BAR EXAMS QUESTIONS AND ANSWERS

2001

GEN TOPIC: RECEIVERSHIP

SPECIFIC: REMEDIES

Joaquin filed a complaint against Jose for the foreclosure of a mortgage of a furniture factory with a large number of machinery and equipment. During the pendency of the foreclosure suit, Joaquin learned from reliable sources that Jose was quietly and gradually disposing of some of his machinery and equipment to a businessman friend who was also engaged in furniture manufacturing such that from confirmed reports Joaquin gathered, the machinery and equipment left with Jose were no longer sufficient to answer for the latter’s mortgage indebtedness. In the meantime judgment was rendered by the court in favor of Joaquin but the same is not yet final.

Knowing what Jose has been doing. If you were Joaquin’s lawyer, what action would you take to preserve whatever remaining machinery and equipment are left with Jose? Why? (5%)

2001

GEN TOPIC: WRIT

May a writ of preliminary attachment be issued ex-parte? Briefly state the reason(s) for your answer. (3%)

Yes, an order of attachment may be issued ex-parte or upon motion with notice and hearing. (Sec. 2 of Rule 57) The reason why the order may be issued ex parte is: that requiring notice to the adverse party and a hearing would defeat the purpose of the provisional remedy and enable the adverse party to abscond or dispose of his property before a writ of attachment issues. (Mindanao Savings and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480).

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: ATTACHMENT

May a writ of preliminary attachment be issued ex-parte? Briefly state the reason(s) for your answer. (3%)

GEN TOPIC: PRE TRIAL REQUIREMENTS

REMOTELY RELATED TOPIC: EJECTMENT

Lilio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a sum against Juan. The latter filed his answer to the complaint serving a copy thereof on Lilio. After the filing of the answer of Juan, whose duty is it to have the case set for pre-trial? Why? (5%)

After the filing of the answer of Juan, the PLAINTIFF has the duty to promptly move ex parte that the case be set for pre-trial. (Sec. 1, Rule18). The reason is that it is the plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty to prosecute.

ALTERNATIVE ANSWER:

In the event the plaintiff files a reply, his duty to move that the case be set for pre-trial arises after the reply has been served and filed.

GEN TOPIC: PLEADINGS

SPECIFIC AMENDMENT OF COMPLAINT BY PLEAVE OF COURT

REMOTELY RELATED: PRE-TRIAL REQUIREMENTS

After an answer has been filed, can the plaintiff amend his complaint, with leave of court, by changing entirely the nature of the action? 4%

Yes, the present rules allow amendments substantially altering the nature of the cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870 [1997]).

This should only be true, however, when the substantial change or alteration in the cause of action or defense shall serve the higher interests of substantial justice and prevent delay and equally promote the laudable objective of the rules which is to secure a just, speedy and inexpensive disposition of every action and proceeding. (Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).

GEN TOPIC: JUDGMENT

SPECIFIC: MANDAMUS VS QUO WARRANTO

Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla supposedly to replace the respondent Election Registrar Pablo who was transferred to another municipality without his consent and who refused to accept his aforesaid transfer, much less to vacate his position in Bogo town as election registrar, as in fact he continued to occupy his aforesaid position and exercise his functions thereto. Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court dismissed Fabian’s petition contending that quo warranto is the proper remedy. Is the court correct in its ruling? Why? (5%)

Yes, the court is correct in its ruling. Mandamus will not lie. This remedy applies only where petitioner’s right is founded clearly in law, not when it is doubtful. Pablo was transferred without his consent which is tantamount to removal without cause, contrary to the fundamental guarantee on non-removal except for cause. Considering that Pedro continued to occupy the disputed position and exercise his functions therein, the proper remedy is quo warranto, not mandamus. {Garces v. Court of Appeals, 259 SCRA 99 (1996)]

ALTERNATIVE ANSWER:

Yes, the court is correct in its ruling. Mandamus lies when the respondent unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled. (Sec. 2, Rule 65). In this case, Pablo has not unlawfully excluded Fabian from the Office of Election Registrar. The remedy of Fabian is to file an action of quo warranto in his name against Pablo for usurping the office. (Sec. 5, Rule 66)

Demurrer to Evidence (2001)

Carlos filed a complaint against Pedro in the RTC of Ozamis City for the recovery of the ownership of a car. Pedro filed his answer within the reglementary period. After the pre-trial and actual trial, and after Carlos has completed the presentation of his evidence, Pedro moved for the dismissal of the complaint on the ground that under the facts proven and the law applicable to the case, Carlos is not entitled to the ownership of the car. The RTC granted the motion for dismissal. Carlos appealed the order of dismissal and the appellate court reversed the order of the trial court. Thereafter, Pedro filed a motion with the RTC asking the latter to allow him to present his evidence. Carlos objected to the presentation of evidence by Pedro. Should the RTC grant Pedro’s motion to present his evidence? Why? (5%)

No. Pedro’s motion should be denied. He can no longer present evidence. The Rules provide that if the motion for dismissal is granted by the trial court but on appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present evidence. (Sec. 1 of Rule 33, Rules of Civil Procedure)

ALTERNATIVE ANSWER:

No, because when the appellate court reversed the order of the trial court it should have rendered judgment in favor of Carlos. (Quebral v. Court of Appeals, 252 SCRA 353, 1996)

GEN: DEFAULT

SPECIFIC: ORDER OF DEFAULT

SPECIFIC: EFFECT

Mario was declared in default but before judgment was rendered, he decided to file a motion to set aside the order of default.

a) What should Mario state in his motion in order to justify the setting aside of the order of default? (3%)

b) In what form should such motion be? (2%)

a) In order to justify the setting aside of the order of default, Mario should state in his motion that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. [Sec. 3(b) of Rule 9,].

b) The motion should be under oath. (Id.)

GEN TOPIC: KATARUNGANG PAMBARANGAY LAW

SPECIFIC: EXTENT OF ENTRY

An amicable settlement was signed before a Lupon Tagapamayapa on January 3, 2001. On July 6, 2001, the prevailing party asked the Lupon to execute the amicable settlement because of the non-compliance by the other party of the terms of the agreement. The Lupon concerned refused to execute the settlement/agreement.

a) Is the Lupon correct in refusing to execute the settlement/agreement? (3%)

b) What should be the course of action of the prevailing party in such a case? (2%)

a) Yes, the Lupon is correct in refusing to execute the settlement/agreement because the execution sought is already beyond the period of six months from the date of the settlement within which the Lupon is authorized to execute. (Sec. 417, Local Government Code of 1991)

b) After the six-month period, the prevailing party should move to execute the settlement/agreement in the appropriate city or municipal trial court. (Id.)

GEN TOPIC: JURISDICTION

SPECIFIC: PROBATE

Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the probate of the will of her husband, Martin, who died in the Municipality of Alicia, the residence of the spouses. The probable value of the estate which consisted mainly of a house and lot was placed at P95,000.00 and in the petition for the allowance of the will, attorney’s fees in the amount of P10,000.00, litigation expenses in the amount of P5,000.00 and costs were included. Pedro, the next of kin of Martin, filed an opposition to the probate of the will on the ground that the total amount included in the relief of the petition is more than P100,000.00, the maximum jurisdictional amount for municipal circuit trial courts. The court overruled the opposition and proceeded to hear the case.

Was the municipal circuit trial court correct in its ruling? Why? (5%)

Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has exclusive jurisdiction in all matters of probate, both testate and intestate, where the value of the estate does not exceed P100,000.00 (now P200,000.00). The value in this case of P95,000.00 is within its jurisdiction. In determining the jurisdictional amount, excluded are attorney’s fees, litigation expenses and costs; these are considered only for determining the filing fees. (B.P.Blg. 129, Sec. 33, as amended)

GEN TOPIC: INFORMATION

SPECIFIC: AMENDMENT

Amando was charged with frustrated homicide. Before he entered his plea and upon the advice of his counsel, he manifested his willingness to admit having committed the offense of serious physical injuries. The prosecution then filed an amended information for serious physical injuries against Amando. What steps or action should the prosecution take so that the amended information against Amando which downgrades the nature of the offense could be validly made? Why? (5%)

In order that the amended information which downgrades the nature of the offense could be validly made, the prosecution should file a motion to ask for leave of court with notice to the offended party. (Sec.14 of Rule 110, Revised Rules of Criminal Procedure). The new rule is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution.

