San Beda College Alabang School of Law

Centralized Bar Operations

FREQUENTLY ASKED QUESTIONS

SYLLABUS FOR THE 2021 BAR EXAMINATIONS

REMEDIAL LAW
 1

SAN BEDA COLLEGE ALABANG

CENTRALIZED BAR OPERATIONS

FREQUENTLY ASKED QUESTIONS

Dr. Ulpiano P. Sarmiento III

Dean and Adviser

Atty. Anna Marie Melanie B. Trinidad

Vice Dean

Atty. Carlo D. Busmente

Prefect of Student Affairs
 2

2021 CENTRALIZED BAR OPERATIONS

Christian Boy Benedict R. Tiangco
Overall Chairperson

Maria Angela Alexandria Albotra

Chairperson for Operations

Fiona Criscelle Federico

Chairperson for Academics

Angelica Felise Manalo

Jolykha Toa L. Sanchez
Deputy for Academics

Joseph Librojo
Chairperson for Academics Operation

Ma. Veronica Malabanan

Chairperson for Secretariat

Maria Concepcion Bañas

Chairperson for Finance

Kate Capulong
Chairperson for Logistics

Marie Czel Ongtangco

Chairperson for Recruitment and Membership

John Argie Mortel

Chairperson for Electronic Data Processing

Kurt Jairus Tañada

Chairperson for Communications

Anna Akiko Abad

Chairperson for Bar Mentoring Program

Louie Ann Someros

Chairperson for Bar Matters
 3

2021 REMEDIAL LAW TEAM 2020 REMEDIAL LAW TEAM

Lady Danica A. Obe Ma. Rosalia S. Ladignon

Subject Head Subject Head

Mary Christine M. Limbo Florence N. Rosete

Assistant Subject Head Jonna Isabel Mesa
Assistant Subject Head

Members Members

Elen Cia P. Aquino Mary Antonette M. Baudi

Adrian Bryan Alamarez
Crystalline R. Campang
Judy Anne B. Cababan
Jerico Art P. Cantolino
Dann Mitzelle S. Dalino
Connie Mai V. Grey
Andrea Nicole C. Pallera
Mary Jashmin G. Serquiña
Arjuna Debi Roxas
Rica Joy C. Rodriguez
Joanna Colleen A. Simbulan
 4

GENERAL PRINCIPLE In Roehr v. Rodriguez (G.R. No. 142820, 20

June 2003), the Supreme Court ruled that
RES JUDICATA divorce decrees obtained by foreigners
in other countries are recognizable in our
Q: Drylvik, a German national, married jurisdiction, but the legal effects thereof,
Dara, a Filipina, in Dusseldorf, Germany. e.g. on custody, care and support of the
When the marriage collapsed, Dara filed children, must still be determined by our
a petition for declaration of nullity of courts. Before our courts can give the
marriage before the RTC of Manila. effect of res judicata to a foreign
Drylvik, on the other hand, was able to judgment, such as the award of custody
obtain a divorce decree from the of the children, it must be shown that the
German Family Court. The decree, in parties opposed to the judgment had
essence, states: been given ample opportunity to do so
on grounds allowed under Rule 39,
The marriage of the Parties Section 50 of the Rules of Court.
contracted on xxx before the Civil
Registrar of Dusseldorf is hereby Rule 39, Section 50 states that “[i]n case
dissolved. The parental custody of of a judgment against a person, the
the children Diktor and Daus is judgment is presumptive evidence of a
granted to the father. right as between the parties and their
successors in interest by a subsequent
Drylvik filed a motion to dismiss in the RTC title; but the judgment may be repelled
of Manila on the ground that the court by evidence of a want of jurisdiction,
no longer had jurisdiction over the matter want of notice to the party, collusion,
as a decree of divorce had already fraud, or clear mistake of law or fact.”
been promulgated dissolving his Thus, in actions in personam, a foreign
marriage to Dara. Dara objected, saying judgment merely constitutes prima facie
that while she was not challenging the evidence of the justness of the claim of a
divorce decree, the case in the RTC still party and, as such, is subject to proof to
had to proceed for the purpose of the contrary.
determining the issue of the children's
custody. Drylvik counters that the issue In this case, the divorce decree issued by
had been disposed of in the divorce the German Family Court merely
decree, thus constituting res judicata. constitutes prima facie evidence and it
must be proven that Dara was given the
Should Drylvik's motion to dismiss be opportunity to challenge the judgment
granted? (2018 Bar Question) of the German court so that there is basis
for declaring that judgment as res
Suggested Answer: No, the motion to
judicata with regard to the rights of
dismiss cannot be granted.
petitioner to have parental custody of
their two children.
 5

Q: Rolando filed a petition for pertains to res judicata in its concept as

declaration of the nullity of his marriage "conclusiveness of judgment" or
to Carmela because of the alleged otherwise known as the rule of auter
psychological incapacity of the latter. action pendant which ordains those
After trial, the court rendered judgment issues actually and directly resolved in a
dismissing the petition on the ground former suit cannot again be raised in any
that Rolando failed to prove the future case between the same parties
psychological incapacity of his wife. The involving a different cause of action. Res
judgment having become final, Rolando judicata in its concept as a bar by prior
filed another petition, this time on the judgment obtains in the present case.
ground that his marriage to Carmela
had been celebrated without a license. In this case petitioner would contend
Is the second action barred by the that the two petitions are anchored on
judgment in the first? Why (2002 Bar separate causes of action: first is the
Question) alleged psychological incapacity of
respondent and the second is the
Suggested Answer; No, the second purported absence of a marriage
action is not barred by the judgment in license.
the first because they are different
Petitioner, however, forgets that he is
causes of action. The first is for annulment
simply invoking different grounds for the
or marriage on the ground of
same cause of action. Therefore, the
psychological incapacity under Article
Court finds then that the present action
36 of the Family Code, while the second
for declaration of nullity of marriage on
is for declaration of nullity of the
the ground of lack of marriage license is
marriage in view of the absence of a
barred. (Mallion v Alcantara (G.R. No.
basic requirement, which Is a marriage
141528, October 31, 2006)
license. [Arts. 9 and 35(3), Family Code].
They are different causes of action
Q: AB. as mother and in her capacity as
because the evidence required to prove
legal guardian of her legitimate minor
them are not the same. [Pagsisfhan v.
son, CD, brought action for support
Court of Appeals, 95 SCRA 540 (1980)
against EF, as father of CD and AB's
and other cases].
lawfully wedded husband. EF filed his
answer denying his paternity with
Alternative Answer: Yes. Section 47 (b) counterclaim for damages.
Rule 39 of Rules of Court pertains to it in Subsequently, AB filed a manifestation
its concept as "bar by prior judgment" or in court that in view of the denial made
"estoppel by verdict," which is the effect by EF, would be futile to pursue the case
of a judgment as a bar to the against EF. AB agreed to move for the
prosecution of a second action upon dismissal of the complaint, subject to
the same claim, demand or cause of the condition that EF will withdraw his
action. On the other hand, Section 47 (c) counterclaim for damages. MB and EF
 6

filed a joint motion to dismiss. The court 7691, exclusive original jurisdiction in civil
dismissed the case with prejudice. Later actions which involve title to, or
on, minor son CD, represented by AB, possession of real property or any interest
filed another complaint for support therein is determined on the basis of the
against EF. EF filed a motion to dismiss on assessed value of the land involved,
the ground of res judicata. whether it should be P20,OOO in the rest
of the Philippines, outside of the Manila
Is res judicata a valid ground for dismissal with courts of the first level or with the-
of the second complaint? Explain your Regional Trial Court. The assessed value
answer. (2000 Bar Question) of the parcel of land in Pampanga is
different from the assessed value of the
Suggested Answer: No, res Judicata is
land in Bulacan. What is involved is not
not a defense in an action for support
merely a matter of venue, which is
even if the first case was dismissed with
waivable, but of a matter of jurisdiction.
prejudice on a Joint motion to dismiss.
However, the action may prosper if
The plaintiff’s mother agreed to the
jurisdiction is not in issue, because venue
dismissal of the complaint for support in
can be waived.
view of the defendants answer denying
his paternity with a counterclaim for
damages. This was in the nature of a NOTE: Regional Trial Courts in civil
compromise of the right of support actions, they will exercise jurisdiction over
which Is prohibited by law. (Art. 2035. civil actions which involve title to, or
Civil Code; De AsIs v. Court of Appeals, possession of real property or any interest
303 SCRA 176 ( 19991]. therein where the assessed value of
property or any interest therein
exceed P400,000.00 EXCEPT for forcible
entry into and unlawful detainer (Sec. 33
JURISDICTION
of B.P. 129 as amended by RA 11576)
Regional Trial Court (RTC) Date of effectivity of RA 11576: August 14,
2021 (not included in the cutoff of Bar
Q: Angelina sued Armando before the 2020/21 Coverage for laws, rules, and
Regional Trial Court (RTC) of Manila to issuances: June 30, 2019)
recover the ownership and possession of
two parcels of land; one situated in Municipal Trial Court (MTC)
Pampanga, and the other
in Bulacan. Q: Filomeno brought an action in the
Metropolitan Trial Court (MeTC) of Pasay
May the action prosper? Explain. (2009 City against Marcelino pleading two
Bar Question) causes of action. The first was a demand
for the recovery of physical possession
Suggested Answer: NO, the action may of a parcel of land situated in Pasay City
not prosper, because under Rep. Act No. with an assessed value of P40,000; the
 7

second was a claim for damages of against Marcelino, with damages.

P500,000 for Marcelino’s unlawful
retention of the property Marcelino filed
NOTE: Under RA 11576, jurisdiction of
a motion to dismiss on the ground that
Metropolitan Trial Courts, Municipal Trial
the total amount involved, which is
Courts in Cities, Municipal Trial Courts,
P540,000, is beyond the jurisdiction of
and Municipal Circuit Trial Courts in civil
the MeTC. Is Marcelino correct? (2008
cases, they will exercise jurisdiction over
Bar Question)
civil actions which involve title to, or
Suggested Answer: No, Marcelino is not possession of real property or any interest
correct. Under Rep. Act No. 7691, therein where the assessed value of
Metropolitan Trial Courts and other property or any interest therein does not
courts of the first level have been vested exceed P400,000.00. (Sec. 33 of B.P. 129
with exclusive original jurisdiction in all as amended by RA 11576)
civil actions which involved title to, or Date of effectivity of RA 11576: August 14,
possession of real property or any 2021 (not included in the cutoff of Bar
interest therein where the assessed 2020/21 Coverage for laws, rules, and
value of the property or interest therein issuances: June 30, 2019)
does not exceed P20,000.00, or in civil
actions in Metro Manila, where such
assessed value does not exceed
P50,000.00 exclusive of interest, INCAPABLE OF PECUNIARY ESTIMATION
damages of whatever kind, attorney’s
Q: Prince Chong entered into a lease
fees, litigation expenses and costs.
contract with King Kong over a
Pasay City where the action for
commercial building where the former
recovery of physical possession was
conducted his hardware business. The
filed, is part of Metro Manila and
lease contract stipulated, among others,
therefore has exclusive jurisdiction over
a monthly rental of P50,000.00 for a four
the parcel of land situated therein
(4)-year period commencing on
whose assessed value is P40,000.00. The
January 1, 2010. On January 1, 2013,
claim for damages of P500,000.00 for
Prince Chong died. Kin Il Chong was
the unlawful retention of the land
appointed administrator of the estate of
involved is not determinative of the
Prince Chong, but the former failed to
court’s jurisdiction which is based on the
pay the rentals for the months of January
nature of the action. The claim for
to June 2013 despite King Kong’s written
damages of P500,000.00 is just a
demands. Thus, on July 1, 2013, King
consequence of the unlawful detention
Kong filed with the Regional Trial Court
of the property subject of the action,
(RTC) an action for rescission of contract
which should not be taken separately
with damages and payment of accrued
from the land. Filomeno has only one
rentals as of June 30, 2013.
cause of action which is the action for
recovery of possession of the land
 8

Can Kin Il Chong move to dismiss the land located in Taytay, Rizal with an
complaint on the ground that the RTC is assessed value of P20.000.00. B moves to
without jurisdiction since the amount dismiss the action on the ground that
claimed is only P300,000.00? (2014 Bar the case should have been brought in
Question) the Regional Trial Court because the
action is one that is not capable of
Suggested Answer: No, Kin Il Chong pecuniary estimation as it involves
cannot move to dismiss the complaint primarily a determination of hereditary
on the ground of lack of jurisdiction. rights and not merely the bare right to
real property.
Settled is the rule in Civil Procedure that
an action for specific performance and
damages is incapable of pecuniary
estimation that falls under the jurisdiction Resolve the motion. (2000 Bar Question)
of the RTC.
Suggested Answer:
Here, the action is for specific
a.) The motion should be granted. The
performance and damages which is
Metropolitan Trial Court of Manila has no
incapable of pecuniary estimation. Thus,
jurisdiction because the action for the
the complaint falls squarely within the
annulment of the extrajudicial
jurisdiction of the RTC, rendering the
foreclosure is not capable of pecuniary
motion to dismiss without merit.
estimation and is therefore under the
jurisdiction of the Regional Trial Courts.
(Russell v. Vestil 304 SCRA 738, (1999).
Q: a.) A brings an action in the
However, the action for annulment is a
Metropolitan Trial Court of Manila
personal action and the venue depends
against B for the annulment of an
on the residence of either A or B. Hence,
extrajudicial foreclosure sale of real
it should be brought in the Regional Trial
property with an assessed value of
Court of the place where either of the
P50.000.00 located in Laguna. The
parties resides.
complaint alleged prematurity of the
sale for the reason that the mortgage b.) The motion should be granted. The
was not yet due. B timely moved to action for partition depends on a
dismiss the case on the ground that the determination of the hereditary rights of
action should have been brought in the A and B, which is not capable of
Regional Trial Court of Laguna. Decide pecuniary estimation. Hence, even
with reasons. (2000 Bar Question) though the assessed value of the land is
P20,000.00, the Municipal Trial Court has
b.) A files an action in the Municipal Trial no jurisdiction. (Russell v. Vestil, supra)
Court against B, the natural son of A’s
father, for the partition of a parcel of
 9

cause of action is the act or omission by

CIVIL PROCEDURE which a party violates a right of another.
[S2 R2]. Here, both suits, the foreclosure
CAUSE OF ACTION and the collection suit, arose from the
SPLITTING A SINGLE CAUSE OF ACTION same cause of action, that is, the non-
payment by Elise of her P3 million loan
Q: Elise obtained a loan of P3 Million from from Merchant Bank. The fact that the
Merchant Bank. Aside from executing a two actions were based on separate
promissory note in favor of Merchant contracts is irrelevant, what matters is
Bank, she executed a deed of real that both actions arose from the same
estate mortgage over her house and lot cause of action.
as security for her obligation. The loan fell
due but remained unpaid; hence, JOINDER AND MISJOINDER OF ACTION
Merchant Bank filed an action against
Elise to foreclose the real estate Q: Perry is a resident of Manila, while
mortgage. A month after, and while the Ricky and Marvin are residents of
foreclosure suit was pending, Merchant Batangas City. They are the co-owners of
Bank also filed an action to recover the a parcel of residential land located in
principal sum of P3 Million against Elise Pasay City with an assessed value of
based on the same promissory note P100,000.00. Perry borrowed PI00,000.00
previously executed by the latter. In from Ricky which he promised to pay on
opposing the motion of Elise to dismiss or before December 1, 2004. However,
the second action on the ground of Perry failed to pay his loan. Perry also
splitting of a single cause of action, rejected Ricky and Marvin's proposal to
Merchant Bank argued that the ground partition the property. Ricky filed a
relied upon by Elise was devoid of any complaint against Perry and Marvin in
legal basis considering that the two the Regional Trial Court of Pasay City for
actions were based on separate the partition of the property. He also
contracts, namely, the contract of loan incorporated in his complaint his action
evidenced by the promissory note, and against Perry for the collection of the
the deed of real estate mortgage. Is latter's PI00,000.00 loan, plus interests and
there a splitting of a single cause of attorney's fees. State with reasons
action? Explain your answer. (2017 Bar whether it was proper for Ricky to join his
Question) causes of action in his complaint for
partition against Perry and Marvin in the
Suggested Answer: Yes, there is a splitting Regional Trial Court of Pasay City. (2005
of a single cause of action. Under the Bar Question)
Rules of Civil Procedure, there is a
splitting of a single cause of action if two Suggested Answer: It was not proper for
or more suits are instituted on the basis of Ricky to join his causes of action against
the same cause of action. [S4 R2]. A Perry in his complaint for partition against
 10

Perry and Marvin. The causes of action party may in one pleading assert as
may be between the same parties, Ricky many causes of action as he may have
and Perry, with respect to the loan but against an opposing party. Under the
not with respect to the partition which totality rule, where the claims in all the
includes Marvin. The joinder is between a causes of action are principally for
partition and a sum of money, but the recovery of money, the aggregate
partition is a special civil action under amount claimed shall be the test of
Rule 69, which cannot be joined. (Sec. 5, jurisdiction. Here the causes of action by
Rule 2, 1997 Rules of Civil Procedure.}. Lender are all against borrower and all
Also, the causes of action pertain to the claims are principally for recovery of
different venues and jurisdictions. The money. Hence the aggregate amount
case for a sum of money pertains to the claimed, which is P500,000 shall be the
municipal court and cannot be filed in test of jurisdiction and thus it is the RTC of
Pasay City because the plaintiff is from Manila which has jurisdiction. Although
Manila while Ricky and Marvin are from the rules on joinder of causes of action
Batangas City. (Sec. 5, Rule 2, 1997 Rules state that the joinder shall not include
of Civil Procedure.) special civil actions, the remedy resorted
to with respect to the third loan was not
Q: Lender extended to Borrower a foreclosure but collection. Hence
P100,000.00 loan covered by a joinder of causes of action would still be
promissory note. Later, Borrower proper.
obtained another P100,000.00 loan
again covered by a promissory note. Still Q: A secured two loans from B, one for P
later, Borrower obtained a P300,000.00 5 0 0 . 0 0 0 . 0 0 and t h e o t h e r f o r
loan secured by a real estate mortgage P1,000,000.00, payable on different
on his land valued at P500,000.00. dates.Both have fallen due. Is B obliged
Borrower defaulted on his payments to file only one complaint against A for
when the loans matured. Despite the recovery of both loans? Explain.
demand to pay the P500,000.00 loan, (1999 Bar Question)
Borrower refused to pay. Lender,
applying the totality rule, filed against Suggested Answer: No. Joinder is only
Borrower with the Regional Trial Court permissive since the loans are separate
(RTC) of Manila, a collection suit for loans which may be governed by the
P500,000.00. Did Lender correctly apply different terms and conditions. The two
the totality rule and the rule on joinder of loans give rise to two separate causes of
causes of action? (2015 Bar Question) action and may be the basis of two
separate complaints
Suggested Answer: Yes, Lender correctly
applied the totality rule and the rule on PARTIES TO CIVIL ACTION
joinder of causes of action. Under the MISJOINDER AND NON JOINDER OF
rule on joinder of causes of action, a PARTIES
 11

