of the case shall exercise jurisdiction to
the exclusion of all other courts. When marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and
liquidated, and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either. (Secs. 1 and 2, Rule 73,
Rules of Court.)

CIVIL PROCEDURE

While cruising on a highway, a taxicab driven by Mans hit an electric post.

As a result thereof, its passenger, Jovy, suffered serious injuries. Mans was
subsequently charged before the Municipal Trial Court with reckless imprudence
resulting in serious physical injuries.

Thereafter, Jovy filed a civil action against Lourdes, the owner of the
taxicab, for breach of contract, and Mans for quasi-delict. Lourdes and Mans filed
a motion to dismiss the civil action on the ground of litis pendentia, that is, the
pendency of the civil action impliedly instituted in the criminal action for
reckless imprudence resulting in serious physical injuries.

Resolve the motion with reasons.

Being a distinct cause of action, the action for breach of contract against the
taxicab owner cannot be barred by the criminal action against the taxicab driver,
although the taxicab owner can be held subsidiary liable in the criminal is insolvent.
On the other hand, the civil action for quasi-delict against the driver is an independent
civil action under Article 33 of the Civil Code and Sec. 3, Rule 111 of the Rules of court,
which can be filed separately and can proceed independently of the criminal action and
regardless of the result of the latter. (Samson vs. Daway, 434 SCRA 612 [2004] and
other cases.

PROVISIONAL REMEDY

Katy filed an action against Tyrone for collection of the sum of P1 Million
in the Regional Trial Court, with an ex-parte application for a writ of preliminary
attachment. Upon posting of an attachment bond, the court granted the
application and issued a writ of preliminary attachment.

Apprehensive that Tyrone might withdraw his savings deposit with the
bank, the sheriff immediately served a notice of garnishment on the bank to
implement the writ of preliminary attachment. The following day, the sheriff
proceeded to Tyrone’s house and served him summons, with copies of the
complaint containing the application for writ of preliminary attachment, katy’s

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affidavit, order of attachment, writ of preliminary attachment and attachment
bond.

With fifteen (15 days) days from service of the summons, Tyrone filed a
motion to dismiss and to dissolve the write of preliminary attachment on the
following grounds; (i) the court did not acquire jurisdiction over his person
because the writ was served ahead of the summons; (ii) the writ was improperly
implemented; and (iii) said writ was improvidently issued because the obligation
in question was already fully paid.

Resolve the motion with reasons.

(1) The fact that the writ of attachment was served ahead of the summons did
not affect the jurisdiction of the court over the defendant. The effect is that the writ is
not enforceable. (Sec. 5, Rule 57, 1997 Rules of Civil Procedure.) But, as pointed out by
jurisprudence, all that is needed to be done is to re-serve the writ. (Onare vs. Abrogar,
241 SCRA 659 [1985]).

(2) The writ was improperly implemented. Serving a notice of garnishment,

particularly before summons is served, is not proper. What should be served on the
defendant are a copy of the writ of attachment and notice that the bank deposits
pursuant to the writ. (Sec. 7 [d], Rule 57, 1997 Rules of Civil Procedure.)

(3) The proper remedy where there is payment is a motion to dismiss under
Section 1 (h) Rule 16. A motion to discharge on the ground that the writ was
improvidently issued will not lie, since such a motion would be tantamount to trial on
the merits of the action which cannot be ventilated at a mere hearing of the motion
instead of a regular trial. The merit is only ancillary to the main case. (Sec. 13, Rule 57,
1997 Rules of Civil Procedure, Mindanao Savings & Loans Assoc., Inc. vs. C.A., 172
SCRA 480 [1989]; Davao Light & Power Co. vs. Court of Appeals 204 SCRA 343 [1991]).

CIVIL PROCEDURE

In a complaint for recovery of real property, the plaintiff averred, among

others, that he is the owner of the said property by virtue of a deed of sale
executed by the defendant in his favor. Copy of the deed of sale as appended to
the complaint as Annex “A” thereof.

In his unverified answer, the defendant denied the allegation concerning

the sale of the property in question, as well as the appended deed of sale, for lack
of knowledge or information sufficient to form a belief as to the truth thereof. Is
it proper for the court to render judgment without trial? Explain.

Defendant cannot deny the sale of the property for lack of knowledge or
information sufficient to form a belief to the truth thereof. The answer, being defective,
amounts to an admission. (Phil. Advertising Counselors, Inc. vs. Revilla, 52 SCRA 246
[1973]; Sec. 10, Rule 8, 1997 Rules of Civil Procedure). Moreover, the genuineness and
due execution 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. 8, 1997 Rules of Civil Procedure).

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Hence, a judgment on the pleadings can be rendered by the court without need of a
trial. (Gutierrez vs. Court of Appeals, 74 SCRA 127 [1976]).

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