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: TRO

An application for a writ of preliminary injunction with a prayer for a temporary restraining order is included in a complaint and filed in a multi-sala RTC consisting of Branches 1,2,3 and 4. Being urgent in nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the aforesaid application immediately raffled the case in the presence of the judges of Branches 2,3 and 4. The case was raffled to Branch 4 and judge thereof immediately issued a temporary restraining order. Is the temporary restraining order valid? Why? (5%)

ALTERNATIVE ANSWER:

The temporary restraining order is not valid because the question does not state that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. (Sec. 5 of Rule 58)

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: QUO WARRANTO

A group of businessmen formed an association in Cebu City calling itself Cars C. to distribute / sell cars in said city. It did not incorporate itself under the law nor did it have any government permit or license to conduct its business as such. The Solicitor General filed before a RTC in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars Co. The latter filed a motion to dismiss the petition on the ground of improper venue claiming that its main office and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? (5%)

GEN TOPIC: ADMISSIBILITY

Acting on a tip by an informant, police officers stopped a car being driven by D and ordered him to open the trunk. The officers found a bag containing several kilos of cocaine. They seized the car and the cocaine as evidence and placed D under arrest. Without advising him of his right to remain silent and to have the assistance of an attorney, they questioned him regarding the cocaine. In reply, D said, “I don’t know anything about it. It isn’t even my car.” D was charged with illegal possession of cocaine, a prohibited drug. Upon motion of D, the court suppressed the use of cocaine as evidence and dismissed the charges against him. D commenced proceedings against the police for the recovery of his car. In his direct examination, D testified that he owned the car but had registered it in the name of a friend for convenience. On cross-examination, the attorney representing the police asked, “After your arrest, did you not tell the arresting officers that it wasn’t your car?” If you were D’s attorney, would you object to the question? Why? (5%)

ALTERNATIVE ANSWER:

Yes, because the question did not lay the predicate to justify the cross-examination question.

GEN TOPIC: PROBATE OF WILL

SPECIFIC: MANDATORY IN NATURE

What should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate? Explain. (2%)

GEN TOPIC: INTESTATE PROCEEDINGS

SPECIFIC: DEBTS OF THE ESTATE

A, B and C, the only heirs in D’s intestate proceedings, submitted a project of partition to the partition, two lots were assigned to C, who immediately entered into the possession of the lots. Thereafter, C died and proceedings for the settlement of his estate were filed in the RTC-Quezon City. D’s administrator then filed a motion in the probate court (RTC-Manila), praying that one of the lots assigned to C in the project of partition be turned over to him to satisfy debts corresponding to C’s portion. The motion was opposed by the administrator of C’s estate. How should the RTC-Manila resolve the motion of D’s administrator? Explain. (3%)

GEN TOPIC: ESCHEAT PROCEEDINGS

Suppose the property of D was declared escheated on July 1, 1990 in escheat proceedings brought by the Solicitor General. Now, X, who claims to be an heir of D, filed an action to recover the escheated property. Is the action viable? Why? (2%)

GEN TOPIC: INFORMATION

SPECIFIC: AMENDMENT OF INFORMATION

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? (2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? Explain (3%)

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? (2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? Explain (3%)

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

GEN TOPIC: HEARSAY EVIDENCE

Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a witness in court, testifies that Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the accident, give an excited account of the accident immediately after its occurrence. Is Julieta’s testimony admissible against Romeo over proper and timely objection? Why? (5%)

GEN TOPIC: ACQUITTAL

which she allegedly sustained when she was struck by a car driven by Victor. May the court receive in evidence, over proper and timely objection by Delia, a certified true copy of a judgment of acquittal in a criminal prosecution charging Victor with hit-and-run driving in connection with Delia’s injuries? Why? (3%)

ALTERNATIVE ANSWER:

If the judgment of acquittal is based on reasonable doubt, the court may receive it in evidence because in such case, the civil action for damages which may be instituted requires only a preponderance of the evidence. (Art. 29, Civil Code).

GEN TOPIC: BAIL

D was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court ordered the prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine whether the evidence of D’s guilt was strong for purposes of bail. Is the ruling correct? Why? (3%)

GEN TOPIC: DOUBLE JEOPARDY

D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution had presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of D, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed D to present his evidence. Before the next date of trial came, however, D moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then filed an information in the RTC, charging D with direct assault based on the same facts alleged in the information for slight physical injuries but with the added allegation that D inflicted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. D moved to quash the second information on the ground that its filing had placed him in double jeopardy. How should D’s motion to quash be resolved? (4%)

GEN TOPIC: PLEA OF GUILTY TO A LESSER OFFENSE

D was charged with theft of an article worth p15,000.00. Upon being arraigned, he pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea of not guilty to a plea of guilt but only to estafa involving P5,000.00. Can the court allow D to change his plea? Why? (2%)

No, because a plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included in theft of an article worth P15,000.00

GEN TOPIC: WITNESSES

SPECIFIC: EXAMINATION OF WITNESSES

Is this question on direct examination objectionable: “What happened on July 12, 1999”? Why? (2%) SUGGESTED ANSWER: The question is objectionable because it has no basis, unless before the question is asked the proper basis is laid.

GEN TOPIC: PROVISIONAL DISMISSAL

In a prosecution for robbery against D, the prosecutor moved for the postponement of the first scheduled hearing on the ground that he had lost his records of the case. The court granted the motion but, when the new date of trial arrived, the prosecutor, alleging that he could not locate his witnesses, moved for the provisional dismissal of the case. If D’s counsel does not object, may the court grant the motion of the prosecutor? Why? (3%)

GEN TOPIC: JURISDICTION

SPECIFIC: MTC

P sued A and B in one complaint in the RTC-Manila, the cause of action against A being on an overdue promissory note for P300,000.00 and that against B being on an alleged balance of P300,000.00 on the purchase price of goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Explain. (3%)

GEN TOPIC: JURISDICTIONS

SPECIFIC: RTC

P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for attorney’s fees and litigation expenses. Can A move to dismiss the case on the ground that the court has no jurisdiction over the subject matter? Explain. (2%)

GEN TOPIC: ACTIONS

SPECIFIC: CAUSE OF ACTIONS

SPECIFIC: MOTIONS TO DISMISS

Rolando filed a petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological incapacity of the latter.

After trial, the court rendered judgment dismissing the petition on the ground that Rolando failed to prove the psychological incapacity of his wife. The judgment having become final, Rolando filed another petition, this time on the ground that his marriage to Carmela had been celebrated without a license. Is the second action barred by the judgment in the first? Why? (2%)

GEN TOPIC: ACTIONS

SPECIFIC: COUNTERCLAIM

The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact had encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed against the plaintiff for damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to answer the defendant’s counterclaim, but the court denied the motion on the ground that it should have been set for hearing. On the defendant’s motion, therefore, the court declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared in default? Why? (5%)

No, the plaintiff was not validly declared in default. A motion for extension of time to file an answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].

ALTERNATIVE ANSWER:

The general rule is that a counterclaim must be answered within ten (10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are deemed automatically joined by the allegations of the Complaint need not be answered. [Gojo v. Goyala, 35 SCRA 557 (1970)].

In this case, the defendant’s counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and occurrence constituting the subject matter of the plaintiff’s claim. It raises the same issue of who encroached on whose land. Hence, there was no need to answer the counterclaim

Actions; Counterclaim (2002)

The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of which were stated in the complaint and a photocopy attached to the complaint as an annex. Before answering, the defendant filed a motion for an order directing the plaintiff to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts.

1 Should the judge grant the defendant’s motion for production and inspection of the original of the promissory note? Why? (2%)

2 Assuming that an order for production and inspection was issued but the plaintiff failed to comply with it, how should the defendant plead to the alleged execution of the note? (3%)

(2) The defendant is not required to deny under oath the genuineness and due execution of the promissory note, because of the non-compliance by the plaintiff with the order for production and inspection of the original thereof. (Rule 8, sec. 8).

ALTERNATIVE ANSWER:

(2) The defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]

GEN TOPIC DISCOVERY PRODUCTION INSPECTION OF DOCUMENTS

The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of which were stated in the complaint and a photocopy attached to the complaint as an annex. Before answering, the defendant filed a motion for an order directing the plaintiff to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts.