Q: Florencio sued Guillermo for partition CROSS CLAIM, THIRD PARTY CLAIM,
of a property they owned in common. COUNTERCLAIM
Guillermo filed a motion to dismiss the
complaint because Florencio failed to Q: A, who is engaged in tile installation
implead Herando and Inocencio, the business, was sued by EE Industries for
other co-owners of the property. As breach of contract for installing different
Judge, will you grant the motion to marble tiles in its offices as provided in
dismiss? Explain. (3%) (2009 Bar Question) their contract. Without filing any motion
to d i s m i s s , A f i l e d i t s Answer w i t h
Suggested Answer: NO, because the Counterclaim theorizing that EE Industries
non-joinder of parties is not a ground for has no legal capacity to sue because it
dismissal of action (Rule 3, Sec. 11). The is not a duly registered corporation. By
motion to dismiss should be denied. way of counterclaim, A asked for moral
and actual damages as her business
Q: Strauss filed a complaint against depleted as a result of the withdrawal
Wagner for cancellation of title. Wagner and cancellation by her clients of their
moved to dismiss the complaint because contracts due to the filing of the case.
Grieg, to whom he mortgaged the The case was dismissed after the trial
property as duly annotated in the TCT, court found that EE Industries is not a
was not impleaded as defendant. (2015 registered corporation and therefore has
Bar Question) no legal capacity to sue. However, it set
a date for the reception of evidence on
b.) If the case should proceed to trial A’s counterclaim. EE Industries opposed
without Grieg being impleaded as a on the ground that the counterclaim
party to the case, what is his remedy to could no longer be prosecuted, in view
protect his interest? of the dismissal of the main case. Is the
stand of EE Industries sustainable?
Suggested Answer: Explain. (1999 Bar Question)

b) The remedy of Grieg is to file a Suggested Answer: No, because if no

motion for leave to intervene. motion to dismiss has been filed, any of
Under Rule 19, a person who has a the grounds for dismissal provided in the
legal interest in the matter in Rules may be pleaded as an affirmative
litigation may intervene in the defense in the answer which may
action. Here Grieg is a mortgagee include a counterclaim. This is what A did
and such fact was annotated in by filing an Answer alleging the lack of
the title. Hence he has a legal legal capacity of EE Industries to sue
interest in the title subject-matter because it is not a duly registered
of the litigation and may thus corporation with a counterclaim for
intervene in the case. damages. The dismissal of the complaint
 12

on this ground is without prejudice to the name. C filed a third party claim over
prosecution of the counterclaim in the said properties claiming that B had
same action because it is a compulsory already transferred the same to him. A
counterclaim. (Sec. 6 of Rule 16.) moved to deny the third-party claim and
to hold B and C jointly and severally
Q: JK’s real property is being attached, liable to him for the money judgment
by the sheriff in a civil action for alleging that B had transferred said
damages against LM. JK claims that he is properties to C to defraud him (A). After
not a party to the case: that his property due hearing, the court denied the third-
is not involved in said case: and that he party claim and rendered an amended
is the sole registered owner of said decision declaring B and C jointly and
property. Under the Rules of Court, what severally liable to A for the money
must JK do to prevent the Sheriff from judgment. Is the ruling of the court
attaching his property? (2000 Bar correct? Explain. (2005 Bar Question)
Question)
Suggested Answer: No. C has not been
Suggested Answer: If the real property properly impleaded as a party
has been attached, the remedy is to file defendant. He cannot be held liable for
a third-party claim. The third-party the judgment against A without a trial. In
claimant should make an affidavit of his fact, since no bond was filed by B, the
title to the property attached, stating the sheriff is liable to C for damages. C can
grounds of his title thereto, and serve file a separate action to enforce his third-
such affidavit upon the sheriff while the party claim. It is in that suit that B can
latter has possession of the attached properly raise the ground of fraud
property, and a copy thereof upon the against C. However, the execution may
attaching party. (Sec. 14, Rule 57, 1997 proceed where there is a finding that the
Rules of Civil Procedure.) The third party claim is fraudulent. (Tanonga v. Samson,
claimant may also intervene or file a 382 SCRA 130 [2002]). Besides, the
separate action to vindicate his claim to judgment is already final.
the property involved and secure the
necessary reliefs, such as preliminary EFFECT OF DEATH OF A PARTY
injunction, which will not be considered
as interference with a court of Q: Chika sued Gringo, a Venezuelan, for
coordinate Jurisdiction. (Ong v. Tating) a sum of money. The Metropolitan Trial
Court of Manila (MeTC) rendered a
Q: A obtained a money judgment decision ordering Gringo to pay Chika
against B. After the finality of the P50,000.00 plus legal interest. During its
decision, the court issued a writ of pendency of the appeal before the RTC,
execution for the enforcement thereof. Gringo died of acute hemorrhagic
Conformably with the said writ, the sheriff pancreatitis. Atty. Perfecto, counsel of
levied upon certain properties under B’s Gringo, filed a manifestation attaching
 13

the death certificate of Gringo and appeal to the Court of Appeals?

informing the RTC that he cannot Explain.
substitute the heirs since Gringo did not 3. In the same case, what is the
disclose any information on his family. As effect if B died before the RTC has
counsel for Chika, what remedy can you rendered judgment?
recommend to your client so the case
can move forward and she can Suggested Answer:
eventually recover her money? Explain. 1. No, because the action will not be
(2016 Bar Question) dismissed but shall instead be allowed to
continue until entry of final judgment.
Suggested Answer: The remedy I can (Id.)
recommend to my client Chika is to file a 2. No. If A died while the case was
petition for settlement of the estate of already on appeal in the Court of
Gringo and for the appointment of an Appeals, the case will continue because
administrator. Chika as a creditor is an there is no entry yet of final judgment.
interested person who can file the (Id.)
petition for settlement of Gringo’s estate. 3. The effect is the same. The action will
Once the administrator is appointed, I not be dismissed but will be allowed to
will move that the administrator be continue until entry of final judgment.
substituted as the defendant. I will also (Id.)
file my claim against Gringo as a
contingent claim in the probate PLEADINGS
proceedings pursuant to Rule 86 of the
Rules of Court CERTIFICATE AGAINST FORUM SHOPPING

Q: Certification Against Forum

Q: When A (buyer) failed to pay the ShoppingAs counsel for A, B, C and D.
remaining balance of the contract price Atty. XY prepared a complaint for
after it became due and demand- able, recovery of possession of a parcel of
B (seller) sued him for collection before land against Z. Before filing the
the RTC. After both parties submitted complaint, XY discovered that his clients
their respective evidence, A perished in were not available to sign the
a plane accident. Consequently, his certification of non-forum shopping. To
heirs brought an action for the avoid further delays in the filing of the
settlement of his estate and moved for complaint, XY signed the certification
the dismissal of the collection suit. (1999 and immediately filed the complaint in
Bar Question) court. Is XY Justified in signing the
certification? Why? (2000 Bar Question)
1. Will you grant the motion? Explain.
2. Will your answer be the same if A Suggested Answer: No. counsel cannot
died while the case is already on sign the anti-forum shopping certification
 14

because it must be executed by the raised by the defendant Bank‟s Answer

“plaintiff or principal party" himself (Sec. was not predicated on the plaintiff‟s
5. Rule 7, 1997 Rules of Civil Procedure; claim or cause of action, it is considered
Escorpizo v. University of Baguio, 306 a permissive counterclaim. In which
SCRA 497. (1999]). since the rule requires case, it would partake an initiatory
personal knowledge by the party pleading which requires a certification
executing the certification, unless against forum shopping.
counsel gives a good reason why he is Correspondingly, the motion to dismiss
not able to secure his clients’ signatures based on lack of the required certificate
and shows that his clients will be against forum shopping should be
deprived of substantial Justice {Ortiz v. granted.
Court of Appeals, 299 SCRA 708,11998])
or unless he is authorized to sign It by his Q: Mr. Humpty filed with the Regional Trial
clients through a special power of Court (RTC) a complaint against Ms.
attorney. Dumpty for damages. The RTC, after due
proceedings, rendered a decision
Q: RC filed a complaint for annulment of granting the complaint and ordering Ms.
the foreclosure sale against Bank V. In its Dumpty to pay damages to Mr. Humpty.
answer, Bank V set up a counterclaim for Ms. Dumpty timely filed an appeal
actual damages and litigation expenses. before the Court of Appeals (CA),
RC filed a motion to dismiss the questioning the RTC decision.
counterclaim on the ground that Bank Meanwhile, the RTC granted Mr.
V’s Answer with Counterclaim was not Humpty’s motion for execution pending
accompanied by a certification against appeal. Upon receipt of the RTC’s order
forum shopping. Rule. (2007 Bar granting execution pending appeal, Ms.
Question) Dumpty filed with the CA another case,
this time a special civil action for
Suggested Answer: A certification certiorari assailing said RTC order. Is there
against forum shopping is required only in a violation of the rule against forum
initiatory pleadings. In this case, the shopping considering that two (2)
counterclaim pleaded in the actions emanating from the same case
defendant‟s Answer appears to have with the RTC were filed by Ms. Dumpty
arisen from the plaintiff‟s complaint or with the CA? Explain. (2014 Bar Question)
compulsory in nature and thus, may not
be regarded as an initiatory pleading. Suggested Answer: No, there is no
The absence thereof in the Bank‟s violation of the rule against forum
Answer is not a fatal defect. Therefore, shopping. Forum shopping applies where
the motion to dismiss on the ground two or more initiatory pleadings were
raised lacks merit and should be denied filed by the same party. This is discernible
(UST v. Suria, 294 SCRA 382 [1998]). On from the use of the phrase “commenced
the other hand, if the counterclaim any action or filed any claim” in S5 R7.
 15

Here the first case involves the filing by action or defense, the signature of only
Ms. Dumpty of a notice of appeal which one of them in the certification against
is not an initiatory pleading. Hence there forum shopping substantially complies
is no forum shopping. with the Rule. (Jacinto v. Gumaru, 2 June
2014). Here the Petitioners have a
Q: Tailors Toto, Nelson and Yenyen filed a common interest and invoke a common
special civil action for certiorari under cause of action, that is, their illegal
Rule 65 from an adverse decision of the dismissal by Empire Textile Corporation
National Labor Relations Commission for failure to meet production quotas.
(NLRC) on the complaint for illegal
dismissal against Empire Textile
Corporation. They were terminated on DEFAULT
the ground that they failed to meet the
prescribed production quota at least Q: Circe filed with the RTC a complaint
four (4) times. The NLRC decision was for the foreclosure of real estate
assailed in a special civil action under mortgage against siblings Scylla and
Rule 65 before the Court of Appeals Charybdis, co-owners of the property
(CA). In the verification and certification and cosignatories to the mortgage
against forum shopping, only Toto signed deed. The siblings permanently reside in
the verification and certification, while Athens, Greece. Circe tipped off Sheriff
Atty. Arman signed for Nelson. Empire Pluto that Scylla is on a balikbayan trip
filed a motion to dismiss on the ground of and is billeted at the Century Plaza Hotel
defective verification and certification. in Pasay City. Sheriff Pluto went to the
Decide with reasons. (2016 Bar Question) hotel and personally served Scylla the
summons, but the latter refused to
Suggested Answer: The motion to dismiss receive summons for Charybdis as she
on the ground of defective verification was not authorized to do so. Sheriff Pluto
should be denied. The Supreme Court requested Scylla for the email address
has held that a lawyer may verify a and fax number of Charybdis which the
pleading in behalf of the client. latter readily gave. Sheriff Pluto, in his
Moreover a verification is merely a formal return of the summons, stated that
and not a jurisdictional requirement. The "Summons for Scylla was served
court should not dismiss the case but personally as shown by her signature on
merely require the party concerned to the receiving copy of the summons.
rectify the defect. The motion to dismiss Summons on Charybdis was served
on the ground of defective certification pursuant to the amendment of Rule 14
against forum-shopping should likewise by facsimile transmittal of the summons
be denied. Under reasonable or and complaint on defendant's fax
justifiable circumstances, as when all the number as evidenced by transmission
plaintiffs or petitioners share a common verification report automatically
interest and invoke a common cause of generated by the fax machine
 16

indicating that it was received by the fax

number to which it was sent on the date
and time indicated therein.” Circe, sixty Q: Laura was the lessee of an apartment
(60) days after her receipt of Sheriff unit owned by Louie. When the lease
Pluto's return, filed a Motion to Declare expired, Laura refused to vacate the
Charybdis in default as Charybdis did not property. Her refusal prompted Louie to
file any responsive pleading. (2015 Bar file an action for unlawful detainer
Question) against Laura who failed to answer the
complaint within the reglementary
Scylla seasonably filed her answer setting period. Louie then filed a motion to
forth therein as a defense that Charybdis declare Laura in default. Should the
had paid the mortgage debt. motion be granted? Explain your answer.
(2017 Bar Question)
b.) On the premise that Charybdis was
properly declared in default, what is the Suggested Answer: No, a Motion to
effect of Scylla's answer to the declare the defendant in default is a
complaint? prohibited motion in ejectment cases
pursuant to S13.8 R70.
Suggested Answer:
DEFAULT REMEDY

b.) The effect of Scylla’s answer to the Q: For failure of KJ to file an answer within
complaint is that the court shall try the the reglementary period, the Court,
case against both Scylla and Charybdis upon motion of LM, declared KJ in
upon the answer filed by Scylla. Under default. In due time, KJ filed an unverified
Section 3(c) of Rule 9, when a pleading motion to lift the order of default without
asserting a claim states a common an affidavit of merit attached to it. KJ
cause of action against several however attached to the motion his
defending parties, some of whom answer under oath, stating in said answer
answer and the others fail to do so, the his reasons for his failure to file an answer
court shall try the case against all upon on time, as well as his defenses. Will the
the answers thus filed and render motion to lift the order of default
judgment upon the evidence presented. prosper? Explain. (2000 Bar Question)
Here there was a common cause of
action against Scylla and Charybdis Suggested Answer:
since both were co-signatories to the Yes, there is substantial compliance with
mortgage deed. Hence the court should the rule. Although the motion is
not render judgment by default against unverified, the answer attached to the
Charybdis but should proceed to try the motion is verified. The answer contains
case upon the answer filed and the what the motion to lift the order of
evidence presented by Scylla. default and the affidavit Of merit should
 17

contain, which are the reasons for reglementary period to file a responsive
movant's failure to answer as well as his pleading was not tolled. Carlos was not
defenses. (Sec. 3 (bjof Rule 9, 1997 Rules duty bound to submit an Answer.
of Civil Procedure; Cf. Citibank, N.A. v. Moreover, Carlos submitted a verified
Court of Appeals, 304 SCRA 679, [19991; answer. It is better to decide a case on
Consul v. Consul. 17 SCRA 667, 671 the merits than on sheer technicality.
(19661; Tolentino v. Carlos, 66 Phil. 140,
143-144 (19381, Nasser v. Court of AMENDMENTS
Appeals, 191 SCRA 783 (19921). Q: During trial, plaintiff was able to
present, without objection on the part of
Q: Tina Guerrero filed with the Regional defendant in an ejectment case,
Trial Court of Biñan, Laguna, a complaint evidence showing that plaintiff served
for sum of money amounting to PI Million on defendant a written demand to
against Carlos Corro. The complaint vacate the 'subject property before the
alleges, among others, t1 at Carlos commencement of the suit, a matter not
borrowed from Tina the said amount alleged or otherwise set forth in the
evidenced by a promissory note signed pleadings on file. May the corresponding
by Carlos and his wife, jointly and pleading still be amended to conform to
severally. Carlos was served with the evidence? Explain. (2004 Bar
summons which was received by Linda, Question)
his secretary. However, Carlos failed to
file an answer to the complaint within the Suggested Answer:
15-day reglementary period. Hence, Tina A. Yes. The corresponding pleading may
filed with the court a motion to declare still be amended to conform to the
Carlos in default and to allow her to evidence, because the written demand
present evidence ex parte. Five days to vacate, made prior to the
thereafter, Carlos filed his verified answer commencement of the ejectment suit,
to the complaint, denying under oath was presented by the plaintiff in
the genuineness and due execution of evidence without objection on the part
the promissory note; and contending of the defendant. Even if the demand to
that he has fully paid his loan with interest vacate was jurisdictional, still, the
at 12% per annum. amendment proposed was to conform
to the evidence that was already in the
a. If you were the judge, will you grant record and not to confer jurisdiction on
Tina’s motion to declare Carlos in the court, which is not allowed. Failure to
default? (2006 Bar Question) amend, however, does not affect the
result of the trial on these issues. (Sec. 5 of
Suggested Answer: No, I will not grant Rule 10).
Tina’s motion to declare Carlos in
default. Considering that there was no Alternative Answer: It depends. In
proper service of summons, the forcible entry, the motion may be
 18