1 Should the judge grant the defendant’s motion for production and inspection of the original of the promissory note? Why? (2%)

2 Assuming that an order for production and inspection was issued but the plaintiff failed to comply with it, how should the defendant plead to the alleged execution of the note? (3%)

(2) The defendant is not required to deny under oath the genuineness and due execution of the promissory note, because of the non-compliance by the plaintiff with the order for production and inspection of the original thereof. (Rule 8, sec. 8).

ALTERNATIVE ANSWER:

(2) The defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]

GEN TOPIC: JUDGMENT

SPECIFIC: EXECUTION PENDING APPEAL

The trial court rendered judgment ordering the defendant to pay the plaintiff moral and exemplary damages. The judgment was served on the plaintiff on October 1, 2001 and on the defendant on October 5, 2001. On October 8, 2001, the defendant filed a notice of appeal from the judgment, but the following day, October 9, 2001, the plaintiff moved for the execution of the judgment pending appeal. The trial court granted the motion upon the posting by the plaintiff of a bond to indemnify the defendant for damages it may suffer as a result of the execution. The court gave as a special reason for its order the imminent insolvency of the defendant. Is the order of execution pending appeal correct? Why? (5%)

No, because awards for moral and exemplary damages cannot be the subject of execution pending appeal. The execution of any award for moral and exemplary damages is dependent on the outcome of the main case. Liabilities for moral and exemplary damages, as well as the exact amounts remain uncertain and indefinite pending resolution by the Court of Appeals or Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985); International School, Inc. v. Court of Appeals, 309 SCRA 474 (1999)].

ALTERNATIVE ANSWER:

Yes, because only moral and exemplary damages are awarded in the judgment and they are not dependent on other types of damages.

Moreover, the motion for execution was filed while the court had jurisdiction over the case and was in possession of the original record.

It is based on good reason which is the imminent insolvency of the defendant. (Rule 39, sec. 2)

2002

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: ACTION FOR ANNULMENT

May an order denying the probate of a will still be overturned after the period to appeal therefrom has lapsed? Why? (3%)

Yes, an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed. A PETITION FOR RELIEF may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period of sixty (60) days after the petitioner learns of the judgment or final order and not more than six (6) months after such judgment or final order was entered [Rule 38, secs. 1 & 3; Soriano v. Asi, 100 Phil. 785 (1957)].

An ACTION FOR ANNULMENT may also be filed on the ground of extrinsic fraud within four (4) years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 & 3)

GEN TOPIC: JUDGEMENT

SPECIFIC 1: SOUNDNESS

SPECIFIC 2: ATTACHMENT

The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied on the defendant’s property, but it was discharged upon the posting by the defendant of a counterbond in the same amount of P1 million. After trial, the court rendered judgment finding that the plaintiff had no cause of action against the defendant and that he had sued out the writ of attachment maliciously. Accordingly, the court dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the defendant P1.5 million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate the soundness of the judgment from the point of view of procedure. (5%)

The judgment against the surety is not sound if due notice was not given to him of the applicant for damages. (Rule 57, sec. 20) Moreover, the judgment against the surety cannot exceed the amount of its counterbond of P1 million.

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: INJUNCTION

A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the enforcement of the judgment. After hearing, the RTC dismissed D’s petition, whereupon P immediately moved for the execution of the judgment in his favor. Should P’s motion be granted? Why? (3%)

P’s immediate motion for execution of the judgment in his favor should be granted because the dismissal of D’s petition for relief also dissolves the writ of preliminary injunction staying the enforcement of the judgment, even if the dismissal is not yet final. [Golez v. Leonidas, 107 SCRA 187 (1981)]

GEN TOPIC: JUDGMENTS

SPECIFIC 1: ENFORCEMENT

SPECIFIC 2: EXAMINATION OF DEFENDANT

The plaintiff, a Manila resident, sued the defendant, a resident of Malolos Bulacan, in the RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of the complaint on the defendant at his Bulacan residence, the sheriff was told that the defendant had gone to Manila for business and would not be back until the evening of that day. So, the sheriff served the summons, together with a copy of the complaint, on the defendant’s 18-year-old daughter, who was a college student. For the defendant’s failure to answer the complaint within the reglementary period, the trial court, on motion of the plaintiff, declared the defendant in default. A month later, the trial court rendered judgment holding the defendant liable for the entire amount prayed for in the complaint.

A. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the defendant to appear before it and to be examined regarding his property and income. How should the court resolve the motion? (2%)

GEN TOPIC: REMEDIES

SPECIFIC 1: APPEALS TO SC

SPECIFIC 2: APPEALS TO CA

a) What are the modes of appeal to the Supreme Court? (2%)

b) Comment on a proposal to amend Rule 122, Section 2(b), in relation to Section 3(c), of the Revised Rules of Criminal Procedure to provide for appeal to the Court of Appeals from the decisions of the RTC in criminal cases, where the penalty imposed is reclusion perpetua or life imprisonment, subject to the right of the accused to appeal to the Supreme Court. (3%)

A. The modes of appeal to the Supreme Court are: (a) APPEAL BY CERTIORARI on pure questions of law under Rule 45 through a petition for review on certiorari; and (b) ORDINARY APPEAL in criminal cases through a notice of appeal from convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty is involved but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the death penalty are elevated through automatic review.

B. There is no constitutional objection to providing in the Rules of Court for an appeal to the Court of Appeals from the decisions of the RTC in criminal cases where the penalty imposed is reclusion perpetua or life imprisonment subject to the right of the accused to appeal to the Supreme Court, because it does not deprive the Supreme Court of the right to exercise ultimate review of the judgments in such cases

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: PETITION FOR CERTIORARI

The defendant was declared in default in the RTC for his failure to file an answer to a complaint for a sum of money. On the basis of the plaintiff’s ex parte presentation of evidence, judgment by default was rendered against the defendant. The default judgment was served on the defendant on October 1, 2001. On October 10, 2001, he files a verified motion to lift the order of default and to set aside the judgment. In his motion, the defendant alleged that, immediately upon receipt of the summon, he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendant’s motion because it was not accompanied by an affidavit of merit. The defendant filed a special civil action for certiorari under Rule 65 challenging the denial order.

A. Is certiorari under Rule 65 the proper remedy? Why? (2%)

B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in denying the defendant’s motion to lift the order of default judgment? Why? (3%)

A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy because appeal is not a plain, speedy and adequate remedy in the ordinary course of law. In appeal, the defendant in default can only question the decision in the light of the evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.

ALTERNATIVE ANSWER:

A. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or file a petition for relief from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA 391 (1995)

B. Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction in denying the defendant’s motion because it was not accompanied by a separate affidavit of merit. In his verified motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately upon the receipt of the summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was already incorporated in the verified motion, there was not need for a separate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]

2002

GEN TOPIC: ADMISSIBILITY

Acting on a tip by an informant, police officers stopped a car being driven by D and ordered him to open the trunk. The officers found a bag containing several kilos of cocaine. They seized the car and the cocaine as evidence and placed D under arrest. Without advising him of his right to remain silent and to have the assistance of an attorney, they questioned him regarding the cocaine. In reply, D said, “I don’t know anything about it. It isn’t even my car.” D was charged with illegal possession of cocaine, a prohibited drug. Upon motion of D, the court suppressed the use of cocaine as evidence and dismissed the charges against him. D commenced proceedings against the police for the recovery of his car. In his direct examination, D testified that he owned the car but had registered it in the name of a friend for convenience. On cross-examination, the attorney representing the police asked, “After your arrest, did you not tell the arresting officers that it wasn’t your car?” If you were D’s attorney, would you object to the question? Why? (5%)

Yes, because his admission made when he was questioned after he was placed under arrest was in violation of his constitutional right to be informed of his right to remain silent and to have competent and independent counsel of his own choice. Hence, it is inadmissible in evidence. [Constitution, Art. III, sec. 12; R.A. 7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].

ALTERNATIVE ANSWER:

Yes, because the question did not lay the predicate to justify the cross-examination question.

GEN TOPIC: PROBATE OF WILL

SPECIFIC: MANDATORY IN NATURE

What should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate? Explain. (2%)

If a will is found in the course of intestate proceedings and it is submitted for probate, the intestate proceedings will be suspended until the will is probated. Upon the probate of the will, the intestate proceedings will be terminated. (Rule 82, sec. 1).

GEN TOPIC: INTESTATE PROCEEDINGS

SPECIFIC: DEBTS OF THE ESTATE

A, B and C, the only heirs in D’s intestate proceedings, submitted a project of partition to the partition, two lots were assigned to C, who immediately entered into the possession of the lots. Thereafter, C died and proceedings for the settlement of his estate were filed in the RTC-Quezon City. D’s administrator then filed a motion in the probate court (RTC-Manila), praying that one of the lots assigned to C in the project of partition be turned over to him to satisfy debts corresponding to C’s portion. The motion was opposed by the administrator of C’s estate. How should the RTC-Manila resolve the motion of D’s administrator? Explain. (3%)

The motion of D’s administrator should be granted. The assignment of the two lots to C was premature because the debts of the estate had not been fully paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85 (1967)].

GEN TOPIC: ESCHEAT PROCEEDINGS

Suppose the property of D was declared escheated on July 1, 1990 in escheat proceedings brought by the Solicitor General. Now, X, who claims to be an heir of D, filed an action to recover the escheated property. Is the action viable? Why? (2%)

No, the action is not viable. The action to recover escheated property must be filed within five years from July 1, 1990 or be forever barred. (Rule 91, sec. 4).

GEN TOPIC: INFORMATION

SPECIFIC: AMENDMENT OF INFORMATION

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? (2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? Explain (3%)

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? (2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the information although this time for murder? Explain (3%)

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

GEN TOPIC: HEARSAY EVIDENCE

Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a witness in court, testifies that Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the accident, give an excited account of the accident immediately after its occurrence. Is Julieta’s testimony admissible against Romeo over proper and timely objection? Why? (5%)

No, Julieta’s testimony is not admissible against Romeo, because while the excited account of Antonio, a witness to the accident, was told to Romeo, it was only Romeo who told Julieta about it, which makes it hearsay.

GEN TOPIC: ACQUITTAL

which she allegedly sustained when she was struck by a car driven by Victor. May the court receive in evidence, over proper and timely objection by Delia, a certified true copy of a judgment of acquittal in a criminal prosecution charging Victor with hit-and-run driving in connection with Delia’s injuries? Why? (3%)

If the judgment of acquittal in the criminal case finds that the act or omission from which the civil liability may arise does not exist, the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2, last paragraph].

ALTERNATIVE ANSWER:

If the judgment of acquittal is based on reasonable doubt, the court may receive it in evidence because in such case, the civil action for damages which may be instituted requires only a preponderance of the evidence. (Art. 29, Civil Code).

GEN TOPIC: BAIL

D was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court ordered the prosecution to present its evidence in full on the ground that only on the basis of such presentation could it determine whether the evidence of D’s guilt was strong for purposes of bail. Is the ruling correct? Why? (3%)

No, the prosecution is only required to present as much evidence as is necessary to determine whether the evidence of D’s guilt is strong for purposes of bail.(Rule 114, sec. 8).

GEN TOPIC: DOUBLE JEOPARDY

D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution had presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of D, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed D to present his evidence. Before the next date of trial came, however, D moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then filed an information in the RTC, charging D with direct assault based on the same facts alleged in the information for slight physical injuries but with the added allegation that D inflicted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. D moved to quash the second information on the ground that its filing had placed him in double jeopardy. How should D’s motion to quash be resolved? (4%)

D’s motion to quash should be granted on the ground of double jeopardy because the first offense charged is necessarily included in the second offense charged. [Draculan v. Donato, 140 SCRA 425 (1985)].

GEN TOPIC: PLEA OF GUILTY TO A LESSER OFFENSE

D was charged with theft of an article worth p15,000.00. Upon being arraigned, he pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea of not guilty to a plea of guilt but only to estafa involving P5,000.00. Can the court allow D to change his plea? Why? (2%)

No, because a plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included in theft of an article worth P15,000.00

GEN TOPIC: WITNESSES

SPECIFIC: EXAMINATION OF WITNESSES

Is this question on direct examination objectionable: “What happened on July 12, 1999”? Why? (2%) SUGGESTED ANSWER: The question is objectionable because it has no basis, unless before the question is asked the proper basis is laid.

GEN TOPIC: PROVISIONAL DISMISSAL

In a prosecution for robbery against D, the prosecutor moved for the postponement of the first scheduled hearing on the ground that he had lost his records of the case. The court granted the motion but, when the new date of trial arrived, the prosecutor, alleging that he could not locate his witnesses, moved for the provisional dismissal of the case. If D’s counsel does not object, may the court grant the motion of the prosecutor? Why? (3%)

No, because a case cannot be provisionally dismissed except upon the express consent of the accused and with notice to the offended party. (Rule 117, sec. 8).

GEN TOPIC: JURISDICTION

SPECIFIC: MTC

P sued A and B in one complaint in the RTC-Manila, the cause of action against A being on an overdue promissory note for P300,000.00 and that against B being on an alleged balance of P300,000.00 on the purchase price of goods sold on credit. Does the RTC-Manila have jurisdiction over the case? Explain. (3%)

No, the RTC-Manila has no jurisdiction over the case. A and B could not be joined as defendants in one complaint because the right to relief against both defendants do not arise out of the same transaction or series of transactions and there is no common question of law or fact common to both. (Rule 3, sec. 6). Hence, separate complaints will have to be files and they would fall under the jurisdiction of the Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144 SCRA 377 (1986)].

GEN TOPIC: JURISDICTIONS

SPECIFIC: RTC

P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to his car and (4) P100,000.00 for attorney’s fees and litigation expenses. Can A move to dismiss the case on the ground that the court has no jurisdiction over the subject matter? Explain. (2%)

No, because the RTC-Manila has jurisdiction over the subject matter. P may sue A in one complaint asserting as many causes of action as he may have and since all the claims are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount claimed is P450,000.00, exclusive of the amount of P100,000.00 for attorney’s fees and expenses of litigation. Hence, the RTC-Manila has jurisdiction.

GEN TOPIC: ACTIONS

SPECIFIC: CAUSE OF ACTIONS

SPECIFIC: MOTIONS TO DISMISS

Rolando filed a petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological incapacity of the latter.

After trial, the court rendered judgment dismissing the petition on the ground that Rolando failed to prove the psychological incapacity of his wife. The judgment having become final, Rolando filed another petition, this time on the ground that his marriage to Carmela had been celebrated without a license. Is the second action barred by the judgment in the first? Why? (2%)

No, the second action is not barred by the judgment in the first because they are different causes of action. The first is for annulment of marriage on the ground of psychological incapacity under Article 36 of the Family Code, while the second is for declaration of nullity of the marriage in view of the absence of a basic requirement, which is a marriage license. [Arts, 9 & 35(3), Family Code]. They are different causes of action because the evidence required to prove them are not the same. [Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980) and other cases].

GEN TOPIC: ACTIONS

SPECIFIC: COUNTERCLAIM

The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s encroachment on the plaintiff’s lot. In his answer, the defendant denied the plaintiff’s claim and alleged that it was the plaintiff who in fact had encroached on his (defendant’s) land. Accordingly, the defendant counterclaimed against the plaintiff for damages resulting from the alleged encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to answer the defendant’s counterclaim, but the court denied the motion on the ground that it should have been set for hearing. On the defendant’s motion, therefore, the court declared the plaintiff in default on the counterclaim. Was the plaintiff validly declared in default? Why? (5%)

No, the plaintiff was not validly declared in default. A motion for extension of time to file an answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].

ALTERNATIVE ANSWER:

The general rule is that a counterclaim must be answered within ten (10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are deemed automatically joined by the allegations of the Complaint need not be answered. [Gojo v. Goyala, 35 SCRA 557 (1970)].

In this case, the defendant’s counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and occurrence constituting the subject matter of the plaintiff’s claim. It raises the same issue of who encroached on whose land. Hence, there was no need to answer the counterclaim

Actions; Counterclaim (2002)

The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of which were stated in the complaint and a photocopy attached to the complaint as an annex. Before answering, the defendant filed a motion for an order directing the plaintiff to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts.

1 Should the judge grant the defendant’s motion for production and inspection of the original of the promissory note? Why? (2%)

2 Assuming that an order for production and inspection was issued but the plaintiff failed to comply with it, how should the defendant plead to the alleged execution of the note? (3%)

(1) Yes, because upon motion of any party showing good cause, the court in which the action is pending may order any party to produce and permit the inspection of designated documents. (Rule 27). The defendant has the right to inspect and verify the original of the promissory note so that he could intelligently prepare his answer.