allowed at the discretion of the court,

the demand having been presented at Suggested Answer: No, the complaint
the trial without objection on the part of may not be amended under the
the defendant. In unlawful detainer, circumstances. A complaint may be
however, the demand to vacate is amended as of right before answer (Sec.
jurisdictional and since the court did not 2, Rule 10; See Ong Peng vs. Custodio,
acquire jurisdiction from the very G.R. No. 14911, 12 March 1961; Toyota
beginning, the motion to conform to the Motors [Phils} vs. C.A., G.R. No. 102881, 07
evidence cannot be entertained. The December 1992; RCPI vs. C.A., G.R. No.
amendment cannot be allowed 121397, 17 April 1997, citing Prudence
because it will in effect confer jurisdiction Realty & Dev‟t. Corp. vs. C.A., G.R. No.
when there is otherwise no jurisdiction. 110274, 21 March 1994; Soledad vs.
Mamangun, 8 SCRA 110), but the
amendment should refer to facts which
Q: Arturo lent P1M to his friend Robert on occurred prior to the filing of the original
the condition that Rober execute a complaint. It thus follows that a
promissory note for the loan and a real complaint whose cause of action has
estate mortgage over his property not yet accrued cannot be cured or
located in Tagaytay City. Rober remedied by an amended or
complied. In his promissory note dated supplemental pleading alleging the
September 20, 2006, Robert undertook to existence or accrual of a cause of action
pay the loan within a year from its date while the case is pending (Swagman
at 12% per annum interest. In June 2007, Hotels & Travel, Inc. vs. C.A., G.R. No.
Arturo requested Robert to pay ahead of 161135, 08 April 2005).
time but the latter refused and insisted on
the agreement. Arturo issued a demand (b) Would your answer be different had
letter and when Robert did not comply, Arturo filed instead a supplemental
Arturo filed an action to foreclose the complaint stating that the debt became
mortgage. Robert moved to dismiss the due after the filing of the original
complaint for lack of cause of action as complaint?
the debt was not yet due. The resolution
of the motion to dismiss was delayed Suggested Answer: A supplemental
because of the retirement of the Judge. complaint may be filed with leave of
(a) On October 1, 2007, pending court to allege an event that arose after
resolution of the motion to dismiss, Arturo the filing of the original complaint that
filed an amended complaint alleging should have already contained a cause
Robert’s debt had in the meantime of action (Sec. 6, Rule 10). However, if no
become due but that Robert still refused cause of action is alleged in the original
to pay. Should the amended complaint complaint, it cannot be cured by the
be allowed considering that no answer filing of a supplement or amendment to
has been filed? (2008 Bar Question) allege the subsequent acquisition of a
 19

cause of action (Swagman Hotels & remember the exact amount since no
Travel, Inc. vs. C.A., G.R. No. 161135, 08 copies of the documents were attached
April 2005). to the complaint. They nevertheless
claimed that they made previous
Q: Upon termination of the pre-trial, the payments in the amounts of PhP110,000
judge dictated the pre-trial order in the and PhP20,000 and that they were willing
presence of the parties and their to pay the balance of their indebtedness
counsel, reciting what had transpired after account verification. In a written
and defining three (3) issues to be tried. manifestation, spouses Demapilis stated
(a) If, immediately upon receipt of his that, in order to buy peace, they were
copy of the pre-trial order, plaintiff’s willing to pay the sum of PhP250,000, but
counsel should move for its amendment without interests and costs.
to include a fourth (4th) triable issue Subsequently, Daribell filed a Motion for
which he allegedly inadvertently failed partial summary judgment. Thereafter,
to mention when the judge dictated the Daribell filed an amended complaint,
order. Should the motion to amend be alleging that the total purchases of
granted? Reasons. (2009 Bar Question) construction materials were PhP280,000
and only PhP20,000 had been paid.
Suggested Answer: Depending on the Daribell also served upon the spouses
merit of the issue sought to be brought in Demapilis a request for admission asking
by the amendment, the motion to them to admit the genuineness of the
amend may be granted upon due statement of accounts, delivery receipts,
hearing. It is a policy of the Rules that and invoices, as well as the value of the
parties should be afforded a reasonable principal obligation and the amount
opportunity to bring about a complete paid as stated in the -amended
determination of the controversy complaint. Daribell thereafter amended
between them, consistent with the complaint anew. The amendment
substantial justice. With this end in view, modified the period covered and
the amendment before trial may be confirmed the partial payment of
granted to prevent manifest injustice. PhP110,000 but alleged that this
The matter is addressed to the sound and payment was applied to the spouses’
judicious discretion of the trial court. other existing obligations. Daribell
however reiterated that the principal
Q: Daribell Inc. (Daribell) filed a amount remained unchanged.
complaint for a sum of money and
damages against spouses Dake and a. Is the request for admission deemed
Donna Demapilis for unpaid purchases abandoned or withdrawn by the filing of
of construction materials in the sum of the second amended complaint? (2018
PhP250,000. In their answer, spouses Bar Question)
Demapilis admitted the purchases from
Daribell, but alleged that they could not
 20

Suggested Answer: a. No. The second Was there a valid service of summons
amended complaint merely supersedes upon Buboy? Explain your answer briefly.
the first amended complaint and (2017 Bar Question)
nothing more, pursuant to Rule 10, Suggested Answer: No, there was no
Section 8 of the Rules of Court; thus, the valid service of summons upon Buboy.
Request for Admission is not deemed The Supreme Court has held that in order
abandoned or withdrawn by the filing of that there will be valid substituted service
of summons, the sheriff must have
the Second Amended Complaint
exerted diligent efforts to effect personal
(Spouses Villuga v. Kelly Hardware and service of summons within a reasonable
Construction Supply, Inc., G.R. No. time. Here there were no such diligent
176570, July 18, 2012). efforts on the part of the sheriff since he
effected substituted service on his very
(b) Can the amendment of the first try. Hence there was no valid service
complaint be allowed if it substantially of summons upon Buboy.
alters the cause of action? (2018 bar
Question)
SERVICE BY PUBLICATION

Suggested Answer: (b) Such Q: Lani filed an action for partition and
amendment could still be allowed when accounting in the Regional Trial Court
(RTC) of Manila against her sister Mary
it is sought to serve the higher interest of
Rose, who is a resident of Singapore and
substantial justice, prevent delay, and is not found in the Philippines. Upon
secure a just, speedy and inexpensive motion, the court ordered the
disposition of actions and proceedings Publication of the summons for three
(Spouses Valenzuela v. Court of Appeals, weeks in local tabloid, Bulgar. Linda, an
G.R. No. 131175, August 28, 2001). The OFW vacationing in the Philippines, saw
amended complaint may be allowed if the summons in Bulgar and brought a
copy of the tabloid when she returned to
it will not prejudice the rights of the
Singapore. Linda showed the tabloid
parties. and the page containing the summons
to Mary Rose, who said, "Yes I know, my
SUMMONS kumara Anita scanned and e-mailed
SUBSTITUTED SERVICE that page of Bulgar to me!"

Q: Teddy filed against Buboy an action Did the Court acquire jurisdiction over
for rescission of a contract for the sale of Mary Rose? (2008 Bar Question)
a commercial lot. After having been told
by the wife of Buboy that her husband
was out of town and would not be back Suggested Answer: Partition is an action
until after a couple of days, the sheriff quasi in rem. Summons by publication is
requested the wife to just receive the proper when the defendant does not
summons in behalf of her husband. The reside and is not found in the Philippines,
wife acceded to the request, received provided that a copy of the summons
the summons and a copy of the and order of the court are sent by
complaint, and signed for the same. registered mail to the last known address
 21

of the defendant (Sec. 15, Rule 14). when the bank filed an answer without
Publication of the notice in Bulgar, a raising improper venue as an issue after
newspaper of general circulation, its first motion to dismiss was denied.
satisfies the requirements of summons by
publication. (Perez v. Perez, G.R. No. Under the "omnibus motion rule" (Rule 15,
145368, 28 March 2005) Sec. 8, Rules of Court) which governs the
bank's motion to dismiss, such motion
should include all objections then
available; otherwise, all objections not so
MOTIONS included shall be deemed waived.
OMNIBUS MOTION RULE Although the improper venue became
known only in the course of the trial, the
same should not be allowed to obstruct
Q: Charisse, alleging that she was a or disturb the proceedings since the
resident of Lapu-Lapu City, filed a venue of civil actions is defined for the
complaint for damages against Atlanta convenience of the parties, any
Bank before the RTC of Lapu Lapu City, jurisdictional.
following the dishonor of a check she
drew in favor of Shirley against her
current account which she maintained in Alternative Answer: The "omnibus motion
the bank's local branch. The bank filed a rule" should not apply, because the
Motion to Dismiss the complaint on the improper venue became known and
ground that it failed to state a cause of thus available only to the movant bank
action, but it was denied. It thus filed an after the motions to dismiss were filed
Answer. and resolved by the court, and in the
course of the trial of the case. In fairness
In the course of trial, Charisse admitted to the defendant bank, it should not be
that she was a US citizen residing in Los precluded by the "omnibus motion rule"
Angeles, California and that she was from raising objection to the improper
temporarily billeted at the Pescado Hotel venue only when said ground for
in Lapu-Lapu City, drawing the bank to objection became known to it.
file another motion to dismiss, this time on
the ground of improper venue, since The court may not resolve second the
Charisse is not a resident of Lapu-Lapu motion to dismiss precisely because of
City. the "omnibus motion rule", since the bank
filed an earlier motion to dismiss but did
Charisse opposed the motion citing the not raise the ground of improper venue,
"omnibus motion rule." Rule on the and subsequently filed an Answer
motion. (2010 Bar Question) wherein the improper venue has not
again been raised. Hence, the question
of improper venue has become moot
Suggested Answer: The bank's second and academic.
motion to dismiss which is grounded on
improper venue, should be denied. The The only grounds not barred by the
improper venue of an action is deemed "omnibus motion rule" are lack of
waived by the bank's filing an earlier jurisdiction over the subject matter; (b)
motion to dismiss without raising litis pendencia; and (c) bar by prior
improper venue as an issue, and more so judgment or by statute of limitations.
 22

accordingly prayed for P50,000

damages.
(b) Suppose Charisse did not raise the
“omnibus motion rule,” can the judge
proceed to resolve the motion to a) Benjamin soon after moved for the
dismiss? Explain. dismissal of the case. The trial court
accordingly dismissed the complaint.
And it also dismissed the Counterclaim.
Suggested Answer: Yes, the judge can Mercedes moved for a reconsideration
proceed to resolve the motion to dismiss,
of the dismissal of the Counterclaim. Pass
because the ground raised therefore
upon Mercedes’ motion.
became known to the movant only
during the trial, such that it was only then
that the objection became available to b) Suppose there was no Counterclaim
him. and Benjamin’s complaint was not
dismissed, and judgment was rendered
against Mercedes for P1,000,000. The
DISMISSAL OF ACTIONS
judgment became final and executory
and a writ of execution was
DISMISSAL OF COUNTERCLAIM, CROSS-
correspondingly issued. Since Mercedes
CLAIM OR THIRD PARTY COMPLAINT
did not have cash to settle the judgment
debt, she offered her Toyota Camry
Q: Antique dealer Mercedes borrowed
model 2008 valued at P1.2 million. The
P1,000,000 from antique collector
Sheriff, however, on request of Benjamin,
Benjamin. Mercedes issued a postdated
seized Mercedes’ 17th century ivory
check in the same amount to Benjamin
image of the La Sagrada Familia
to cover the debt. On the due date of
estimated to be worth over P1,000,000.
the check, Benjamin deposited it but it
Was the Sheriff’s action in order? (2010
was dishonored. As despite demands,
Bar Question)
Mercedes failed to make good the
check, Benjamin filed in January 2009 a
Suggested Answer: Mercedes‟ Motion
complaint for collection of sum of money
for Reconsideration is impressed with
before the RTC of Davao. Mercedes filed
merit: the trial courts should not have
in February 2009 her Answer with
dismissed her counter-claim despite the
Counterclaim, alleging that before the
dismissal of the Complaint. Since it was
filing of the case, she and Benjamin had
the plaintiff (Benjamin) who moved for
entered into a dacion en pago
the dismissal of his Complaint, and at a
agreement in which her vintage
time when the defendant (Mercedes)
P1,000,000 Rolex watch which was taken
had already filed her Answer thereto and
by Benjamin for sale on commission was
with counterclaim, the dismissal of the
applied to settle her indebtedness; and
counterclaim without conformity of the
that she incurred expenses in defending
defendant-counterclaimant. The
what she termed a "frivolous lawsuit." She
Revised Rules of Court now provides in
 23

Rule 17, Sec. 2 thereof that “If a Court in Republic vs. Court of Appeals
counterclaim has been pleaded by a and Molina (268 SCRA 198.)
defendant prior to the service upon him
of the plaintiff’s motion for dismissal, the
Q: Ms. A filed a complaint for damages
dismissal shall be limited to the against Ms. B, alleging that Ms. B
complaint. The dismissal shall be without negligently caused the demolition of her
prejudice to the right of the defendant to house's concrete fence, the top half of
prosecute his counterclaim. which fell on the front portion of Ms. A's
car and permanently damaged its
JUDGMENTS AND FINAL ORDERS engine. In her answer, Ms. B denied any
personal liability for the damage caused
JUDGMENT ON THE PLEADINGS to Ms. A's car, averring that she merely
acquiesced to the advice of her
Q: contractor, XYZ Construction Co., to
have the concrete fence demolished.
1) A brought an action against her Thus, damages, if any, should be
husband B for annulment of their collected from it. Thereafter, Ms. A filed a
marriage on the ground of motion for judgment on the pleadings,
psychological incapacity. B Filed alleging that Ms. B's statement in her
his Answer to the Complaint answer is actually a negative pregnant.
admitting all the allegations Ms. B opposed the motion, reiterating her
therein contained. May A move defense in her answer which purportedly
for judgment on the pleadings? rendered judgment on the pleadings
Explain. (1999 Bar Question) improper. Ms. B also moved for the
dismissal of the case on the ground of
Suggested Answer: non-joinder of XYZ Construction Co.,
which she alleged is an indispensable
1) No, because even if B’s answer party to the case.
to A’s complaint for annulment of
their marriage admits all the a) Is Ms. A's motion for judgment on the
allegations therein contained, pleadings proper? Explain. (2019 Bar
the material facts alleged in the Question)
complaint must always be
proved. (Sec. 1 of Rule 34.) Suggested Answer: a) Yes, Ms. A’s motion
for judgment on the pleadings is proper.
Alternative Answer: Under the Rules of Civil Procedure, a
3) No. The court shall order the judgment on the pleadings is proper if
prosecutor to investigate whether or not the defendant’s answer admits the
a collusion between the parties exists, material allegations of the adverse
and if there is no collusion, to intervene party’s pleading. Here the Defendant
for the State in order to see to it that the Ms. B’s answer that she merely
evidence submitted is not fabricated. acquiesced to the advice of her
(Sec. 3[E], R9) Evidence must have to be contractor XYZ Construction Company
presented in accordance with the does not specifically deny whether she
requirements set down by the Supreme was negligent or not. Hence Ms. B is
deemed to have admitted the material
allegation that she was negligent and
 24

thus a judgment on the pleadings is Q: Daribell Inc. (Daribell) filed a

proper. complaint for a sum of money and
damages against spouses Dake and
Donna Demapilis for unpaid purchases
SUMMARY JUDGMENTS of construction materials in the sum of
PhP250,000. In their answer, spouses
Q: Modesto sued Ernesto for a sum of Demapilis admitted the purchases from
money, claiming that the latter owed Daribell, but alleged that they could not
him P1 million, evidenced by a remember the exact amount since no
promissory note, quoted and attached copies of the documents were attached
to the complaint. In his answer with to the complaint. They nevertheless
counterclaim, Ernesto alleged that claimed that they made previous
Modesto coerced him into signing the payments in the amounts of PhP110,000
answer with counterclaim, but that it is and PhP20,000 and that they were willing
Modesto who really owes him P1.5 to pay the balance of their indebtedness
million. Modesto filed an answer to after account verification. In a written
Ernesto’s counterclaim admitting the he manifestation, spouses Demapilis stated
owed Ernesto, but only in the amount of that, in order to buy peace, they were
P0.5 million. At the pre-trial, Modesto willing to pay the sum of PhP250,000, but
marked and identified Ernesto's without interests and costs.
promissory note. He also marked and Subsequently, Daribell filed a Motion for
identified receipts covering payments partial summary judgment. Thereafter,
he made to Ernesto, to the extent of Daribell filed an amended complaint,
P0.5-million, which Ernesto did not alleging that the total purchases of
dispute. construction materials were PhP280,000
and only PhP20,000 had been paid.
After pre-trial, Modesto filed a motion for Daribell also served upon the spouses
judgment on the pleadings, while Demapilis a request for admission asking
Ernesto filed a motion for summary them to admit the genuineness of the
judgment on his counterclaim. Resolve statement of accounts, delivery receipts,
the two motions with reasons. (2009 Bar and invoices, as well as the value of the
Question). principal obligation and the amount
paid as stated in the -amended
Suggested Answer: Likewise, Ernesto’s complaint.
motion for summary judgment should Daribell thereafter amended the
be denied because there is an issue of complaint anew. The amendment
fact — the alleged coercion — raise cf modified the period covered and
by Ernesto which he has yet to prove in confirmed the partial payment of
a trial on its merits. It is axiomatic that PhP110, 000 but alleged that this
summary judgment is not proper or valid payment was applied to the spouses’
when there is an issue of fact remaining other existing obligations. Daribell
which requires a hearing. And this is so however reiterated that the principal
with respect to the coercion alleged by amount remained unchanged.
Ernesto as his defense, since coercion is
not capable of being established by (c) Can the facts subject of an
documentary evidence. unanswered request for admission be the
basis of a summary judgment? (2018 Bar
Question)
 25