(2) The defendant is not required to deny under oath the genuineness and due execution of the promissory note, because of the non-compliance by the plaintiff with the order for production and inspection of the original thereof. (Rule 8, sec. 8).

ALTERNATIVE ANSWER:

(2) The defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]

GEN TOPIC DISCOVERY PRODUCTION INSPECTION OF DOCUMENTS

The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of which were stated in the complaint and a photocopy attached to the complaint as an annex. Before answering, the defendant filed a motion for an order directing the plaintiff to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts.

1 Should the judge grant the defendant’s motion for production and inspection of the original of the promissory note? Why? (2%)

2 Assuming that an order for production and inspection was issued but the plaintiff failed to comply with it, how should the defendant plead to the alleged execution of the note? (3%)

(1) Yes, because upon motion of any party showing good cause, the court in which the action is pending may order any party to produce and permit the inspection of designated documents. (Rule 27). The defendant has the right to inspect and verify the original of the promissory note so that he could intelligently prepare his answer.

(2) The defendant is not required to deny under oath the genuineness and due execution of the promissory note, because of the non-compliance by the plaintiff with the order for production and inspection of the original thereof. (Rule 8, sec. 8).

ALTERNATIVE ANSWER:

(2) The defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]

GEN TOPIC: JUDGMENT

SPECIFIC: EXECUTION PENDING APPEAL

The trial court rendered judgment ordering the defendant to pay the plaintiff moral and exemplary damages. The judgment was served on the plaintiff on October 1, 2001 and on the defendant on October 5, 2001. On October 8, 2001, the defendant filed a notice of appeal from the judgment, but the following day, October 9, 2001, the plaintiff moved for the execution of the judgment pending appeal. The trial court granted the motion upon the posting by the plaintiff of a bond to indemnify the defendant for damages it may suffer as a result of the execution. The court gave as a special reason for its order the imminent insolvency of the defendant. Is the order of execution pending appeal correct? Why? (5%)

No, because awards for moral and exemplary damages cannot be the subject of execution pending appeal. The execution of any award for moral and exemplary damages is dependent on the outcome of the main case. Liabilities for moral and exemplary damages, as well as the exact amounts remain uncertain and indefinite pending resolution by the Court of Appeals or Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985); International School, Inc. v. Court of Appeals, 309 SCRA 474 (1999)].

ALTERNATIVE ANSWER:

Yes, because only moral and exemplary damages are awarded in the judgment and they are not dependent on other types of damages.

Moreover, the motion for execution was filed while the court had jurisdiction over the case and was in possession of the original record.

It is based on good reason which is the imminent insolvency of the defendant. (Rule 39, sec. 2)

2002

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: ACTION FOR ANNULMENT

May an order denying the probate of a will still be overturned after the period to appeal therefrom has lapsed? Why? (3%)

Yes, an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed. A PETITION FOR RELIEF may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period of sixty (60) days after the petitioner learns of the judgment or final order and not more than six (6) months after such judgment or final order was entered [Rule 38, secs. 1 & 3; Soriano v. Asi, 100 Phil. 785 (1957)].

An ACTION FOR ANNULMENT may also be filed on the ground of extrinsic fraud within four (4) years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 & 3)

GEN TOPIC: JUDGEMENT

SPECIFIC 1: SOUNDNESS

SPECIFIC 2: ATTACHMENT

The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied on the defendant’s property, but it was discharged upon the posting by the defendant of a counterbond in the same amount of P1 million. After trial, the court rendered judgment finding that the plaintiff had no cause of action against the defendant and that he had sued out the writ of attachment maliciously. Accordingly, the court dismissed the complaint and ordered the plaintiff and its surety to pay jointly to the defendant P1.5 million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate the soundness of the judgment from the point of view of procedure. (5%)

The judgment against the surety is not sound if due notice was not given to him of the applicant for damages. (Rule 57, sec. 20) Moreover, the judgment against the surety cannot exceed the amount of its counterbond of P1 million.

GEN TOPIC: PETITION FOR RELIEF

SPECIFIC: INJUNCTION

A default judgment was rendered by the RTC ordering D to pay P a sum of money. The judgment became final, but D filed a petition for relief and obtained a writ of preliminary injunction staying the enforcement of the judgment. After hearing, the RTC dismissed D’s petition, whereupon P immediately moved for the execution of the judgment in his favor. Should P’s motion be granted? Why? (3%)

P’s immediate motion for execution of the judgment in his favor should be granted because the dismissal of D’s petition for relief also dissolves the writ of preliminary injunction staying the enforcement of the judgment, even if the dismissal is not yet final. [Golez v. Leonidas, 107 SCRA 187 (1981)]

GEN TOPIC: JUDGMENTS

SPECIFIC 1: ENFORCEMENT

SPECIFIC 2: EXAMINATION OF DEFENDANT

The plaintiff, a Manila resident, sued the defendant, a resident of Malolos Bulacan, in the RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of the complaint on the defendant at his Bulacan residence, the sheriff was told that the defendant had gone to Manila for business and would not be back until the evening of that day. So, the sheriff served the summons, together with a copy of the complaint, on the defendant’s 18-year-old daughter, who was a college student. For the defendant’s failure to answer the complaint within the reglementary period, the trial court, on motion of the plaintiff, declared the defendant in default. A month later, the trial court rendered judgment holding the defendant liable for the entire amount prayed for in the complaint.

A. After the judgment had become final, a writ of execution was issued by the court. As the writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the defendant to appear before it and to be examined regarding his property and income. How should the court resolve the motion? (2%)

GEN TOPIC: REMEDIES

SPECIFIC 1: APPEALS TO SC

SPECIFIC 2: APPEALS TO CA

a) What are the modes of appeal to the Supreme Court? (2%)

b) Comment on a proposal to amend Rule 122, Section 2(b), in relation to Section 3(c), of the Revised Rules of Criminal Procedure to provide for appeal to the Court of Appeals from the decisions of the RTC in criminal cases, where the penalty imposed is reclusion perpetua or life imprisonment, subject to the right of the accused to appeal to the Supreme Court. (3%)

A. The modes of appeal to the Supreme Court are: (a) APPEAL BY CERTIORARI on pure questions of law under Rule 45 through a petition for review on certiorari; and (b) ORDINARY APPEAL in criminal cases through a notice of appeal from convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty is involved but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense. (Rule 122, sec. 3) Convictions imposing the death penalty are elevated through automatic review.

B. There is no constitutional objection to providing in the Rules of Court for an appeal to the Court of Appeals from the decisions of the RTC in criminal cases where the penalty imposed is reclusion perpetua or life imprisonment subject to the right of the accused to appeal to the Supreme Court, because it does not deprive the Supreme Court of the right to exercise ultimate review of the judgments in such cases

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: PETITION FOR CERTIORARI

The defendant was declared in default in the RTC for his failure to file an answer to a complaint for a sum of money. On the basis of the plaintiff’s ex parte presentation of evidence, judgment by default was rendered against the defendant. The default judgment was served on the defendant on October 1, 2001. On October 10, 2001, he files a verified motion to lift the order of default and to set aside the judgment. In his motion, the defendant alleged that, immediately upon receipt of the summon, he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court denied the defendant’s motion because it was not accompanied by an affidavit of merit. The defendant filed a special civil action for certiorari under Rule 65 challenging the denial order.

A. Is certiorari under Rule 65 the proper remedy? Why? (2%)

B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in denying the defendant’s motion to lift the order of default judgment? Why? (3%)

A. The petition for certiorari under Rule 65 filed by the defendant is the proper remedy because appeal is not a plain, speedy and adequate remedy in the ordinary course of law. In appeal, the defendant in default can only question the decision in the light of the evidence of the plaintiff. The defendant cannot invoke the receipt to prove payment of his obligation to the plaintiff.

ALTERNATIVE ANSWER:

A. Under ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal from the judgment by default or file a petition for relief from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA 391 (1995)

B. Yes, the trial court gravely abused its discretion or acted without or in excess of jurisdiction in denying the defendant’s motion because it was not accompanied by a separate affidavit of merit. In his verified motion to lift the order of default and to set aside the judgment, the defendant alleged that immediately upon the receipt of the summons, he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. Since the good defense of the defendant was already incorporated in the verified motion, there was not need for a separate affidavit of merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)]

2003

Gen Topic-Special Civil Action; Foreclosure

A borrowed from the Development Bank of the Philippines (DBP) the amount of P1 million secured by the titled land of his friend B who, however, did not assume personal liability for the loan. A defaulted and DBP filed an action for judicial foreclosure of the real estate mortgage impleading A and B as defendants. In due course, the court rendered judgment directing A to pay the outstanding account of P1.5 million (principal plus interest) to the bank. No appeal was taken by A on the Decision within the reglementary period. A failed to pay the judgment debt within the period specified in the decision. Consequently, the court ordered the foreclosure sale of the mortgaged land. In that foreclosure sale, the land was sold to the DBP for P1.2 million. The sale was subsequently confirmed by the court, and the confirmation of the sale was registered with the Registry of Deeds on 05 January 2002.