Suggested Answer: Yes. Summary Q: Tom Wallis filed with the Regional Trial
judgment is a procedural device Court (RTC) a Petition for Declaration of
resorted to in order to avoid long drawn- Nullity of his marriage with Debi Wallis on
out litigations, and useless delays. Such the ground of psychological incapacity
judgment is generally based on the facts of the latter. Before filing the petition,
proven summarily by affidavits, de Tom Wallis had told Debi Wallis that he
positions, pleadings, or admissions of the wanted the annulment of their marriage
parties [Villuga v. Kelly Hardware and because he was already fed up with her
Construction Supply, Inc., G.R. No. irrational and eccentric behaviour.
176570, (2012)]. However, in the petition for declaration
of nullity of marriage, the correct
In this case, the facts subject of an residential address of Debi Wallis was
unanswered request for admission are deliberately not alleged and instead, the
deemed admissions by the adverse residential address of their married son
party (S2, R26). Applying the Supreme was stated. Summons was served by
Court’s ruling in Spouses Villuga v. Kelly substituted service at the address stated
Hardware and Construction Supply, Inc. in the petition. For failure to file an
(G.R. No. 176570, 18 July 2012), these answer, Debi Wallis was declared in
facts may be the basis of a summary default and Tom Wallis presented
judgment. evidence ex-parte. The RTC rendered
judgment declaring the marriage null
and void on the ground of psychological
ANNULMENT OF JUDGMENTS OR FINAL incapacity of Debi Wallis. Three (3) years
ORDERS AND RESOLUTIONS after the RTC judgment was rendered,
Debi Wallis got hold of a copy thereof
Q: A default judgment was rendered by and wanted to have the RTC judgment
the RTC ordering D to pay P a sum of reversed and set aside.
money. The judgment became final, but
D filed a petition for relief and obtained If you are the lawyer of Debi Wallis, what
a writ of preliminary injunction staying the judicial remedy or remedies will you
enforcement of the judgment. After take? Discuss and specify the ground or
hearing, the RTC dismissed D's petition, grounds for said remedy or remedies.
whereupon P immediately moved for the (2014 Bar Question)
execution of the judgment in his favor.
Should P’s motion be granted? Why? Suggested Answer: If I were the lawyer of
(2002 Bar Question) Debi Wallis, the judicial remedy I would
take is to file with the Court of Appeals an
Suggested Answer: P’s immediate action for annulment of the RTC
motion for execution of the judgment in judgment under Rule 47. An action for
his favor should be granted because the annulment of judgment may be resorted
dismissal of D’s petition for relief also to since the remedies of appeal and
dissolves the writ of preliminary injunction petition for relief are no longer available
staying the enforcement of the through no fault of Debi Wallis. (S1 R47).
judgment, even if the dismissal is not yet The ground for annulment of judgment
final. [Golez v. Leonidas, 107 SCRA 187 would be lack of jurisdiction. Lack of
(1981)]. jurisdiction also covers lack of jurisdiction
over the person of the defendant since
the judgment would be void. (1 FLORENZ
 26

D. REGALADO, REMEDIAL LAW to his name. A few years thereafter,

COMPENDIUM 558 [7th rev. ed., 3 rd when he already had the funds to pay
printing]). for the transfer costs, Dempsey went to
the Register of Deeds of Dumaguete and
Q: Santa filed against Era in the RTC of discovered that, after the sale, Daria had
Quezon City an action for specific filed a petition for reconstitution of the
performance praying for the delivery of owner’s duplicate copy of TCT No. 777
a parcel of land subject of their which the RTC granted. Thus, unknown to
contract of sale. Unknown to the parties, Dempsey, Daria was able to secure a
the case was inadvertently raffled to an new TCT in her name.
RTC designated as a special
commercial court. Later, the RTC What is Dempsey’s remedy to have the
rendered judgment adverse to Era, reconstituted title in the name of Daria
who, upon realizing that the trial court nullified? (2018 Bar Question)
was not a regular RTC, approaches you
and wants you to file a petition to have Suggested Answer: Dempsey may file a
the judgment annulled for lack of Petition for Annulment of Judgment
jurisdiction. What advice would you give under Rule 47 of the Rules of Court.
to Era? Explain your answer. (2017 Bar
The Supreme Court has consistently held
Question)
that when the owner’s duplicate
certificate of title has not been lost, but is
Suggested Answer: The advice I would
in fact in the possession of another
give to Era is that the petition for
person, then the reconstituted certificate
annulment of judgment on lack of
is void, because the court that rendered
jurisdiction will not prosper.
the decision had no jurisdiction. As a rule,
The Supreme Court has held that a reconstitution can validly be made only
special commercial court is still a court of in case of loss of the original certificate.
general jurisdiction and can hear and try In this regard, the remedy to nullify an
a non-commercial case. [Concorde order granting reconstitution is a petition
Condominium Inc. v. Baculio, 17 Feb for annulment under Rule 47 of the Rules
2016, Peralta, J.]. of Court (Eastworld Motor Industries
Corporation v. Skunac Corporation, G.R.
Hence the special commercial court No. 163994, December 16, 2005).
had jurisdiction to try and decide the
action for specific performance and to In this case, RTC Dumaguete had no
render a judgment therein. jurisdiction to order the re constitution of
the owner’s duplicate copy of TCT No.
Q: In 2015, Dempsey purchased from 777, considering that the owner’s
Daria a parcel of land located in duplicate copy thereof had not been
Dumaguete, Negros Oriental. The latter lost, but was merely in Dempsey’s
executed a Deed of Absolute Sale and possession. The order granting Daria’s
handed to Dempsey the owner’s petition for reconstitution is therefore
duplicate copy of TCT No. 777 cover ing void; accordingly, Dempsey may file a
the property. Since he was working in Petition for Annulment of Judgment
Manila and still had to raise funds to under Rule 47 to nullify the reconstituted
cover taxes, registration, and transfer title in Daria’s name.
costs, Dempsey kept the TCT in his
possession without having transferred it
 27

HOW A JUDGMENT IS EXECUTED dismissal of the case. The trial court

accordingly dismissed the complaint.
Q: The writ of execution was returned And it also dismissed the Counterclaim.
unsatisfied. The judgment obligee
subsequently received information that B. Suppose there was no Counterclaim
a bank holds a substantial deposit and Benjamin's complaint was not
belonging to the judgment obligor. If dismissed, and judgment was rendered
you were the counsel of the judgment against Mercedes for P1, 000,000. The
obligee, what steps would you take to judgment became final and executory
reach the deposit to satisfy the and a writ of execution was
judgment? (2008 Bar Question) correspondingly issued. Since Mercedes
did not have cash to settle the
Suggested Answer: Since a writ of judgment debt, she offered her Toyota
execution is valid for five years from its Camry model 2008 valued at P1.2
issuance, the sheriff should be informed million. The Sheriff, however, on request
and requested to garnish or levy on of Benjamin, seized Mercedes 17th
execution the bank deposits belonging century ivory image of the La Sagrada
to the judgment obligor (Sec. 9[c], Rule Familia estimated to be worth over P1,
39, Rules of Court). Then the judgment 000,000. Was the Sheriffs action in order?
creditor move for a court order directing (2010 Bar Question)
the application of such bank deposit to
the satisfaction of the judgment (Sec. Suggested Answer: No, the Sheriff's
40, Rule 39, Rules of Court). action was not in order. He should not
have listened to Benjamin, the
Q: Antique dealer Mercedes borrowed judgment obligee/creditor, in levying on
P1, 000,000 from antique collector the properties of Mercedes, the
Benjamin. Mercedes issued a postdated judgment obligor/debtor. The option to
check in the same amount to Benjamin immediately choose which property or
to cover the debt. On the due date of part thereof may be levied upon,
the check, Benjamin deposited it but it sufficient to satisfy the judgment, is
was dishonored. As despite demands, vested by law (Rule 39, Sec. 9 (b) (b)
Mercedes failed to make good the upon the judgment obligor, Mercedes,
check, Benjamin filed in January 2009 a not upon the judgment obligee,
complaint for collection of sum of Benjamin, in this case. Only if the
money before the RTC of Davao. judgment obligor does not exercise the
Mercedes filed in February 2009 her option, is the Sheriff authorized to levy
Answer with Counterclaim, alleging that on personal properties if any, and then
before the filing of the case, she and on the real properties if the personal
Benjamin had entered into a dacion properties are insufficient to answer for
enpago agreement in which her the judgment.
vintage P1, 000,000 Rolex watch which
was taken by Benjamin for sale on
commission was applied to settle her Q: Aldrin entered into a contract to sell
indebtedness; and that she incurred with Neil over a parcel of land. The
expenses in defending what she termed contract stipulated a P500,000.00 down
a "frivolous lawsuit.. She accordingly payment upon signing and the balance
prayed for P50, 000 damages. A. payable in twelve (12) monthly
Benjamin soon after moved for the installments of Pl00,000.00. Aldrin paid
 28

the down payment and had paid three divest the title of the party and vest it in
(3) monthly installments when he found the movant or other person.
out that Neil had sold the same property
to Yuri for Pl.5 million paid in cash. Aldrin
sued Neil for specific performance with ENFORCEMENT AND EFFECT OF FOREIGN
damages with the RTC. Yuri, with leave JUDGMENTS OR FINAL ORDERS
of court, filed an answer-in-intervention
as he had already obtained a TCT in his Q: Under Article 1144 of the New Civil
name. After trial, the court rendered Code, an action upon a judgment must
judgment ordering Aldrin to pay all the be brought within 10 years from the time
installments due, the cancellation of the right of action accrues.
Yuri's title, and Neil to execute a deed of
sale in favor of Aldrin. When the Is this provision applicable to an action
judgment became final and executory, filed in the Philippines to enforce a
Aldrin paid Neil all the installments but foreign judgment? Explain. (2005 Bar
the latter refused to execute the deed Question)
of sale in favor of the former.
Suggested Answer: Article 1144 of the
Aldrin filed a "Petition for the Issuance of Civil Code is applicable because it is
a Writ of Execution" with proper notice merely an action in a domestic court to
of hearing. The petition alleged, among enforce a foreign judgment. Foreign
others, that the decision had become judgments should be treated in the
final and executory and he is entitled to same manner as domestic judgments.
the issuance of the writ of execution as
a matter of right. Alternative Answer: a) Article 1144 of the
Civil Code which requires that an action
Despite the issuance of the writ of upon a judgment (though without
execution directing Neil to execute the distinction) must be brought within 10
deed of sale in favor of Aldrin, the years from the time the right of action
former obstinately refused to execute accrues, does not apply to an action
the deed. filed in the Philippines to enforce a
foreign judgment. While we can say
b.) What is Aldrin's remedy? (2015 Bar that where the law does not distinguish,
Question) we should not distinguish, still the law
does not evidently contemplate the
Suggested Answer: b) Aldrin’s remedy is inclusion of foreign judgments. A
to file a motion for judgment for specific domestic judgment may be enforced
act under Section 10(a) of Rule 39. by motion within five years and by
action within the next five years. That is
Under Section 10(a) of Rule 39, if a not the case with respect to foreign
judgment directs a party to execute a judgments which cannot be enforced
conveyance of land and the party fails by mere motion. A foreign judgment, in
to comply, the court may direct the act fact, is merely presumptive evidence of
to be done at the disobedient party’s a right between the parties and their
cost by some other person appointed by successors in interests. (Van Dorn v.
the court or the court may by an order Romillo, Jr., 139 SCRA 139 [19851). The
word “judgment” refers to one
mentioned ill Section 1, Rule 36, which is
 29

filed with the clerk of court. If no period parties is insufficient by itself to cancel
is fixed in our law, the period of the entry in the civil registry. Before a
prescription is five (5) years under Art. foreign divorce decree can be
1149 of the Civil Code. recognized by our courts, the party
pleading it must prove the divorce as a
fact and demonstrate its conformity to
Q: Drylvik, a German national, married the foreign law allowing it (Republic v.
Dara, a Filipina, in Dusseldorf, Germany. Manalo, G.R. No. 221029, April 24, 2018).
When the marriage collapsed, Dara filed
a petition for declaration of nullity of PROVISIONAL REMEDIES
marriage before the RTC of Manila.
Drylvik, on the other hand, was able to
obtain a divorce decree from the WRIT OF INJUNCTION
German Family Court. The decree, in
essence, states: Q: Can a suit for injunction be aptly filed
with the Supreme Court to stop the
The marriage of the Parties contracted President of the Philippines from entering
on xxx before the Civil Registrar of into a peace agreement with the
Dusseldorf is hereby dissolved. The National Democratic Front? (2003 Bar
parental custody of the children Diktor
Question)
and Daus is granted to the father.

Suggested Answer: No, a suit for

Drylvik filed a motion to dismiss in the RTC
injunction cannot aptly be filed with the
of Manila on the ground that the court
no longer had jurisdiction over the matter Supreme Court to stop the President of
as a decree of divorce had already the Philippines from entering into a
been promulgated dissolving his peace agreement with the National
marriage to Dara. Dara objected, saying Democratic Front, which is a purely p o l
that while she was not challenging the i t i c a l question. (Madarang v .
divorce decree, the case in the RTC still Santamaria, 37 Phil. 304 [1917]). The
had to proceed for the purpose of
President of the Philippines is immune
determining the issue of the children’s
custody. Drylvik counters that the issue from Suit.
had been disposed of in the divorce
decree, thus constituting res judicata. Q: Mrs. G defaulted in the payment of
her loan obligation with Z Bank. As such,
Is a foreign divorce decree between a Z Bank extra-judicially foreclosed Mrs. G's
foreign spouse and a Filipino spouse, mortgaged property and sold it at public
uncontested by both parties, sufficient auction where it emerged as the highest
by itself to cancel the entry in the civil bidder. Eventually, a certificate of sale
registry pertaining to the spouses’
was issued in Z Bank's favor, and title to
marriage? (2018 Bar Question)
the property was later consolidated
under the bank's name. Claiming that Z
Suggested Answer: No, a foreign divorce
Bank used fraudulent machinations in
decree between a foreign spouse and a
Filipino spouse, uncontested by both increasing the interest and penalty
 30

charges on the loan, thereby making it investigating prosecutor during the

impossible for her to pay, Mrs. G filed preliminary investigation, the Court
before the Regional Trial Court (RTC) a agrees that there is no sufficient
evidence against the accused to sustain
complaint for cancellation of
the allegation in the information. The
consolidation of ownership over a real motion to withdraw Information is,
property with prayer for the issuance of a therefore, granted."
writ of preliminary injunction against Z If you were the private prosecutor, what
Bank. Immediately thereafter, the RTC should you do? Explain. (2012 Bar
issued an ex parte writ of preliminary Question)
injunction enjoining Z Bank from
Suggested answer: If I were the private
disposing of the foreclosed property or
prosecutor, I would file a petition for
taking possession thereof. Did the RTC err certiorari under Rule 65 with the Court of
in issuing the writ of preliminary injunction Appeals (Cerezo vs. People, G.R.
ex parte? Explain. (2019 Bar Question) No.185230, June 1, 2011). It is well-settled
that when the trial court is confronted
Suggested Answer: Yes, the RTC erred in with a motion to withdraw and
issuing the writ of preliminary injunction Information (on the ground of lack of
probable cause to hold the accused for
ex parte. Under the Rules of Civil
trial based on resolution of the DOJ
Procedure, a writ of preliminary Secretary), the trial court has the duty to
injunction cannot issue ex parte but only make an independent assessment of the
after notice and hearing to the adverse merits of the motion. It may either agree
party. [Section 5, Rule 58] or disagree with the recommendation of
the Secretary. Reliance alone on the
resolution of the Secretary would be an
abdication of the trial court‟s duty and
jurisdiction to determine a prima facie
SPECIAL CIVIL ACTIONS case. The court must itself be convinced
that there is indeed no sufficient
CERTIORARI, PROHIBITION, AND evidence against the accused.
MANDAMUS Otherwise, the judge acted with grave
abuse of discretion if he grants the
WHEN PETITION FOR CERTIORARI IS Motion to Withdraw Information by the
PROPER trial prosecutor. (Harold Tamargo vs.
Romulo Awingan et. al. G.R. No. 177727,
Q: After an information for rape was filed January 19, 2010).
in the RTC, the DOJ Secretary, acting on
the accused's petition for review, Alternative answer:
reversed the investigating prosecutor's If I were the private prosecutor, I would
finding of probable cause. Upon order of file a Motion for Reconsideration of the
the DOJ Secretary, the trial prosecutor Order of the trial court. if the same has
filed a Motion to Withdraw Information been denied, I would file a petition for
which the judge granted. The order of review on certiorari under Rule 45 on
the judge stated only the following: pure question of law, which actually
"Based on the review by the DOJ encompasses both the criminal and civil
Secretary of the findings of the aspects thereof. The filing of the petition
 31

is merely a continuation of the appellate Alternative answer: A. Under ordinary

process. circumstances, the proper remedy of a
party wrongly declared in default is
Q: The defendant was declared in either to appeal from the judgment by
default in the RTC for his failure to file an default or file a petition for relief from
answer to a complaint for a sum of judgment. [Jao, Inc. v. Court of Appeals,
money. On the basis of the plaintiff’s ex 251 SCRA 391 (1995)]
parte presentation of evidence,
judgment by default was rendered Suggested answer: B. Yes, the trial court
against the defendant. The default gravely abused its discretion or acted
judgment was served on the defendant without or in excess of jurisdiction in
on October 1, 2001. On October 10, denying the defendant’s motion
2001, he files a verified motion to lift the because it was not accompanied by a
order of default and to set aside the separate affidavit of merit. In his verified
judgment. In his motion, the defendant motion to lift the order of default and to
alleged that, immediately upon receipt set aside the judgment, the defendant
of the summon, he saw the plaintiff and alleged that immediately upon the
confronted him with his receipt receipt of the summons, he saw the
evidencing his payment and that the plaintiff and confronted him with his
plaintiff assured him that he would receipt showing payment and that the
instruct his lawyer to withdraw the plaintiff assured him that he would
complaint. The trial court denied the instruct his lawyer to withdraw the
defendant’s motion because it was not complaint. Since the good defense of
accompanied by an affidavit of merit. the defendant was already
The defendant filed a special civil action incorporated in the verified motion, there
for certiorari under Rule 65 challenging was not need for a separate affidavit of
the denial order. (2002 Bar Question) merit. [Capuz v. Court of Appeals, 233
A. Is certiorari under Rule 65 the SCRA 471 (1994); Mago v. Court of
proper remedy? Why? Appeals, 303 SCRA 600 (1999)].
B. Did the trial court abuse its
discretion or act without or in WHEN PETITIONER FOR MANDAMUS IS
excess of its jurisdiction in denying PROPER
the defendant’s motion to lift the
order of default judgment? Why? Q: In 1996, Congress passed Republic
Act No. 8189, otherwise known as the
Suggested answer: A.The petition for Voter's Registration Act of 1996,
certiorari under Rule 65 filed by the providing for computerization of
defendant is the proper remedy elections. Pursuant thereto, the
because appeal is not a plain, speedy COMELEC approved the Voter's
and adequate remedy in the ordinary Registration and Identification System
course of law. In appeal, the defendant (VRIS) Project. It issued invitations to pre-
in default can only question the decision qualify and bid for the project. After the
in the light of the evidence of the public bidding, Fotokina was declared
plaintiff. The defendant cannot invoke the winning bidder with a bid of P6 billion
the receipt to prove payment of his and was issued a Notice of Award. But
obligation to the plaintiff. COMELEC Chairman Gener Go
objected to the award on the ground
that under the Appropriations Act, the
 32

budget for the COMELEC's Suggested answer: No, mandamus will

modernization is only P1 billion. He not lie. The proper remedy is a petition for
announced to the public that the VRIS prohibition. (Serana vs. Sandiganbayan,
project has been set aside. Two G.R. No. 162059, January 22, 2008). The
Commissioners sided with Chairman Go, dismissal of the case based on improper
but the majority voted to uphold the venue is not a ministerial duty.
contract. Mandamus does not lie to compel the
performance of a discretionary duty.
Meanwhile, Fotokina filed with the RTC a (Nilo Paloma vs. Danilo Mora, G.R. No.
petition for mandamus compel the 157783, September 23, 2005).
COMELEC to implement the contract.