On 10 January 2003, the bank filed an ex-parte motion with the court for the issuance of a writ of possession to oust B from the land. It also filed a deficiency claim for P800,000.00 against A and B. the deficiency claim was opposed by A and B.

(a) Resolve the motion for the issuance of a writ of possession.

(b) Resolve the deficiency claim of the bank. 6%

(a) In judicial foreclosure by banks such as DBP, the mortgagor or debtor whose real property has been sold on foreclosure has the right to redeem the property sold within one year after the sale (or registration of the sale). However, the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The General Banking Law of 2000). The motion for writ of possession, however, cannot be filed ex parte. There must be a notice of hearing.

(b) The deficiency claim of the bank may be enforced against the mortgage debtor A, but it cannot be enforced against B, the owner of the mortgaged property, who did not assume personal liability for the loan.

Gen Topic-Provisional Remedies; Injunction

Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front? (4%)

No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of the Philippines from entering into a peace agreement with the National Democratic Front, which is a purely political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of the Philippines is immune from suit.

Gen Topic-Pleadings; Motions; Bill of Particulars

1 When can a bill of particulars be availed of?

2 What is the effect of non-compliance with the order of a bill of particulars? 4%

1 Before responding to a pleading, a party may move for a bill or particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10) days from service thereof. (Sec. 1 of Rule 12)

2 If the order is not complied with, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. (Sec. 4 of Rule 12)

Gen Topic-Pleadings; Amendment of Complaint; By Leave of Court

After an answer has been filed, can the plaintiff amend his complaint, with leave of court, by changing entirely the nature of the action? 4%

Yes, the present rules allow amendments substantially altering the nature of the cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870 [1997]).

This should only be true, however, when the substantial change or alteration in the cause of action or defense shall serve the higher interests of substantial justice and prevent delay and equally promote the laudable objective of the rules which is to secure a just, speedy and inexpensive disposition of every action and proceeding. (Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).

Demurrer to Evidence; Civil Case vs. Criminal Case (2003)

Compare the effects of a denial of demurrer to evidence in a civil case with those of a denial of demurrer to evidence in a criminal case. 4%

In a civil case, the defendant has the right to file a demurrer to evidence without leave of court. If his demurrer is denied, he has the right to present evidence. If his demurrer is granted and on appeal by the plaintiff, the appellate court reverses the order and renders judgment for the plaintiff, the defendant loses his right to present evidence. (Rule 33).

In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If he obtains leave of court and his demurrer to evidence is denied, he has the right to present evidence in his defense. If his demurrer to evidence is granted, he is acquitted and the prosecution cannot appeal.

If the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to present evidence and the case is decided on the basis of the evidence for the prosecution.

The court may also dismiss the action on the ground of insufficiency of the evidence on its own initiative after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)

Gen Topic-Appeals; Period of Appeal; Fresh Period Rule

Defendant X received an adverse Decision of the RTC in an ordinary civil case on 02 January 2003. He filed a Notice of Appeal on 10 January 2003. On the other hand, plaintiff A received the same Decision on 06 January 2003 and, on 19 January 2003, filed a Motion for Reconsideration of the Decision. On 13 January 2003, defendant X filed a Motion withdrawing his notice of appeal in order to file a Motion for New Trial which he attached. On 20 January 2003, the court denied A’s Motion for Reconsideration and X’s Motion to Withdraw Notice of Appeal. Plaintiff A received the Order denying his Motion for Reconsideration on 03 February 2003 and filed his Notice of Appeal on 05 February 2003. The court denied due course to A’s Notice of Appeal on the ground that he period to appeal had already lapsed. 6%

(a) Is the court’s denial of X’s Motion to Withdraw Notice of Appeal proper?

(b) Is the court’s denial of due course to A’s appeal correct?

(a) No, the court’s denial of X’s Motion to Withdraw Notice of Appeal is not proper, because the period of appeal of X has not yet expired. From January 2, 2003 when X received a copy of the adverse decision up to January 13, 2003 when he filed his withdrawal of appeal and Motion for New Trial, only ten (10) days had elapsed and he had fifteen (15) days to do so.

(b) No, the court’s denial of due course to A’s appeal is not correct because the appeal was taken on time. From January 6, 2003 when A received a copy of the decision up to January 19, 2003 when he filed a Motion for Reconsideration, only twelve (12) days had elapsed. Consequently, he had three (3) days from receipt on February 3, 2003 of the Order denying his Motion for Reconsideration within which to appeal. He filed is notice of appeal on February 5, 2003, or only two (2) days later.

ALTERNATIVE ANSWER:

Since A’s Motion for Reconsideration was filed on January 19, 2003 and it was denied on January 20, 2003, it was clearly not set for hearing with at least three days’ notice. Therefore, the motion was pro forma and did not interrupt the period of appeal which expired on January 21, 2003 or fifteen (15) days after notice of the decision on January 6, 2003.

NOTE: To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a FRESH PERIOD of 15 days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. [Neypes et. al. vs. CA, G.R. No. 141524, September 14, 2005]

Gen Topic-Jurisdiction; Incapable of Pecuniary Estimation

A filed with the MTC of Manila an action for specific performance against B, a resident of Quezon City, to compel the latter to execute a deed of conveyance covering a parcel of land situated in Quezon City having an assessed value of p19,000.00. B received the summons and a copy of the Complaint on 02 January 2003. On 10 January 2003, B filed a Motion to Dismiss the Complaint on the ground of lack of jurisdiction contending that the subject matter of the suit was incapable of pecuniary estimation. The court denied the motion. In due time, B filed with the RTC a Petition for Certiorari praying that the said Order be set aside because the MTC had no jurisdiction over the case. 6% On 13 February 2003, A filed with the MTC a motion to declare B in default. The motion was opposed by B on the ground that his Petition for Certiorari was still pending.

(a) Was the denial of the Motion to Dismiss the Complaint correct?

(b) Resolve the Motion to Declare the Defendant in Default.

(a) The denial of the Motion to Dismiss the Complaint was not correct. Although the assessed value of the parcel of land involved was P19,000.00, within the jurisdiction of the MTC of Manila, the action filed by A for Specific Performance against B to compel the latter to execute a Deed of Conveyance of said parcel of land was not capable of pecuniary estimation and, therefore, the action was within the jurisdiction of RTC. (Russel v. Vestil, 304 SCRA 738 [1999]; Copioso v. Copioso, G.R. No. 149243, October 28,2002; Cabutihan v. Landcenter Construction, 383 SCRA 353 [2002]).

ALTERNATIVE ANSWER:

If the action affects title to or possession of real property then it is a real action and jurisdiction is determined by the assessed value of the property. It is within the jurisdiction therefore of the Metropolitan Trial Court.

(b) The Court could declare B in default because B did not obtain a writ of preliminary injunction or a temporary restraining order from the RTC prohibiting the judge from proceeding in the case during the pendency of the petition for certiorari. (Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002].

ALTERNATIVE ANSWER:

The Court should not declare B in default inasmuch as the jurisdiction of MTC was put in issue in the Petition For Certiorari filed with the RTC. The MTC should defer further proceedings pending the result of such petition. (Eternal Gardens Memorial Park Corporation v. Court of Appeals, 164 SCRA 421 [1988]).

Gen Topic-Jurisdiction; Complex Crimes

In complex crimes, how is the jurisdiction of a court determined? 4%

In a complex crime, jurisdiction over the whole complex crime must be lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. (Cuyos v. Garcia, 160 SCRA 302 [1988]).

Gen Topic-Dismissal; Failure to Prosecute

When a criminal case is dismissed on nolle prosequi, can it later be refilled? (4%)

As a general rule, when a criminal case is dismissed on nolle prosequi before the accused is placed on trial and before he is called on to plead, this is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense. (Galvez v. Court of Appeals, 237 SCRA 685 [1994]).