The Office of the Solicitor General (OSG), FORCIBLE ENTRY AND UNLAWFUL
representing Chairman Go, opposed the DETAINER
petition on the ground that mandamus
does not lie to enforce contractual JURISDICTION IN ACTION INTERDICTAL
obligations. During the proceedings, the
majority Commissioners filed a Q: The spouses Juan reside in Quezon
manifestation that Chairman Go was not City. With their lottery winnings, they
authorized by the COMELEC En Banc to
purchased a parcel of land in Tagaytay
oppose the petition.
City for P100,000.00. In a recent trip to
Is a petition for mandamus an their Tagaytay property, they were
appropriate remedy to enforce surprised to see hastily assembled
contractual obligations? shelters of light materials occupied by
Suggested answer: No, the petition for several families of informal settlers who
mandamus is not an appropriate were not there when they last visited the
remedy because it is not available to
property three (3) months ago.
enforce a contractual obligation.
Mandamus is directed only to ministerial
To rid the spouses’ Tagaytay property of
acts, directing or commanding a person
to do a legal duty (COMELEC v. Quijano- these informal settlers, briefly discuss the
Padilla, G.R. No. 151992, September 18, legal remedy you, as their counsel,
2002; Sec. 3, Rule 65). would use; the steps you would take; the
court where you would file your remedy
Q: A files a Complaint against 8 for if the need arises; and the reason/s for
recovery of title and possession of land your actions. (2013 Bar Question)
situated in Makati with the RTC of Pasig.
B files a Motion to Dismiss for improper
Suggested Answer: As counsel for
venue. The RTC Pasig Judge denies B's
Motion to Dismiss, which obviously was spouses Juan, I will file a special civil
incorrect. Alleging that the RTC Judge action for Forcible Entry. The Rules of
"unlawfully neglected the performance Court provide that a person deprived of
of an act which the law specifically the possession of any land or building by
enjoins as a duty resulting from an office", force, intimidation, threat, strategy, or
8 files a Petition for Mandamus against stealth may at any time within 1 year
the judge. Will Mandamus lie? Reasons.
after such withholding of possession bring
 33

an action in the proper Municipal Trial located since ejectment suit is a real
Court where the property is located. This action regardless of the value of the
action which is summary in nature seeks property to be recovered or claim for
to recover the possession of the property unpaid rentals (BP 129 and RULE 4,
from the defendant which was illegally Section 1 of the Revised Rules on Civil
withheld by the latter (Section 1, Rule 70, Procedure).
Rules of Court).
In the aforementioned complaint, I will
An ejectment case is designed to restore allege that Spouses Juan had prior
, through summary proceedings, the physical possession and that the
physical possession of any land or dispossession was due to force,
building to one who has been illegally intimidation and stealth. The complaint
deprived of such possession, without will likewise show that the action was
prejudice to the settlement of parties’ commenced within a period of one (10
opposing claims of juridical possession in year from unlawful deprivation of
an appropriate proceeding (Heirs of possession, and that the Spouses Juan is
Agapatio T. Olarte and Angela A. Olarte entitled to restitution of possession
et. al. vs. Office of the President of the together with damage costs.
Philippines et al., G.R. No. 177995, June
15, 2011, Villarama, Jr., J.).

In Abad vs. Farrales, G.R. No. 178635,

April 11, 2011, the Supreme Court held SPECIAL PROCEEDINGS
that two allegations are indispensable
inactions for forcible entry to enable first EXTRAJUDICIAL SETTLEMENT BY
level courts to acquire jurisdiction over AGREEMENT BETWEEN HEIRS, WHEN
them: first, that the plaintiff had prior ALLOWED
physical possession of the property; and,
second, that the defendant deprived Q: The heirs of H agree among
him of such possession by means of themselves that they will honor the
force, intimidation, threats, strategy, or division of H’s estate as indicated in her
stealth. However, before instituting the Last Will and Testament. To avoid the
said action, I will first endeavour to expense of going to court in a Petition for
amicably settle the controversy with the Probate of the Will, can they instead
informal settlers before the appropriate execute an Extrajudicial Settlement
Lupon or Barangay Chairman. If there is Agreement among themselves? Explain
no agreement reached after mediation briefly. (2007 Bar Question)
and conciliation under the Katarungang
Pambarangay Law, I will secure a Suggested Answer: The heirs of H cannot
certificate to file action and file the validly agree to resort to extrajudicial
complaint for ejectment before the MTC settlement of his estate and do away
of Tagaytay City where the property is with the probate of H’s last will and
 34

testament. Probate of the will is (Sec. 14 of Rule 110, Revised Rules of

mandatory (Guevarra v. Guevarra, 74 Criminal Procedure). The new rule is for
Phil. 479 [1943]). The policy of the law is to the protection of the interest of the
respect the will of the testator as offended party and to prevent possible
manifested in the other dispositions in his abuse by the prosecution.
last will and testament, insofar as they
are not contrary to law, public morals
and public policy. Extrajudicial Q: D and E were charged with homicide
settlement of an estate of a deceased is in one information. Before they could be
allowed only when the deceased left no arraigned, the prosecution moved to
last will and testament and all debts, if amend the information to exclude E
any, are paid (Rule 74, Sec. 1, Rules of therefrom. Can the court grant the
Court). motion to amend? Why? (2002 Bar
Question)

Suggested Answer: Yes, provided notice

CRIMINAL PROCEDURE is given to the offended party and the
court states its reasons for granting the
AMENDMENTS OR SUBSTITUTION OF same. (Rule 110, sec. 14).
COMPLAINT OR INFORMATION
Q: On the facts above stated, suppose
Q: Amando was charged with frustrated the prosecution, instead of filing a
homicide. Before he entered his plea motion to amend, moved to withdraw
and upon the advice of his counsel, he the information altogether and its motion
manifested his willingness to admit was granted. Can the prosecution re- file
having committed the offense of serious the information although this time for
physical injuries. The prosecution then murder? Explain. (2002 Bar Question)
filed an amended information for serious
physical Injuries against Amando. Suggested Answer: Yes, the prosecution
can re-file the information for murder in
What steps or action should the substitution of the information for
prosecution take so that the amended homicide because no double jeopardy
information against Amando which has as yet attached. [Galvez v. Court of
downgrades the nature of the offense Appeals, 237 SCRA 685 (1994)].
could be validly made? Why? (2001 Bar
Question) RULE ON IMPLIED INSTITUTION OF CIVIL
ACTION WITH CRIMINAL ACTION
Suggested Answer: In order that the
amended information which Q: Saturnino filed a criminal action
downgrades the nature of the offense against Alex for the latter’s bouncing
could be validly made, the prosecution check. On the date of the hearing after
should file a motion to ask for leave of the arraignment, Saturnino manifested
court with notice to the offended party. to the court that he is reserving his right to
 35

file a separate civil action. The court applied only to the criminal aspect of the
allowed Saturnino to file a civil action case was not correct because the
separately and proceeded to hear the criminal action for violation of Batas
criminal case. Alex filed a motion for Pambansa Big. 22 included the
reconsideration contending that the civil corresponding civil action. (Sec. 1(b) of
action is deemed included in the Rule 111).
criminal case. The court reconsidered its
order and ruled that Saturnino could not WHEN CIVIL ACTION MAY PROCEED
file a separate civil action. Is the court's INDEPENDENTLY
order granting the motion for
Q: While in his Nissan Patrol and hurrying
reconsideration correct? Why? (2001 Bar
home to Quezon City from his work in
Question)
Makati, Gary figured in a vehicular
Suggested Answer: Yes, the court's order mishap along that portion of EDSA within
granting the motion for reconsideration is the City of Mandaluyong. He was
correct. The Rules provide that the bumped from behind by a Ford
criminal action for violation of B.P. Big. 22 Expedition SUV driven by Horace who
shall be deemed to include the was observed using his cellular phone at
corresponding civil action, and that no the time of the collision. Both vehicles -
reservation to file such civil action more than 5 years old – no longer carried
separately shall be allowed. [Sec. 1(b), insurance other than the compulsory
Rule 111, Revised Rules of Criminal third party liability insurance. Gary
Procedure) suffered physical injuries while his Nissan
Patrol sustained damage in excess of
Q: In an action for violation of Batas Php500,000.
Pambansa Big. 22, the court granted the
accused's demurrer to evidence which (B) If Gary chooses to file an
he filed without leave of court. Although independent civil action for damages,
he was acquitted of the crime charged, explain briefly this type of action: its legal
he, however, was required by the court basis; the different approaches in
to pay the private complainant the face pursuing this type of action; the
value of the check. The accused filed a evidence you would need; and types of
Motion for Reconsideration regarding defenses you could expect. (2010 Bar
the order to pay the face value of the Question)
check on the following grounds:
Suggested Answer: An independent civil
(a) the demurrer to evidence applied action is an action which is entirely
only to the criminal aspect of the case distinct and separate from the criminal
(2003 Bar Question) action. Such civila ction shall proceed
independently of the criminal
Suggested Answer: (a) The Motion for prosecution and shall require only a
Reconsideration should be denied. The preponderance of evidence. Section 3
ground that the demurrer to evidence of Rule 111 allows the filing of an
 36

independent civil action by the Is he entitled to a preliminary

offended party based on Article 33 and investigation before the filing of the
2176 of the New Civil Code. The different information? (2004 Bar Question)
approaches that the plaintiff can pursue
in this type of action are as follows: (a) Suggested Answer: Yes, he is entitled to
File the independent civil action and a preliminary investigation because he
prosecute the criminal case separately. was not lawfully arrested without a
(b) File the independent civil action warrant. (See Sec. 7 of Rule 112). He can
without filing the criminal case. (c) File move for a reinvestigation.
the criminal case without need of Alternative Answer: He is not entitled to a
reserving the independent civil action. preliminary investigation because the
penalty for estafa is the sum of PIO.OOO
REMEDIES OF THE ACCUSED WHEN THERE
does not exceed 4 years and 2 months.
WAS NO PRELIMINARY INVESTIGATION
Under Sec. 1, second par., Rule 112, a
Q: AX swindled RY in Lhe amount of preliminary investigation is not required.
P10,000 sometime in mid-2003. On the (Note: The penalty is not stated in the
strength of the sworn statement given by question.)
RY personally to SPOl Juan Ramos
Q: You are the defense counsel of
sometime in mid- 2004, and without
Angela Bituin who has been charged
securing a warrant, the police officer
under RA 3019 ( Anti-Graft and Corrupt
arrested AX. Forthwith the police officer
Practices Act ) before the
filed with the City Prosecutor of Manila a
Sandiganbayan. While Angela has
complaint for estafa supported by RTs
posted bail, she has yet to be arraigned.
sworn statement and other
Angela revealed to you that she has not
documentary evidence. After due
been investigated for any offense and
inquest, the prosecutor filed the requisite
that it was only when police officers
information with the MM Regional Trial
showed up at her residence with a
Court. No preliminary investigation was
warrant
conducted either before or after the
filing of the information and the accused (A) What "before-trial" remedy would you
at no time asked for such an invoke in Angela’s behalf to address the
investigation. However, before fact that she had not been investigated
arraignment:, the accused moved to at all, and how would you avail of this
quash the information on the ground remedy? (2013 Bar Question)
that the prosecutor suffered from a want
of authority to file the information Suggested Answer: I will file a Motion for
because of his failure to conduct a the conduct of preliminary investigation
preliminary investigation before filing the or reinvestigation and the quashal or
information, as required by the Rules of recall of the warrant of arrest in the Court
Court. where the case is pending with an
additional prayer to suspend the
 37

arraignment. Under Section 6 of Rule 112 In Bondoc vs. Sandiganbayan, G.R. No.
of the Rules of Court, after the filing of the 71163-65, November 9, 1990, the
complaint or information in court without Supreme Court held that before the
a preliminary investigation, the accused Sandiganbayan may lawfully try a
may within five days from the time he private individual under PD 1606, the
learns of its filing ask for preliminary following requisites must be established:
investigation with the same right to (a) he must be charged with a public
adduce evidence in his defense. officer/employee; and (b) he must be
tried jointly. Since the aforementioned
Moreover, Section 26, Rule 114 of the requisites are not present, the
Rules on Criminal Procedure provides Sandiganbayan has no jurisdiction.
that an application for or admission to
bail shall not bar the accused from Q: In a neighborhood bicycle race, Mr. A
challenging the validity of his arrest or bumped the bicycle of one of his
legality of the warrant issued therefor, or competitors, Mr. B, in order to get ahead.
from assailing the regularity or This caused the latter to lose control of
questioning the absence of a preliminary the bike which hit the concrete
investigation of the charge against him, pavement and sent Mr. B crashing
provided that he raises them before headfirst into the sidewalk. By the time
entering his plea. The court shall resolve the organizers got to him, Mr. B was
the matter as early as practicable but dead. Law enforcement authorities who
not later than the start of the trial of the witnessed the incident arrested Mr. A
case. without a warrant, and immediately
brought him to the inquest prosecutor for
Alternative Answer: I will file a Motion to
the conduct of an inquest. Thereafter, an
Quash on the ground that the Information for Homicide was filed by the
Sandiganbayan has no jurisdiction over
inquest prosecutor without the conduct
the person of the accused (Section 3, of a preliminary investigation. The next
Rule 117 of the Rules of Criminal
day Mr. A requested for the conduct of
Procedure). The Sandiganbayan has a preliminary investigation. Is Mr. A's
exclusive original jurisdiction over request permissible? Explain. (2019 Bar
violations of R.A. 3019 (Anti-graft and
Question)
Corrupt Practices law) where one or
more of the accused are officials Suggested Answer: Yes, Mr. A’s request is
occupying the enumerated positions in permissible. The law provides that after
the government whether in a the filing of the complaint or
permanent, acting, or interim information in court without a
incapacity, at the time of the preliminary investigation, the accused
commission of the offense (Sec. 4, R.A. may, within five (5) days from the time he
8249). learns of its filing, ask for a preliminary
investigation with the same right to
adduce evidence in his defense. Hence,
 38

Mr. A may request for a preliminary type jeepney" approaching him. Sensing
investigation that the occupants of the vehicle were
up to no good, he darted into a corner
ARREST WITHOUT WARRANT, WHEN and ran. The occupants of the vehicle-
LAWFUL elements from the Western Police District
- gave chase and apprehended him.
Q: AX swindled RY in Lhe amount of The police apprehended Cicero, frisked
P10,000 sometime in mid-2003. On the him and found a sachet of 0.09 gram of
strength of the sworn statement given by
shabu tucked in his waist and a Swiss
RY personally to SPOl Juan Ramos knife in his secret pocket, and detained
sometime in mid- 2004, and without him thereafter. Is the arrest and body-
securing a warrant, the police officer search legal? (2010 Bar Question)
arrested AX. Forthwith the police officer
filed with the City Prosecutor of Manila a Suggested Answer: The arrest and body-
complaint for estafa supported by RTs search was legal. Cicero appears to be
sworn statement and other
alone "walking down a dark alley" and at
documentary evidence. After due midnight. There appears probable cause
inquest, the prosecutor filed the requisite for the policemen to check him,
information with the MM Regional Trial especially when he darted into a corner
Court. No preliminary investigation was (presumably also dark) and run under
conducted either before or after the such circumstances. Although the arrest
filing of the information and the accused
came after the body-search where
at no time asked for such an Cicero was found with shabu and a Swiss
investigation. However, before knife, the body search is legal under the
arraignment:, the accused moved to "Terry search" rule or the "stop and frisk"
quash the information on the ground rule. And because the mere possession,
that the prosecutor suffered from a want with animus, of dangerous drug (the
of authority to file the information
shabu) is a violation of the law (Rep. Act
because of his failure to conduct a 9165), the suspect is in a continuing state
preliminary investigation before filing the
of committing a crime while he is illegally
information, as required by the Rules of possessing the dangerous drug, thus
Court. Is the warrantless arrest of AX making the arrest tantamount to an
valid? (2004 Bar Question)
arrest in flagrante: so the arrest is legal
and correspondingly, the search and
Suggested Answer: No. The warrantless seizure of the shabu and the concealed
arrest is not valid because the alleged
knife may be regarded as incident to a
offense has not just been committed. The lawful arrest.
crime was allegedly committed one year
before the arrest. (Sec. 5 (b) of Rule 113). Alternative Answer: No. The arrest and
the body-search were not legal. In this
Q: As Cicero was walking down a dark case, Cicero did not run because the
alley one midnight, he saw an "owner-
 39

occupant’s o of the vehicle identified said that an offense has just been
themselves as police officers. He darted committed. (People v. Del Rosario, 305
into the corner and ran upon the belief SCRA 740).
that the Occupants of the vehicle were
up to no good. Cicero's act of running
does not show any reasonable ground to ARRAIGNMENT AND PLEA
believe that a crime has been
committed or is about to be committed WHEN MAY ACCUSED ENTER A PLEA OF
for the police officers to apprehend him GUILTY TO A LESSER OFFENSE
and conduct body search. Hence, the
arrest was illegal as it does not fall under Q: D was charged with theft of an article
worth P15,000.00. Upon being arraigned,
any of the circumstances for a valid
he pleaded not guilty to the offense
warrantless arrest provided in Sec. 5 of charged. Thereafter, before trial
Rule 113 of the Rules of Criminal commenced, he asked the court to
Procedure. allow him to change his plea of not guilty
to a plea of guilty but only to estafa
Q: Under Section 5, Rule 113 a involving P5,000.00. Can the court allow
D to change his plea? (2017 Bar
warrantless arrest is allowed when an
Question)
offense has just been committed and the
peace officer has probable cause to Suggested Answer: No, because a plea
believe, based on his personal of guilty to a lesser offense may be
knowledge of facts or circumstances, allowed if the lesser offense is necessarily
that the person to be arrested has included in the offense charged. (Rule
committed it. A policeman approaches 116, sec. 2). Estafa involving P5,000.00 is
not necessarily included in theft of an
you for advice and asks you how he will
article worth P15,000.00.
execute a warrantless arrest against a
murderer who escaped after killing a
person. The policeman arrived two (2) MOTION TO QUASH
hours after the killing and a certain Max Q: Pedrito and Tomas, Mayor and
was allegedly the killer per information Treasurer, respectively, of the
given by a witness. He asks you to clarify Municipality of San Miguel, Leyte, are
charged before the Sandiganbayan for
the following:
violation of Section 3(e),RA no. 3019
(Anti-Graft and Corrupt Practices Act).
[a] How long after the commission of the The information alleges, among others,
crime can he still execute the warrantless that the two conspired in the purchase
arrest? (2016 Bar Question) of several units of computer through
personal canvass instead of a public
Suggested Answer: The arrest must be bidding, causing undue injury to the
made within 24 hours after the municipality. Before arraignment, the
commission of the crime. Where the accused moved for reinvestigation of
the charge, which the court granted.
arrest took place a day after the
After reinvestigation, the Office of the
commission of the crime, it cannot be
 40

Special Prosecutor filed an amended Q: A criminal information is filed in court

information duly singed and approved charging Anselmo with homicide.
by the Special Prosecutor, alleging the Anselmo files a motion to quash the
same delictual facts, but with an information on the ground that no
additional allegation that the accused preliminary investigation was
gave unwarranted benefits to SB conducted. Will the motion be granted?
enterprises owned by Samuel. Samuel Why or why not? (3%)
was also indicted under the amended
information. Suggested Answer: NO, the motion to
Before Samuel was arraigned, he moved quash will not be granted. The lack of
to quash the amended information on preliminary investigation is not a ground
the ground that the officer who filed had for a motion to quash under the Rules of
no authority to do so. Resolve the motion Criminal Procedure. Preliminary
to quash with reasons. investigation is only a statutory right and
can be waived. The accused should
instead file a motion for reinvestigation
Suggested Answer: The motion to quash within five (5) days after he learns of the
filed by Samuel should be granted. There filing in Court of the case against him
is no showing that the special prosecutor (Sec. 6, Rule 112, as amended).
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 GROUNDS
power and authority, under the Q: The information against Roger
supervision and control of the Alindogan for the crime of acts of
Ombudsman, to conduct preliminary lasciviousness under Article 336 of the
investigation and prosecute criminal Revised Penal Code avers: "That on or
cases before the Sandiganbayan and about 10:30 o'clock in the evening of
perform such other duties assigned to February 1, 2010 at Barangay Matalaba,
him by the Ombudsman (Calingin vs. Imus, Cavite and within the jurisdiction of
Desierto, 529 SCRA 720 [2007]). Absent a this Honorable Court, the above-named
clear delegation of authority from the accused, with lewd and unchaste
Ombudsman to the Special Prosecutor design, through force and intimidation,
to file the information, the latter would did then and there, wilfully, unlawfully
have no authority to file the same. The and feloniously commit sexual abuse on
Special Prosecutor cannot be his daughter, Rose Domingo, a minor of
considered an alter ego of the 11 years old, either by raping her or
Ombudsman as the doctrine of qualified committing acts of lasciviousness on her,
political agency does not apply to the against her will and consent to her
office of the Ombudsman. In fact, the damage and prejudice.
powers of the office of the Special
Prosecutor under the law may be The accused wants to have the case
exercised only under the supervision and dismissed because he believes that the
control and upon authority of the charge is confusing and the information
Ombudsman (Perez vs. Sandiganbayan, is defective. What ground or grounds
503 SCRA 252 [2006]). can he raise in moving for the quashal of
the information? Explain. (2016 Bar
Question)
 41

Suggested Answer:
The grounds which the accused can Suggested Answer: I will deny the motion
raise in moving for the quashal of the to quash and fix bail.
information are the following:
1. THE INFORMATION CHARGES MORE The Rules of Criminal Procedure is clear
THAN ONE OFFENSE. The information that a motion to quash can be availed
charges two offenses, that is, rape and of only when a ground or grounds set
sexual abuse. Worse, the charges are therein are available as when the facts
stated in the alternative, making it charged do not constitute an offense.
unclear to the accused as to what Moreover, an application for bail sets in
offense exactly he is being charged with. only when the accused has already
2. THE INFORMATION DOES NOT acquired custody of the accused.
CONFORM SUBSTANTIALLY TO THE
REQUIRED FORM. The information merely Here, the information charges an offense
states that the accused committed acts which is the nonbailable crime of
of lasciviousness upon the victim without plunder. Besides, the warrant of arrest
specifying what those acts of has yet to be filed, meaning that A is not
lasciviousness were. yet under the custody of the court.
Therefore, the motion to quash and fix
Q: A was charged before the bail has no basis hence should be
Sandiganbayan with a crime of plunder, denied.
a non-bailable offense, where the court
had already issued a warrant for his (B) If the Sandiganbayan denies the
arrest. Without A being arrested, his motion, what judicial remedy should the
lawyer filed a Motion to Quash Arrest accused undertake? (2%)
Warrant and to Fix Bail, arguing that the
allegations in the information did not Suggested Answer: If the
charge the crime of plunder but a crime Sandiganbayan denies the motion, the
of malversation, a bailable offense. The accused should proceed to trial.
court denied the motion on the ground
that it had not yet acquired jurisdiction Under the Rules of Criminal Procedure,
over the person of the accused and that an order denying a motion to quash is an
the accused should be under the interlocutory order which is neither
custody of the court since the crime appealable nor subject to a petition for
charged was nonbailable The accused’s certiorari.
lawyer counter-argued that the court
can rule on the motion even if the Therefore, the remedy of the accused is
accused was at-large because it had to proceed to trial, await its judgment,
jurisdiction over the subject matter of the then appeal an unfavorable judgment.
case. According to said lawyer, there
was no need for the accused to be
under the custody of the court because
what was filed was a Motion to Quash SINGLE OFFENSE RULE
Arrest and to Fix Bail, not a Petition for
Bail. Q: Rodolfo is charged with possession of
unlicensed firearms in an information
(A) If you are the Sandiganbayan, how filed in the Regional Trial Court. It was
will you rule on the motion? (3%) alleged therein that Rodolfo was in
 42

possession of two unlicensed firearms: a Injuries. The latter case was scheduled for
.45 caliber and a .32 caliber. Under arraignment earlier, on which occasion
Republic Act No. 8294, possession of an McJolly immediately pleaded
unlicensed 45 caliber gun is punishable guilty. He was meted out the penalty of
by prision mayor in its minimum period public censure. A month later, the case
and a fine of P30.00Q.00. while for reckless imprudence resulting in
possession of an unlicensed .32 caliber homicide was also set for arraignment.
gun is punishable by prision correctional Instead of pleading, McJolly interposed
in its maximum period and a fine of not the defense of double jeopardy.
less than PI 5,000.00. As counsel of the Resolve. (2017 Bar Question)
accused, you intend to file a motion to
quash the Information. What ground or Suggested Answer: The defense of
grounds should you invoke? Explain. (4%) double jeopardy is meritorious and the
second information for reckless
Suggested Answer: The ground for the imprudence resulting in homicide should
motion to quash is that more than one be quashed on the ground of double
offense is charged in the information jeopardy. The Supreme Court has held
(Sec. 3[f], Rule 117, 2000 Rules of Criminal that reckless imprudence is a single
Procedure). Likewise, the RTC has no crime and that its consequences on
jurisdiction over the second offense of persons and property are material only
possession of an unlicensed .32 caliber to determine the penalty. Here there was
gun, punishable by prision correccional only one act and crime of reckless
in its maximum period and a fine of not imprudence. The death, the physical
less than P15,000.00, It is the MTC that has injuries, and the damage to the tricycle
exclusive and original jurisdiction over are only consequences of the same
offenses punishable by imprisonment reckless act of McJolly. Hence there was
not exceeding six years. (Sec. 2, Republic double jeopardy when a second
Act No. 7691 [1994], amending Sec. 32 information arising from the same
(2) , B.P. Big. 129) [1980]. reckless act was
brought against the accused. (Ivler v.
Modesto-San Pedro, 17 November 2010).

DOUBLE JEOPARDY TRIAL

Q: McJolly is a trouble-maker of sorts, DEMURRER TO EVIDENCE WITHOUT LEAVE

always getting into brushes with the law. OF COURT
In one incident, he drove his Humvee
recklessly, hitting a pedicab which sent Q: Still in another case, this time for illegal
Rits driver and passengers in different possession of dangerous
directions. The pedicab driver died, while drugs, the prosecution has rested but you
two (2) of the passengers suffered slight saw from the records that the illegal
physical injuries. Two (2) Information were substance allegedly involved has not
then filed against McJolly. One, for been identified by any of the
Reckless Imprudence Resulting in prosecution witnesses nor has it been the
Homicide and Damage to Property, and subject of any stipulation. Should you
two, for Reckless Imprudence Resulting in now proceed posthaste to the
Slight Physical presentation of defense evidence or
consider some other remedy? Explain
 43

the remedial steps you propose to − gave chase and apprehended him.
undertake. (2013 Bar Question) The police apprehended Cicero, frisked
him and found a sachet of 0.09 gram of
Suggested Answer: No. I will not proceed shabu tucked in his waist and a Swiss
with the presentation of defense knife in his secret pocket, and detained
evidence. I will first file a motion for leave him thereafter. Is the arrest and body-
to file demurrer to evidence within five search
(5) days from the time the prosecution legal? (2010 Bar Question)
has rested its case. If the Motion is
granted, I will file a Suggested Answer: The arrest and body-
demurrer to evidence within a non- search was legal. Cicero appears to be
extendible period of ten (10) days from alone walking down the dark alley” and
notice on the ground of insufficiency of at midnight. There appears probable
evidence. In the alternative, I may cause for the policemen to check him,
immediately file a demurrer to evidence especially when he darted into a corner
without leave of court. (Section 23, Rule (presumably also dark) and run under
119, Rules of such circumstance. Although the arrest
Criminal Procedure) came after the bodysearch where
Cicero was found with shabu and a Swiss
In People v. De Guzman, GR No, 186498, knife, the body-search is legal under the
March 26, 2010, the Supreme Court held “Terry search” rule or the “stop and frisk”
that in a prosecution for violation of the rule. And because the mere possession,
Dangerous Drugs Act, the existence of with animus, of dangerous drug (the
the dangerous drug is a condition sine shabu) is a violation of the law (R.A.
qua non for conviction. The dangerous 9165), the suspect is in a continuing state
drug is the very corpus delicti of the of committing a crime while he is illegally
crime. possessing the dangerous drug, thus
making the arrest tantamount to an
Similarly, in People v. Sitco, GR No. arrest in flagrante: so the arrest is legal
178202, May 14, 2010, the High Court and correspondingly, the search and
held that in prosecutions involving seizure of the shabu and the concealed
narcotics and other illegal substances, knife may be regarded as incident to a
the substance itself constitutes part of lawful arrest.
the corpus delicti of the offense and the
fact of its existence is vital to sustain a
judgment of conviction beyond Alternative Answer: No, the arrest and
reasonable doubt. the body-search were not legal. In this
case, Cicero did not run because the
occupants of the vehicle identified
SEARCH AND SEIZURE themselves as police officers. He darted
into the corner and ran upon the belief
Q:As Cicero was walking down a dark that the occupants of the vehicle were
alley one midnight, he saw an "owner- up to no good. Cicero‟s act of running
type jeepney" approaching him. Sensing does not show any reasonable grounds
that the occupants of the vehicle were to believe that a crime has been
up to no good, he darted into a corner committed or is about to be committed
and ran. The occupants of the vehicle − for the police officers to apprehend him
elements from the Western Police District and conduct body search. Hence, the
 44

arrest was illegal as it does not fall under PROVISIONAL REMEDIES IN CRIMINAL
any of the circumstances for a valid CASE
warrantless arrest provided in Sec. 5 of
Rule 113 of the Rules of Criminal Q: At the Public Attorney's Office station
Procedure. in Taguig where you are assigned, your
work requires you to act as public
defender at the local Regional Trial Court
PLAIN VIEW DOCTRINE and to handle cases involving indigents.
(A) In one criminal action for qualified
Q: The search warrant authorized the theft where you are the defense
seizure of “undetermined quantity of attorney, you learned that the woman
shabu.” During the service of the search accused has been in detention for six
warrant, the raiding team also months, yet she has not been to a
recovered a kilo of dried marijuana courtroom nor seen a judge. What
leaves wrapped in newsprint. The remedy would you undertake to address
accused moved to suppress the the situation and what forum would you
marijuana leaves as evidence for the use to invoke this relief? (2013 Bar
violation of Section 11 of the Question)
Comprehensive Dangerous Drugs Act of
2002 since they were not covered by the Suggested Answer: Section 7, Rule 119
search warrant. The State justified the provides, if the public attorney assigned
seizure of the marijuana leaves under the to defend a person charged with a
“plain view” doctrine. There was no crime knows that the latter is preventively
indication of whether the marijuana detained, either because he is charged
leaves were discovered and seized with a bailable crime but has no means
before or after the seizure of the shabu. If to post bail, or, is charged with a non-
you are the judge, how would you rule bailable crime, or, is serving a term of
on the motion to suppress? (2008 Bar imprisonment in any penal institution, it
Question) shall be his duty to do the following: (a)
Shall promptly undertake to obtain the
Suggested Answer: The “plain view” presence of the prisoner for trial or cause
doctrine cannot be invoked because a notice to be served on the person
the marijuana leaves were wrapped in having custody of the prisoner requiring
newsprint and there was no evidence as such person to so advise the prisoner of
to whether the marijuana leaves were his right to demand trial. (b) Upon receipt
discovered and seized before or after of that notice, the custodian of the
the seizure of the shabu. If they were prisoner shall promptly advise the
discovered after the seizure of the shabu, prisoner of the charge and of his right to
then the marijuana could not have been demand trial. If at any time thereafter
seized in plain view (CF. Peo vs. Mua, the prisoner informs his custodian that he
G.R. No. 96177, 27 January 1997). In any demands such trial, the latter shall cause
case, the marijuana should be notice to that effect to be sent promptly
confiscated as a prohibited article. to the public attorney.
(2008)
 45

EVIDENCE note. The rules provide that when the

original document is lost or destroyed, or
DOCUMENTARY EVIDENCE cannot be produced in court, the
ORIGINAL DOCUMENT RULE offeror, upon proof of its execution or
existence and the cause of its
Q: When A loaned a sum of money to B, unavailability without bad faith on his
A typed a single copy of the promissory part, may prove its contents by a copy,
note, which they both signed. A made or by a recital of its contents in some
two photo (xeroxed) copies of the authentic document, or by the testimony
promissory note, giving one copy to B of witnesses in the order stated. (Sec. 5 of
and retaining the other copy. A Rule 130)
entrusted the typewritten copy to his
counsel for safekeeping. The copy with Note: The “Best Evidence Rule” was
A's counsel was destroyed when the law changed to the “Original Document
office was burned. (1997 Bar Question) Rule” because the former is a misnomer
as it does not refer to some hierarchy of
a) In an action to collect on the evidence. Rather, the rule simply states
promissory note, which is deemed to be that there is preference for original
the "original" copy for the purpose of the documents to prove the actual contents
"Best Evidence Rule"? thereof.
b) Can the photocopies in the hands of
the parties be considered "duplicate Q: Police officers arrested Mr. Druggie in
original copies"? a buy-bust operation and confiscated
c) As counsel for A, how will you prove from him 10 sachets of shabu and several
the loan given by A and B? marked genuine peso bills worth
P5,000.00 used as the buy-bust money
Suggested Answer: during the buy-bust operation. At the trial
(a) The copy that was signed and lost is of Mr. Druggie for violation of R.A. No.
the only "original" copy for purposes of 9165 (Comprehensive Dangerous Drug
the Best Evidence Rule. (Sec. 4 [b] of Rule Act of 2002), the Prosecution offered in
130) evidence, among others, photocopies
of the confiscated marked genuine peso
(b) No, they are not duplicate original bills. The photocopies were offered to
copies because there are photocopies prove that Mr. Druggie had engaged at
which were not signed (Mahilum v. Court the time of his arrest in the illegal selling
of Appeals, 17 SCRA 482). They constitute of dangerous drugs. Invoking the Best
secondary evidence. (Sec. 5 of Rule 130) Evidence Rule, Atty. Maya Bang, the
defense counsel, objected to the
(c) The loan given by A to B may be admissibility of the photocopies of the
proved by secondary evidence through confiscated marked genuine peso bills.
the xeroxed copies of the promissory Should the trial judge sustain the
 46

objection of the defense counsel? Briefly

explain your answer. (2017 Bar Question) Q: In a case for specific performance
and damages, plaintiff Q presented
Suggested Answer: No, the trial judge photocopies of the contracts he had
should not sustain the defense counsel's executed with defendant R for the
objection. In People v. Tandoy (G.R. No. purpose of establishing their existence.
80505, December 4, 1990), the Supreme Defendant R's counsel objected to the
Court held that the best evidence rule admission of said photocopies, invoking
applies only when the contents of the the best evidence rule. (2019 Bar
document are the subject of Inquiry. Question)
Where the issue is only as to whether or
not such a document was actually (a) Should the objection of defendant R's
executed, or exists, or the circumstances counsel be sustained? Explain
relevant to or surrounding its execution,
the best evidence rule does not apply Suggested Answer: No, the objection of
and testimonial evidence is admissible. defendant R's counsel should not be
Here, the marked money was presented sustained. The Supreme Court has held
by the prosecution solely for the purpose that the best evidence rule does not
of establishing its existence and not its apply if the purpose of offering the
contents. Other substitutionary document is not to prove its contents but
evidence, like a photocopy thereof, is its existence. The reason is that the best
therefore admissible without the need of evidence rule applies only to
presenting the original. Hence, the best documentary evidence and not to
evidence rule does not apply in this case. object evidence. (People v. Tandoy, 192
The trial judge, therefore, should not SCRA 28)
sustain the defense counsel's objection.
TESTIMONIAL EVIDENCE
Atty. Maya Bang, however, may object FILIAL PRIVILEGE
to the photocopies of the confiscated
marked genuine peso bills for being Q: In a case for Attempted Parricide
hearsay evidence. Since it does not brought against Mr. M by his wife, Mrs.
appear that the prosecution was able to N, their son, C, was called as a witness
establish that its submission of for the prosecution. Mr. M's counsel
photocopied documents is justified objected, invoking the filial privilege
under Rule 130, Sections 3 (a), (b), and rule.
(d) of the Rules of Court, said
Should the objections of Mr. M's counsel
photocopied documents do not have
be sustained? Explain.
any probative weight and should be
disregarded whether objected to or not Suggested Answer: No, the objections of
(Republic v. Mupas, G.R. No. 181892, Mr. M’s counsel in both cases should be
April 19,2016). overruled.
 47

The objection of Mr. M’s counsel without the consent of the affected
invoking the filial privilege rule should be spouse, one exception is if the testimony
overruled. of the spouse is in a criminal case for a
crime committed by one against the
Under the Law on Evidence, the filial other or the latter’s direct descendants
privilege rule is a privilege of the witness or ascendants. (Sec, 23, Rule 130). The
not to testify against his direct case falls under this exception because
ascendant. It is the privilege of the Selma is the direct descendant of the
witness not the person he is being called spouse Vide.
to testify against.
(b) No. The marital disqualification rule
Here the one invoking the filial privilege
applies this time. The exception provided
is not the witness but the ascendant
by the rules is in a civil case by one
against whom the witness is being
spouse against the other. The case here
called upon to testify.
involves a case by Selmo for the
Hence the objection based on filial recovery of personal property against
privilege should be overruled. Vida’s spouse, Romeo.