Gen Topic-Arrest; Warrantless Arrests & Seizures

In a buy-bust operation, the police operatives arrested the accused and seized from him a sachet of shabu and an unlicensed firearm. The accused was charged in two Informations, one for violation of the “Dangerous Drug Act”, as amended, and another for illegal possession of firearms.

The accused filed an action for recovery of the firearm in another court against the police officers with an application for the issuance of a writ of replevin. He alleged in his Complaint that he was a military informer who had been issued a written authority to carry said firearm. The police officers moved to dismiss the complaint on the ground that the subject firearm was in custodia legis. The court denied the motion and instead issued the writ of replevin.

(a) Was the seizure of the firearm valid?

(b) Was the denial of the motion to dismiss proper? 6%

(a) Yes, the seizure of the firearm was valid because it was seized in the course of a valid arrest in a buy-bust operation. (Sec. 12 and 13 of Rule 126) A search warrant was not necessary. (People v. Salazar, 266 SCRA 607 [1997]).

(b) The denial of the motion to dismiss was not proper. The court had no authority to issue the writ of replevin whether the firearm was in custodia legis or not. The motion to recover the firearm should be filed in the court where the criminal action is pending.

Gem Topic-Actions; BP22; Demurrer to Evidence

In an action for violation of Batas Pambansa Big. 22, the court granted the accused’s demurrer to evidence which he filed without leave of court. Although he was acquitted of the crime charged, he, however, was required by the court to pay the private complainant the face value of the check. The accused filed a Motion of Reconsideration regarding the order to pay the face value of the check on the following grounds:

a) the demurrer to evidence applied only too the criminal aspect of the case; and

b) at the very least, he was entitled to adduce controverting evidence on the civil liability. Resolve the Motion for Reconsideration. (6%)

(a) The Motion for Reconsideration should be denied. The ground that the demurrer to evidence applied only to the criminal aspect of the case was not correct because the criminal action for violation of Batas Pambansa Blg. 22 included the corresponding civil action. (Sec. 1(b) of Rule 111).

(b) The accused was not entitled to adduce controverting evidence on the civil liability, because he filed his demurrer to evidence without leave of court. (Sec. 23 of Rule 119).

Gen Topic-Preponderance vs. Substantial Evidence

Distinguish preponderance of evidence from substantial evidence. 4%

PREPONDERANCE OF EVIDENCE means that the evidence as a whole adduced by one side is superior to that of the other. This is applicable in civil cases. (Sec. 1 of Rule 133; Municipality of Moncada v. Cajuigan, 21 Phil, 184 [1912]).

SUBSTANTIAL EVIDENCE is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. This is applicable in case filed before administrative or quasi-judicial bodies. (Sec. 5 of Rule 133)

Gen Topic-Offer of Evidence; Res Inter Alios Acta

X and Y were charged with murder. Upon application of the prosecution, Y was discharged from the Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim but it was X who actually shot the victim. The testimony of Y was the only material evidence establishing the guilt of X. Y was thoroughly cross-examined by the defense counsel. After the prosecution rested its case, the defense filed a motion for demurrer to evidence based on the following grounds.

(a) The testimony of Y should be excluded because its purpose was not initially stated and it was not formally offered in evidence as required by Section 34, Rule 132 of the Revised Rules of Evidence; and

(b) Y’s testimony is not admissible against X pursuant to the rule on “res inter alios acta”. Rule on the motion for demurrer to evidence on the above grounds. (6%)

The demurrer to the evidence should be denied because:

a) The testimony of Y should not be excluded because the defense counsel did not object to his testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence. Moreover, the defense counsel thoroughly cross-examined Y and thus waived the objection.

b) The res inter alios acta rule does not apply because Y testified in open court and was subjected to cross examination.

Hearsay; Inapplicable (2003)

X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also filed against him. In a press conference called by the police, X admitted that he had robbed the victim of jewelry valued at P500,000.00.

The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the press conference stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer, however, was not presented as a witness. Both pieces of evidence were objected to by the defense. (6%)

a) Is the newspaper clipping admissible in evidence against X?

b) Is the certification of the PNP Firearm and Explosive Office without the certifying officer testifying on it admissible in evidence against X?

(a) Yes, the newspaper clipping is admissible in evidence against X. regardless of the truth or falsity of a statement, the hearsay rule does not apply and the statement may be shown where the fact that it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact. (Gotesco Investment Corporation vs. Chatto, 210 SCRA 18 [1992])

(b) Yes, the certification is admissible in evidence against X because a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (Sec. 28 of Rule 132).

Gen Topic-Probate of Will

A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth P200,000.00. In what court, taking into consideration the nature of jurisdiction and of venue, should the probate proceeding on the estate of A be instituted? (4%)

The probate proceeding on the estate of A should be instituted in the Municipal Trial Court of Malolos, Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is the court of proper venue because A was a resident of Malolos at the time of his death. (Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of Rule 73).

Gen Topic-Habeas Corpus

Widow A and her two children, both girls, aged 8 and 12 years old, reside in Angeles City, Pampanga. A leaves her two daughters in their house at night because she works in a brothel as a prostitute. Realizing the danger to the morals of these two girls, B, the father of the deceased husband of A, files a petition for habeas corpus against A for the custody of the girls in the Family Court in Angeles City. In said petition, B alleges that he is entitled to the custody of the two girls because their mother is living a disgraceful life. The court issues the writ of habeas corpus. When A learns of the petition and the writ, she brings her two children to Cebu City. At the expense of B the sheriff of the said Family Court goes to Cebu City and serves the writ on A. A files her comment on the petition raising the following defenses:

a) The enforcement of the writ of habeas corpus in Cebu City is illegal; and

b) B has no personality to institute the petition. 6% Resolve the petition in the light of the above defenses of A. (6%)

(a) The writ of habeas corpus issued by the Family Court in Angeles City may not be legally enforced in Cebu City, because the writ is enforceable only within the judicial region to which the Family Court belongs, unlike the writ granted by the Supreme Court or Court of Appeals which is enforceable anywhere in the Philippines. (Sec. 20 of Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102, Rules of Court.)

(b) B, the father of the deceased husband of A, has the personality to institute the petition for habeas corpus of the two minor girls, because the grandparent has the right of custody as against the mother A who is a prostitute. (Sectioins 2 and 13, Id.)

Gen Topic-Judicial Autonomy & Impartiality

In rendering a decision, should a court take into consideration the possible effect of its verdict upon the political stability and economic welfare of the nation? 4%

No, because a court is required to take into consideration only the legal issues and the evidence admitted in the case. The political stability and economic welfare of the nation are extraneous to the case. They can have persuasive influence but they are not the main factors that should be considered in deciding a case. A decision should be based on the law, rules of procedure, justice and equity. However, in exceptional cases the court may consider the political stability and economic welfare of the nation when these are capable of being taken into judicial notice of and are relevant to the case.

2004

Gen Topic-Summons; Substituted Service

Summons was issued by the MM RTC and actually received on time by defendant from his wife at their residence. The sheriff earlier that day had delivered the summons to her at said residence because defendant was not home at the time. The sheriffs return or proof of service filed with the court in sum states that the summons, with attached copy of the complaint, was served on defendant at his residence thru his wife, a person of suitable age and discretion then residing therein. Defendant moved to dismiss on the ground that the court had no jurisdiction over his person as there was no valid service of summons on him because the sheriffs return or proof of service does not show that the sheriff first made a genuine attempt to serve the summons on defendant personally before serving it thru his wife. Is the motion to dismiss meritorious? What is the purpose of summons and by whom may it be served? Explain. (5%)

The motion to dismiss is not meritorious because the defendant actually received the summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148 SCRA 541 [1987]). It is the duty of the court to look into the sufficiency of the service. The sheriffs negligence in not stating in his return that he first made a genuine effort to serve the summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417/1992). The purpose of the summons is to inform the defendant of the complaint filed against him and to enable the court to acquire jurisdiction over his person. It maybe served by the sheriff or his deputy or any person authorized by the court.

Remedies; Void Decision; Proper Remedy

After plaintiff in an ordinary civil action before the RTC; ZZ has completed presentation of his evidence, defendant without prior leave of court moved for dismissal of plaintiffs complaint for insufficiency of plaintiff’s evidence. After due hearing of the motion and the opposition thereto, the court issued an order, reading as follows: The Court hereby grants defendant’s motion to dismiss and accordingly orders the dismissal of plaintiff’s complaint, with the costs taxed against him. It is so ordered.” Is the order of dismissal valid? May plaintiff properly take an appeal? Reason. (5%)

The order or decision is void because it does not state findings of fact and of law, as required by Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36. Being void, appeal is not available. The proper remedy is certiorari under Rule 65.