PRIVILEGE COMMUNICATION, MARITAL Q: XYZ, an alien, was criminally charged

of promoting and facilitating child
Q: Vida and Romeo are legally married. prostitution and other sexual abuses
Romeo is charged to court with the under Rep. Act No. 7610. The principal
crime of serious physical injuries witness against him was his Filipina wife,
committed against Selmo, son of Vida, ABC. Earlier, she had complained that
stepson of Romeo. Vida witnessed the XYZ's hotel was being used as a center
infliction of the injuries on Selmo by for sex tourism and child trafficking. The
Romeo. The public prosecutor called defense counsel for XYZ objected to the
Vida to the witness stand and offered her testimony of ABC at the trial of the child
testimony as an eyewitness. Counsel for prostitution case and the introduction of
Romeo objected on the ground of the the affidavits she executed against her
marital disqualification rule under the husband as a violation of espousal
Rules of Court. a) Is the objection valid? confidentiality and marital privilege rule.
(3%) b) Will your answer be the same if It turned out that DEF, the minor
Vida’s testimony is offered in a civil case daughter of ABC by her first husband
for recovery of personal property filed by who was a Filipino, was molested by XYZ
Selmo against Romeo? (2000 Bar earlier. Thus, ABC had filed for legal
Question) separation from XYZ since last year. May
the court admit the testimony and
Suggested Answer: affidavits of the wife, ABC, against her
(a) No. While neither the husband nor the husband, XYZ, in the criminal case
wife may testify for or against the other
 48

involving child prostitution? Reason. (5%) inapplicable and which can be waived,
(2004 Bar Question) but she would be barred under Sec. 23
of Rule 130, which prohibits her from
Suggested Answer: Yes. The court may testifying and which cannot be waived
admit the testimony and affidavits of the (Alvarez v. Ramirez, G.R. No. 143439,
wife against her husband in the criminal October 14, 2005).
case where it involves child prostitution of
the wife's daughter. It is not covered by Alternative Answer: Yes, Leticia may
the marital privilege rule. One exception testify over the objection of her husband.
thereof is where the crime is committed The disqualification of a witness by
by one against the other or the latter's reason of marriage under Sec. 23, Rule
direct descendants or ascendants. (Sec. 130 of the Revised Rules of Court has its
23, Rule 130). A crime by the husband exceptions as where the marital relations
against the daughter is a crime against are so strained that there is no more
the wife and directly attacks or vitally harmony to be preserved. The acts of
impairs the conjugal relation. (Ordono v. Paul eradicate all major aspects of
Daquigan, 62 SCRA 270 [1975]). marital life. On the other hand, the State
has an interest in punishing the guilty and
Q: Leticia was estranged from her exonerating the innocent, and must
husband Paul for more than a year due have the right to offer the testimony of
to his suspicion that she was having an Leticia over the objection of her husband
affair with Manuel their neighbor. She (Alvarez v. Ramirez, G.R. No. 143439,
was temporarily living with her sister in October 14, 2005).
Pasig City. For unknown reasons, the
house of Leticia's sister was burned, killing Q: On March 12, 2008, Mabini was
the latter. Leticia survived. She saw her charged with Murder for fatally stabbing
husband in the vicinity during the Emilio. To prove the qualifying
incident. Later he was charged with circumstance of evident premeditation,
arson in an Information filed with the the prosecution introduced on
Regional Trial Court, Pasig City. During December 11, 2009 a text message,
the trial, the prosecutor called Leticia to which Mabini’s estranged wife Gregoria
the witness stand and offered her had sent to Emilio on the eve of his
testimony to prove that her husband death, reading: “Honey, pa2tayin u ni
committed arson. Can Leticia testify over Mabini. Mtgal n nyang plano i2. Mg ingat
the objection of her husband on the u bka ma tsugi k.”
ground of marital privilege? (5%) (2006
Bar Question) (a) A subpoena ad testificandum was
served on Gregoria for her to be
Alternative Answer: No, Leticia cannot presented for the purpose of identifying
testify over the objection of her husband, her cellphone and the tex message.
not under marital privilege which is Mabini objected to her presentation on
 49

the ground of marital privilege. Resolve. communication? Explain. (2016 Bar

(2010 Bar Question) Question)

Suggested Answer: The objection should Suggested Answer: Yes, John can testify
be sustained on the ground of the on the psychiatric report without
marital disqualification rule (Rule 130, offending the rule on privileged
Sec. 23), not on the ground of the communication. In a case involving
“marital privilege” communication rule similar facts, the Supreme Court held that
(Rule 130, Sec. 24). The marriage there is no violation of physician-patient
between Mabini and Gregoria is still privilege since the one testifying is not the
subsisting and the situation at bar does psychiatrist. The privilege bars only the
not come under the exceptions to the physician, not other persons. (Krohn v.
disqualification by reason of marriage. Court of Appeals, 233 SCRA 146). There is
no violation of marital communication
(b) Suppose Mabini’s objection in privilege since the report is not a
question A was sustained. The confidential communication between
prosecution thereupon announced that spouses. There is also no violation of the
it would be presenting Emilio’s wife marital disqualification rule since the
Graciana to identify Emilio’s cellphone case involves an exception, that is, a civil
bearing Gregoria’s text message. Mabini case by one spouse against the other.
objected again. Rule on the objection.
(2%)
PRIVILEGE COMMUNICATION, LAWYER-
Suggested Answer: The objection should CLIENT
be overruled. The testimony of Graciana
is not covered by the said marital Q: On August 15, 2008, Edgardo
disqualification rule because she is not committed estafa against Petronilo in
the wife of Mabini. Besides, Graciana will the amount of P3 Million. Petronilo
identify only the cellphone as that of her brought his complaint to the National
husband Emilio, not the messages therein Bureau of Investigation, which found that
which to her are hearsay. Edgardo had visited his lawyer twice, the
first time on August 14, 2008 and the
Q: John filed a petition for declaration of second on August 16, 2008; and that
nullity of his marriage to Anne on the both visits concerned the swindling of
ground of psychological incapacity Petronilo. During the trial of Edgardo, the
under Article 36 of the Family Code. He RTC issued a subpoena ad testificandum
obtained a copy of the confidential to Edgardo’s lawyer for him to testify on
psychiatric evaluation report on his wife the conversations during their first and
from the secretary of the psychiatrist. second meetings. May the subpoena be
Can he testify on the said report without quashed on the ground of privileged
offending the rule on privileged
 50

communication? Explain fully. (2008 Bar the survivors. He also interviewed other
Question) persons, in some instances making
memoranda. The heirs of the five (5)
Suggested Answer: Yes, the mantle of victims filed an action for damages
privileged communication based on against SPS. Plaintiffs’ counsel sent
lawyer-client relationship protects the written interrogatories to Ely, asking
communication between a lawyer and whether statements of witnesses were
his client against any adverse party as in obtained; if written copies were to be
this case. The subpoena requiring the furnished; if oral, the exact provision were
lawyer to testify can be quashed on the to be set forth in detail. Ely refused to
ground of privileged communication comply, arguing that the documents
(See Regala v. Sandiganbayan, GR No. and information asked are privileged
105938, 20 September 1996). The Rules of communication. Is the contention
Court provides that an attorney cannot, tenable? (2008 Bar Question)
without the consent of his client, be
examined in any communication made Suggested Answer:Yes, the lawyer-client
to him by his client to him, or his advice privilege covers any communication
given thereon, including his secretary, made by the client to the lawyer, or the
stenographer, clerk concerning any fact lawyer’s advice given thereon in the
the knowledge of which has been course of, or with a view to professional
acquired in such capacity. However, employment. The documents and
where the subject matter of the information sought were gathered and
communication involves the commission prepared pursuant to the engagement
of the crime, in which the lawyer himself of Ely as a lawyer for the company (Air
is a participant or conspirator, then the Philippines Corporation v. Pennswell, Inc.,
same is not covered by the privilege. GR No. 172835, 13 December 2007).
Moreover, if the substance of the
communication can be established by
independent evidence, the lawyer may Q: X was driving the dump truck of Y
be compelled to testify. along Cattleya Street in Sta. Maria,
Bulacan. Due to his negligence, X hit
Q: A tugboat owned by Speedy Port and injured V who was crossing the
Service, Inc. (SPS) sank in Manila Bay street: Lawyer L, who witnessed the
while helping tow another vessel, incident, offered his legal services to V.
drowning five (5) crews in the resulting
shipwreck. At the maritime board inquiry, V, who suffered physical injuries including
the four (4) survivors testified. SPS a fractured wrist bone, underwent
engaged Atty. Ely to defend it against surgery to screw a metal plate to his wrist
potential claims and to sue the company bone. On the complaint of V, a criminal
owning the other vessel for damages to case for Reckless Imprudence Resulting
tug. Ely obtained signed statements from in Serious Physical Injuries was filed
against X before the Municipal Trial
 51

Court (MTC) of Sta. Maria. Atty. L, the privilege. Rule on the objection. (2010
private prosecutor, did not reserve the Bar Question)
filing of a separate civil action.
Suggested Answer: The objection should
V subsequently filed a complaint for be overruled. Lawyer-client privilege is
Damages against X and Y before the not involved here. The subject on which
Regional Trial Court of Pangasinan in the counsel would be examined has
Urdaneta where he resides. In his been made public in the counsel would
"Certification against Forum Shopping” be examined has been made public in
V made no mention of the pendency of the affidavit he offered and thus, no
the criminal case in Sta. Maria. longer privileged, aside from the fact
that it is in respect of what the counsel
Atty. L offered in the criminal case his witnessed during the incident and not to
affidavit respecting what he witnessed the communication made by the client
during the incident. X's lawyer wanted to to him or the advice he gave thereon in
cross examine Atty. L who, however, his professional capacity.
objected on the ground of lawyer client
house and whom Walter medically
consulted after the fire, also saw Walter
PRIVILEGE COMMUNICATION, DOCTOR- in the vicinity some minutes before the
PATIENT fire. Coincidentally, Fr. Platino, the parish
priest who regularly hears Walter’s
Q: For over a year, Nenita had been confession and who heard it after the
estranged from her husband Walter fire, also encountered him not too far
because of the latter’s suspicion that she away from the burned house. Walter was
was having an affair with charged with arson and at his trial, the
prosecution moved to introduce the
Vladimir, a barangay kagawad who testimonies of Nenita, the doctor and the
lived in nearby Mandaluyong. Nenita priest-confessor, who all saw Walter at
lived in the meantime with her sister in the vicinity of the fire at about the time
Makati. One day, the house of Nenita’s of the fire.
sister inexplicably burned almost to the
ground. Nenita and her sister were May the testimony of Dr. Carlos, Walter’s
caught inside the house but Nenita psychiatrist, be allowed over Walter’s
survived as she fled in time, while her objection?
sister tried to save belongings and was
caught inside when the house collapsed. Suggested Answer: Yes. The testimony of
As she was running away from the Walter’s psychiatrist may be allowed. The
burning house, Nenita was surprised to privileged communication
see her husband also running away from contemplated under Sec. 24 (c) Rule 130
the scene. Dr. Carlos, Walter’s of the Rules on Evidence involves only
psychiatrist who lived near the burned persons authorized to practice
 52

medicine, surgery or obstetrics. It does Q: A foreign dog trained to sniff

not dangerous drugs from packages, was
hired by FDP Corporation, a door-to-door
HEARSAY RULE forwarder company, to sniff packages in
their depot at the international airport. In
Q: Romeo is sued for damages for injuries one of the routinary inspections of
suffered by the plaintiff in a vehicular packages waiting to be send to the
accident. Julieta, a witness in court, United States of America (USA), the dog
testifies that Romeo told her (Julieta) that sat beside one of the packages, a signal
he (Romeo) heard Antonio, a witness to that the package contained dangerous
the accident, give an excited account drugs. Thereafter, the guards opened the
of the accident immediately after its package and found two (2) kilograms of
occurrence. Is Julieta’s testimony cocaine. The owner objected of the
admissible against Romeo over proper package was arrested and charges
and timely objection? Why? (2002 Bar were filed against him. During the trial,
Question) the prosecution, through the trainer who
was present during the incident and an
Suggested Answer: No, Julieta’s expert in this kind of field, testified that
testimony is not admissible against the dog was highly trained to sniff
Romeo, because while the excited packages to determine if the contents
account of Antonio, a witness to the were dangerous drugs and the sniffing
accident, was told to Romeo, it was only technique of their highly trained dogs
Romeo who told Julieta about it, which was accepted worldwide and had been
makes it hearsay. (2012 Bar Question) successful in dangerous drugs
operations. The prosecution moved to
Q: Counsel A objected to a question admit this evidence to justify the opening
posed by opposing Counsel B on the of the package. The accused objected
grounds that it was hearsay and it on the grounds that: (i) the guards had
assumed a fact not yet established. The no personal knowledge of the contents
judge banged his gavel and ruled by of the package before it was opened; (ii)
saying "Objection Sustained". Can the testimony of the trainer of the dog is
Counsel B ask for a reconsideration of the hearsay; and (iii) the accused could not
ruling? Why? (5%) crossexamine the dog. Decide. (2014 Bar
Question)
Suggested Answer: Yes, Counsel B may
ask the Judge to specify the ground’s Suggested Answer: The objections of the
relied upon for sustaining the objection accused should be overruled. An
and thereafter move its reconsideration evidence is admissible when it is relevant
thereof. to the issue and is not excluded by the
law or the rules. Under the Rules of Court,
a witness can testify only to those which
 53

he knows of his personal knowledge and refers only to witnesses. As alluded, the
derived from his own perception. The human witnesses who have explained
contention that the guards had no the workings of the non-human
personal knowledge of the contents of evidence is the one that should be cross
the package before it was opened is examined. Hence, the contention of the
without merit. The guards can testify as to accused that he could not cross-
the facts surrounding the opening of the examine the dog is misplaced. Ergo,
package since they have personal there is no doubt that the evidence of
knowledge of the circumstances the prosecution is admissible for being
thereof, being physically present at the relevant and competent.
time of its discovery. On the other hand,
the testimony of the trainer of the dog is Q: X was charged with robbery. On the
not hearsay based on the following strength of a warrant of arrest issued by
grounds: a. He has personal knowledge the court, X was arrested by police
of the facts in issue, having witnessed the operatives. They seized a handgun from
same; b. Hearsay merely contemplates his person. A charge for illegal possession
an out-of-court declaration of a person of firearms was also filed against him. In a
which is being offered to prove the press conference called by the police, X
truthfulness and veracity of the facts admitted that he had robbed the victim
asserted therein; c. He is an expert of jewelry valued at P500,000.00.
witness, hence, his testimony may
constitute an exception to the hearsay The robbery and illegal possession of
rule; d. The accused has the opportunity firearm cases were tried jointly. The
to cross-examine him; and e. Testimony prosecution presented in evidence a
of a witness as to statements made by newspaper clipping of the report to the
nonhuman declarants does not violate reporter who was present during the
the rule against hearsay. The law permits press conference stating that X admitted
the so-called “non-human evidence” on the robbery. It likewise presented a
the ground that machines and animals, certification of the PNP Firearms and
unlike humans, lack a conscious Explosive Office attesting that the
motivation to tell falsehoods, and accused had no license to carry any
because the workings of machines can firearm. The certifying officer, however,
be explained by human witnesses who was not presented as a witness. Both
are then subject to cross-examination by pieces of evidence were objected to by
opposing counsel. (City of Webster the defense.
Groves v. Quick. 323 S.W. 2d 386 [Mo.
1959]; Buck v. State, 138 P. 2d 115 [Okla. (a) Is the newspaper clipping admissible
1943]; Herrera, 1999). Conversely, the in evidence against X? (2003 Bar
accused may not argue that he cannot Question)
cross-examine the dog as the
Constitutional right to confrontation Suggested Answer:
 54

(a) Yes, the newspaper clipping is factor that the message was made and
admissible in evidence against X. sent under consciousness of an
regardless of the truth or falsity of a impending death, is evidently attendant
statement, the hearsay rule does not from thevictim’s statement: “D na me
apply and the statement may be shown makakahinga” and the fact that he died
where the fact that it is made is relevant. shortly after he sent the message.
Evidence as to the making of such a However, cellphone messages are
statement is not secondary but primary, regarded as electronic evidence, and in
for the statement itself may constitute a a recent case (Ang v. Court of Appeals
fact in issue or be circumstantially et al., G.R. No. 182835, April 20, 2010), the
relevant as to the existence of such fact. Supreme Court ruled that the Rules on
(Gotesco Investment Corporation vs. Electronic Evidence applies only to civil
Chatto, 1992) actions, quasi-judicial proceedings and
administrative proceeding, not to
DYING DECLARATION criminal actions.

Q: On March 12, 2008, Mabini was Q: Immediately before he died of

charged with Murder for fatally stabbing gunshot wounds to his chest, Venancio
Emilio. To prove the qualifying told the attending physician, in a very
circumstance of evident premeditation, feeble voice, that it was Arnulfo, his co-
the prosecution introduced on worker, who had shot him. Venancio
December 11, 2009 a text message, added that it was also Arnulfo who had
which Mabini’s estranged wife Gregoria shot Vicente, the man whose cadaver
had sent to Emilio on the eve of his was lying on the bed beside him. In the
death, reading: "Honey,pa2tayin u ni prosecution of Arnulfo for the criminal
Mabini. Mtgal n nyang plano i2. Mg ingat killing of Venancio and Vicente, are all
u bka ma tsugi k." the statements of Venancio admissible
as dying declarations? Explain your
Suppose that shortly before he expired, answer. (2017 Bar Question)
Emilio was able to send a text message
to his wife Graciana reading "Nasaksak Suggested Answer: No, not all the
ako. D na me makahinga. Si Mabini ang statements of Venancio are admissible
may gawa ni2." Is this text message as dying declarations. Under the Rules on
admissible as a dying declaration? Evidence, a dying declaration is
Explain. (2010 Bar Question) admissible as an exception to the
hearsay rule provided that such
Suggested Answer: Yes, the text declaration relates to the cause of the
message is admissible as a dying declarant’s death. Venancio’s
declaration since the same came from statement that it was Arnulfo who shot
the victim who “shortly” expired and it is him is admissible as a dying declaration.
in respect of the cause and The same related to Venancio’s own
circumstance of his death. The decisive demise. It may be inferred that Venancio
 55

had consciousness of his impending testimony of the policeman be hearsay?

death since he suffered gunshot wounds Explain.
to his chest which would necessarily be
mortal wounds. However, Venancio’s Suggested Answer: No. The testimony of
statement that it was Arnulfo who shot the policeman is not hearsay. It is part of
Vicente is not admissible as a dying the res gestae. It is also an independently
declaration since it did not relate to the relevant statement. The police officer
cause of the declarant’s death but to testified of his own personal knowledge,
the death of another person. not to the truth of Candida's statement,
i.e., that she told him, despite her pleas,
Dencio had raped her. (People v.
PART OF RES GESTAE Gaddi,G.R. No. 74065, February 27,1989)

Q: Dencio barged into the house of (b) If the police officer will testify that he
Marcela, tied her to a chair and robbed noticed Candida to be hysterical and on
her of assorted pieces of jewelry and the verge of collapse, would such
money. Dencio then brought Candida, testimony be considered as opinion,
Marcela's maid, to a bedroom where he hence, inadmissible? Explain.
raped her. Marcela could hear Candida
crying and pleading: "Huwag! Maawa Suggested Answer: No, it cannot be
ka sa akin!" After raping Candida, considered as opinion, because he was
Dencio fled from the house with the loot. testifying on what he actually observed.
Candida then untied Marcela and The last paragraph of Sec. 50, Rule 130,
rushed to the police station about a Revised Rules of Evidence, expressly
kilometer away and told Police Officer provides that a witness may testify on his
Roberto Maawa that Dencio had impressions of the emotion, behavior,
barged into the house of Marcela, tied condition or appearance of a person.
the latter to a chair and robbed her of
her jewelry and money. Candida also Q: While passing by a dark uninhabited
related to the police officer that despite part of their barangay, PO2 Asintado
her pleas, Dencio had raped her. The observed shadows and heard screams
policeman noticed that Candida was from a distance. PO2 Asintado hid
hysterical and on the verge of collapse. himself behind the bushes and saw a
Dencio was charged with robbery with man beating a woman whom he
rape. During the trial, Candida can no recognized as his neighbour, Kulasa.
longer be located. (8%) (2005 Bar
Question) When Kulasa was already in agony the
man stabbed her and she fell on the
(a) If the prosecution presents Police ground. The man hurriedly left thereafter.
Officer Roberto Maawa to testify on PO2 Asintado immediately went to
what Candida had told him, would such Kulasa’s rescue. Kulasa who was then in
 56

a state of hysteria, kept mentioning to While a witness can only testify as to

PO2 Asintado “Si Rene, gusto akong those facts which he has personal
patayin! Sinaksak niya ako!” When PO2 knowledge, the Rules provide that a
Asintado was about to carry her, Kulasa statement made under the influence of
refused and said “Kaya ko. Mababaw a startling event witnessed by the person
lang to. Habulin mo si Rene.”The who made the declaration before he
following day, Rene learned of Kulasa’s had time to think and make up a story, or
death and, bothered by his conscience, to concoct or contrive a falsehood, or to
surrendered to the authorities with his fabricate an account, and without any
counsel. As his surrender was undue influence in obtaining it, aside
broadcasted all over media, Rene from referring to the event in question or
opted to release his statement to the its immediate attending circumstances,
press which goes: is an exception being part of res gestae
(Belbis, Jr., v. People, G.R. No. 181052,
“I believe that I am entitled to the November 14, 2012).
presumption of innocence until my guilt
is proven beyond reasonable doubt. In the case, the statements made by
Although I admit that I performed acts PO2 Asintado constitutes part of res
that may take one’s life away, I hope gestae since the same were made
and pray that justice will be served in the without any opportunity to fabricate and
right way. God bless us all. while a startling occurrence was actually
(Sgd.) taking place.
Rene”
In addition, the statement of PO2
The trial court convicted Rene of Asintado may fall within the purview of
homicide on the basis of PO2 Asintado’s the doctrine of independent relevant
testimony, Kulasa’s statements, and statement, where only the fact that such
Rene’s statement to the press. On statements were made is relevant, and
appeal, Rene raises the following errors: the truth and falsity thereof is immaterial
a) The trial court erred in giving weight to (People v. Malibiran, G.R. No. 178301,
PO2 Asintado’s testimony, as the latter April 24, 2009).
did not have personal knowledge of the
facts in issue, and violated Rene’s right to On the other hand, Kulasa’s statements
due process when it considered Kulasa’s are also admissible as part of res gestae
statements despite lack of opportunity since the same were made under the
for her cross- examination. influence of a startling event and without
any opportunity to concoct or devise a
Suggested Answer: The trial court did not falsehood.
err in giving weight to PO2 Asintado’s
testimony. b) The trial court erred in holding that
Rene’s statement to the press was a
 57

confession which, standing alone, would a) If the prosecutor presents Police

be sufficient to warrant a Officer Roberto Maawa to testify on
conviction.Resolve. (2014 Bar Question) what Candida had told him, would such
testimony of the policemen be hearsay?
Suggested Answer: The trial court did not Explain. (1999, 2009 Bar Question)
err in holding that Rene’s statement to
the press is a confession. Rene’s Suggested Answer: No. The testimony of
confessions to the media were properly the policemen is not hearsay. It is part of
admitted because statements the res gestae. It is also an independently
spontaneously made by a suspect to relevant statement. The police officer
news reporters on a televised interview testified his own personal knowledge, not
are deemed voluntary and are to the truth of Candida’s statement, i.e.,
admissible in evidence (People v. that she told him, despite her pleas,
Hipona, G.R. No. 185709, February 18, Dencio has raped her (People v. Gaddi,
2010). G.R. No. 74065, February 27, 1989).

Q: Dencio barged into the house of b) If the police officer will testify that he
Marcela, tied her to a chair and robbed noticed Candida to be hysterical and on
her of assorted pieces of jewelry and the verge of collapse, would such
money. Dencio then brought Candida, testimony be considered as opinion,
Marcela’s maid, to a bedroom where he hence, inadmissible? Explain. (2005, 2019
raped her. Marcela could hear Candida Bar Question)
crying and pleading; “Huwag! Maawa
ka sa akin!”After raping Candida, Suggested Answer: No. It cannot be
Dencio fled from the house with loot. considered as an opinion, because he
Candida then untied Marcela and was testifying on what he actually
rushed to the police station about a observed. The last paragraph of Sec. 53,
kilometer away and told Police Officer Rule 130, Revised Rules of Evidence,
Roberto Maawa that Dencio had expressly provides that a witness may
barged into the house of Marcela, tied testify on his impressions of the emotion,
the latter to a chair and robbed her of behavior, condition or appearance of a
her jewelry and money. Candida also person.
related to the police officer that despite
her pleas, Dencio had raped her. The INDEPENDENTLY RELEVANT STATEMENT
policemen noticed that Candida was
hysterical and on the verge of collapse. Q: Blinded by extreme jealousy, Alberto
Dencio was charged with robbery with shot his wife, Betty, in the presence of his
rape. During the trial, Candida can no sister, Carla. Carla brought Betty to the
longer be located. hospital. Outside the operating room,
Carla told Domingo, a male nurse, that it
was Alberto who shot Betty. Betty died
 58

while undergoing emergency surgery. At hearsay rule does not apply. (See People
the trial of the parricide charges filed vs. Gaddi, 170 SCRA 649)
against Alberto, the prosecutor sought to
present Domingo as witness, to testify on
Q: Dencio barged into the house of
what Carla told him. The defense
Marcela, tied her to a chair and
counsel objected on the ground that robbed her of assorted pieces of
Domingo’s testimony is inadmissible for jewelry and money. Dencio then
being hearsay. Rule on the objection brought Candida, Marcela’s maid, to
a bedroom where he raped her.
with reasons. (2009 Bar Question) Marcela could hear Candida crying
and pleading: “Huwag! Maawa ka sa
Suggested Answer: Objection overruled. akin!" After raping Candida, Dencio
fled from the house with the loot.
The disclosure received by Domingo and
Candida then untied Marcela and
Carla may be regarded as an rushed to the police station about a
independently relevant statement which kilometer away and told Police
is not covered by the hearsay rule; Officer Roberto Maawa that Dencio
had barged into the house of
hence admissible. The statement may be Marcela, tied the latter to a chair and
received not as evidence of the truth of robbed her of her jewelry and money.
what was stated but only as to the tenor Candida also related to the police
thereof and the occurrence when it was officer that despite her pleas, Dencio
had raped her. The policeman
said, independently of whether it was noticed that Candida was hysterical
true or false. (People v. Cloud, 1996; and on the verge of collapse. Dencio
People v. Malibiran, et al., 2009). was charged with robbery with rape.
During the trial, Candida can no
longer be located.
Q: A overheard B call X a thief. In an
action for defamation filed by X against If the prosecution presents Police
Officer Roberto Maawa to testify on
B, is the testimony of A offered to prove
what Candida had told him, would
the fact of utterance i.e., that B called X such testimony of the policeman be
a thief, admissible in evidence? Explain. hearsay? Explain.
(1999 Bar Question)
Suggested Answer: No. The testimony
of the policeman is not hearsay. It is
Suggested Answer: Yes. The testimony of part of the res gestae. It is also an
A who overheard B call X a thief is independently relevant statement.
The police officer testified of his own
admissible in evidence as an personal knowledge, i.e., that the
independently relevant statement. It is complainant told him that despite
offered in evidence only to prove the her pleas, Dencio had raped her. He
tenor thereof, not to prove the truth of did not testify to the truth of his
statement. (People v. Gaddi, 1989)
the facts asserted therein.
Independently relevant statements
include statements which are on the very CHARACTER EVIDENCE
facts in issue or those which are
circumstantial evidence thereof. The
 59

Q: D was prosecuted for homicide for ground/s. Respond. (2010 Bar

allegedly beating up V to death with an Question)
iron pipe.
Suggested Answer: The objection is on
May the prosecution introduce the ground that the fact sought to be
evidence that V had a good reputation elicited by the prosecution is irrelevant
for peacefulness and non-violence? and immaterial to the offense under
Why? prosecution and trial. Moreover, the
Rules do not allow the prosecution to
Suggested Answer: The prosecution may
adduce evidence of bad moral
introduce evidence of the good or even
character of the accused pertinent to
bad moral character of the victim if it
the offense charged, except on
tends to establish in any reasonable
rebuttal and only if it involves a prior
degree the probability or improbability of
conviction by final judgment (Sec. 51,
the offense charged (Sec. 51[a][3], Rule
Rule 130).
130). In this case, the evidence is not
relevant. Q: In an attempt to discredit and
impeach a Prosecution witness in a
Q: May D introduce evidence of specific
homicide case, the defense counsel
violent acts by V? Why? (2002 Bar
called to the stand a person who had
Question)
been the boyhood friend and next-
Suggested Answer: Yes, D may introduce door neighbor of the Prosecution
evidence of specific violent acts by V. witness for 30 years. One question that
Evidence that one did or did not do a the defense counsel asked of the
certain thing at one time is not admissible impeaching witness was: "Can you tell
to prove that he did or did not do the this Honorable Court about the
same or a similar thing at another time; general reputation of the prosecution
but it may be received to prove a witness in your community for
specific intent or knowledge, identity, aggressiveness and violent
plan, system, scheme, habit, custom or tendencies?" Would you, as the trial
usage, and the like (Sec. 34, Rule 130). prosecutor, interpose your objection to
the question of the defense counsel?
Explain your answer. (2017 Bar
Q: In a prosecution for murder, the Question)
prosecutor asks accused Darwin if he
had been previously arrested for Suggested Answer: I, as the trial
violation of the Anti- Graft and Corrupt prosecutor, would interpose my
Practices Act. As defense counsel, you objection to defense counsel’s
object. The trial court asks you on what question on the ground of improper
impeachment. Under the Law on
Evidence, an adverse party’s witness
 60

may be properly impeached by ground that it is the fruit of a poisonous

reputation evidence provided that it is tree? Explain. (8%) (2005 Bar Question)
to the effect that the witness’s general
reputation for honesty, truth, or integrity Suggested Answer: The fruits of the
was bad. [S11 R132] The reputation poisonous tree doctrine applies only
must only be on character for where the primary source is shown to
truthfulness or untruthfulness. [Cordial v. have been unlawfully obtained or was
People, 166 SCRA 17] Here the the result of an illegal act (People v.
evidence is not on the Prosecution Alicando, G.R. No. 117487, 251 SCRA
witness’s general reputation for 293 [1995]) Since the rights of the
honesty, truth, or integrity but on his accused are not violated because the
aggressive and violent tendencies. The compulsory testing is authorized by
evidence had nothing to do with the law, the result of the testing cannot be
witness’s character for truthfulness or considered to be the fruit of a
untruthfulness. Hence the poisonous tree and can be offered in
impeachment was improper. evidence to prove the qualifying
circumstance under the information for
OFFER AND OBJECTION qualified rape under Republic Act No.
FRUIT OF A POISONOUS TREE 8353.

Q: Under Republic Act No. 8353, one Q: Arrested in a buy-bust operation,

may be charged with and found guilty
Edmond was brought to the police
of qualified rape if he knew on or
before the commission of the crime station where he was informed of his
that he is afflicted with Human constitutional rights. During the
Immuno-Deficiency Virus investigation, Edmond refused to give
(HIV)/Acquired Immune Deficiency any statement. However, the arresting
Syndrome (AIDS) or any other sexually officer asked Edmond to acknowledge
transmissible disease and the virus or
in writing that six (6) sachets of “shabu”
disease is transmitted to the victim.
Under Section 17(a) of Republic Act were confiscated from him. Edmond
No. 8504 the court may compel the consented and also signed a receipt
accused to submit himself to a blood for the amount of P3,000, allegedly
test where blood samples would be representing the “purchase price of
extracted from his veins to determine the shabu.” At the trial, the arresting
whether he has HIV. officer testified and identified the
documents executed and signed by
If the result of such test shows that he is
Edmond. Edmond’s lawyer did not
HIV positive, and the prosecution offers
object to the testimony. After the
such result in evidence to prove the
presentation of the testimonial
qualifying circumstance under the
evidence, the prosecutor made a
information for qualified rape, should
formal offer of evidence which
the court reject such result on the
 61

included the documents signed by obtained through torture, hence,

Edmond. inadmissible as evidence.

Edmond’s lawyer objected to the In a subsequent criminal case for

admissibility of the document for being torture against those who deprived him
the fruit of the poisoned tree. Resolve of sleep and subjected him to water
the objection with reasons. (3%) (2009 torture.
Bar Question)
Dominique was asked to testify and to,
Suggested Answer: The objection to among other things, identify his above
the admissibility of the documents said affidavit of confession. As he was
which the arresting officer asked about to identify the affidavit, the
Edmond to sign without the benefit of defense counsel objected on the
counsel, is well-taken. Said documents ground that the affidavit is a fruit of a
having been signed by the accused poisonous tree. Can the objection be
while under custodial investigation, sustained? Explain. (3%) (2010 Bar
imply an “admission” without the Question)
benefit of counsel, that the shabu
came from him and that the P3,000,00 Suggested Answer: No, the objection
was received by him pursuant to the may not be sustained on the ground
illegal selling of the drugs. Thus, it was stated, because the affiant was only to
obtained by the arresting officer in identify the affidavit which is not yet
clear violation of Sec. 12 (3), Art. III of being offered in evidence.
the 1987 Constitution, particularly the
right to be assisted by counsel during The doctrine of the poisonous tree can
custodial investigation. Moreover, the only be invoked by Domingo as his
objection to the admissibility of the defense in the crime of Violation of
evidence was timely made, i.e., when Human Security Act filed against him
the same is formally offered. but not by the accused torture case
filed by him. In the instant case, the
Q: Dominique was accused of presentation of the affidavit cannot be
committing a violation of the human objected to by the defense counsel on
Security Act. He was detained the ground that it is a fruit of the
incommunicado, deprived of sleep, poisonous tree because the same is
and subjected to water torture. He used in Domingo’s favor.
later allegedly confessed his guilt via
an affidavit.

After trial, he was acquitted on the

ground that his confession was