Gen Topic-Pleadings; Counterclaim Against the Counsel of the Plaintiff

PX filed a suit for damages against DY. In his answer, DY incorporated a counterclaim for damages against PX and AC, counsel for plaintiff in said suit, alleging in said counterclaim, inter alia, that AC, as such counsel, maliciously induced PX to bring the suit against DY despite AC’s knowledge of its utter lack of factual and legal basis. In due time, AC filed a motion to dismiss the counterclaim as against him on the ground that he is not a proper party to the case, he being merely plaintiffs counsel. Is the counterclaim of DY compulsory or not? Should AC’s motion to dismiss the counterclaim be granted or not? Reason. (5%)

Yes. The counterclaim of DY is compulsory because it is one which arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.(Sec. 7 of Rule 6).

The motion to dismiss of plaintiffs counsel should not be granted because bringing in plaintiffs counsel as a defendant in the counterclaim is authorized by the Rules. Where it is required for the grant of complete relief in the determination of the counterclaim, the court shall order the defendant’s counsel to be brought in since jurisdiction over him can be obtained. (Sec. 12 of Rule 6; Aurelio v. Court of Appeals, 196 SCRA 674 [1994]). Here, the counterclaim was against both the plaintiff and his lawyer who allegedly maliciously induced the plaintiff to file the suit.

Gen Topic-Pleadings; Answer; Defense; Specific Denial

In his complaint for foreclosure of mortgage to which was duly attached a copy of the mortgage deed, plaintiff PP alleged inter alia as follows: (1) that defendant DD duly executed the mortgage deed, copy of which is Annex “A” of the complaint and made an integral part thereof; and (2) that to prosecute his complaint, plaintiff contracted a lawyer, CC, for a fee of P50.000. In his answer, defendant alleged, inter alia, that he had no knowledge of the mortgage deed, and he also denied any liability for plaintiffs contracting with a lawyer for a fee.

Does defendant’s answer as to plaintiff’s allegation no. 1 as well as no. 2 sufficiently raise an issue of fact? Reason briefly. (5%)

As to plaintiffs allegation no. 1, defendant does not sufficiently raise an issue of fact, because he cannot allege lack of knowledge of the mortgage deed since he should have personal knowledge as to whether he signed it or not and because he did not deny under oath the genuineness and due execution of the mortgage deed, which is an actionable document. As to plaintiff’s allegation no. 2, defendant did not properly deny liability as to plaintiffs contracting with a lawyer for a fee. He did not even deny for lack of knowledge. (Sec. 10 of Rule 8).

Gen Topic-Pleadings; Amendment of Complaint; To Conform w/ Evidence

During trial, plaintiff was able to present, without objection on the part of defendant in an ejectment case, evidence showing that plaintiff served on defendant a written demand to vacate the subject property before the commencement of the suit, a matter not alleged or otherwise set forth in the pleadings on file. May the corresponding pleading still be amended to conform to the evidence? Explain. (5%)

Yes. The corresponding pleading may still be amended to conform to the evidence, because the written demand to vacate, made prior to the commencement of the ejectment suit, was presented by the plaintiff in evidence without objection on the part of the defendant. Even if the demand to vacate was jurisdictional, still, the amendment proposed was to conform to the evidence that was already in the record and not to confer jurisdiction on the court, which is not allowed. Failure to amend, however, does not affect the result of the trial on these issues. (Sec. 5 of Rule 10).

Gen Topic-Jurisdiction; Lack of Jurisdiction; Proper Action of the Court

Plaintiff filed a complaint for a sum of money against defendant with the MeTC-Makati, the total amount of the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, being P1,000,000. In due time, defendant filed a motion to dismiss the complaint on the ground of the MeTC’s lack of jurisdiction over the subject matter. After due hearing, the MeTC (1) ruled that the court indeed lacked jurisdiction over the subject matter of the complaint; and (2) ordered that the case therefore should be forwarded to the proper RTC immediately. Was the court’s ruling concerning jurisdiction correct? Was the court’s order to forward the case proper? Explain briefly. (5%)

Yes. The MeTC did not have jurisdiction over the case because the total amount of the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, was P1M. Its jurisdictional amount at this time should not exceed P400.000.00 (Sec. 33 of B.P. Big. 129, as amended by R.A. No. 7691).

The court’s order to forward the case to the RTC is not proper. It should merely dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or order the amendment of the pleading but not to forward the case to another court.

Gen Topic-Jurisdiction; Lack of Jurisdiction; Proper Action of the Court

Plaintiff filed a complaint for a sum of money against defendant with the MeTC-Makati, the total amount of the demand, exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, being P1,000,000. In due time, defendant filed a motion to dismiss the complaint on the ground of the MeTC’s lack of jurisdiction over the subject matter. After due hearing, the MeTC (1) ruled that the court indeed lacked jurisdiction over the subject matter of the complaint; and (2) ordered that the case therefore should be forwarded to the proper RTC immediately. Was the court’s ruling concerning jurisdiction correct? Was the court’s order to forward the case proper? Explain briefly. (5%)

Yes. The MeTC did not have jurisdiction over the case because the total amount of the demand exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, was P1M. Its jurisdictional amount at this time should not exceed P400.000.00 (Sec. 33 of B.P. Big. 129, as amended by R.A. No. 7691).

The court’s order to forward the case to the RTC is not proper. It should merely dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the action or claim, deny the motion or order the amendment of the pleading but not to forward the case to another court.

Gen Topic-Judgment; Interlocutory Order; Partial Summary Judgments

After defendant has served and filed his answer to plaintiffs complaint for damages before the proper RTC, plaintiff served and filed a motion (with supporting affidavits) for a summary judgment in his favor upon all of his claims. Defendant served and filed his opposition (with supporting affidavits) to the motion. After due hearing, the court issued an order

(1) stating that the court has found no genuine issue as to any material fact and thus concluded that plaintiff is entitled to judgment in his favor as a matter of law except as to the amount of damages recoverable, and (2) accordingly ordering that plaintiff shall have judgment summarily against defendant for such amount as may be found due plaintiff for damages, to be ascertained by trial on October 7, 2004, at 8:30 o’clock in the morning. May defendant properly take an appeal from said order? Or, may defendant properly challenge said order thru a special civil action for certiorari? Reason. (5%)

No, plaintiff may not properly take an appeal from said order because it is an interlocutory order, not a final and appealable order (Sec. 4 of Rule 35). It does not dispose of the action or proceeding (Sec. 1 of Rule 39).

PARTIAL SUMMARY JUDGMENTS are interlocutory. There is still something to be done, which is the trial for the adjudication of damages (Province of Pangasinan v. Court of Appeals, 220 SCRA 726 [1993J; Guevarra v. Court of Appeals, 209 Phil. 241 [1983]), but the defendant may properly challenge said order thru a special civil action for certiorari. (Sec. 1 [c] and last par. of Rule 41)

Gen. Principles; Questions of Law vs. Questions of Fact

Distinguish Questions of law from Questions of fact.

A QUESTION OF LAW is when the doubt or difference arises as to what the law is on a certain set of facts, while a QUESTION OF FACT is when the doubt or difference arises as to the truth or falsehood of alleged facts. (Ramos v. Pepsi-Cola Bottling Co., 19 SCRA 289, [19670]).

Gen Topic-Judgments; Void Judgment

AX was charged before the YY RTC with theft of jewelry valued at P20.000, punishable with imprisonment of up to 10 years of prision mayor under the Revised Penal Code. After trial, he was convicted of the offense charged, notwithstanding that the material facts duly established during the trial showed that the offense committed was estafa, punishable by imprisonment of up to eight years of prision mayor under the said Code. No appeal having been taken therefrom, said judgment of conviction became final. Is the judgment of conviction valid? Is the said judgment reviewable thru a special civil action for certiorari? Reason. (5%)

Yes, the judgment of conviction for theft upon an information for theft is valid because the court had jurisdiction to render judgment. However, the judgment was grossly and blatantly erroneous. The variance between the evidence and the judgment of conviction is substantial since the evidence is one for estafa while the judgment is one for theft. The elements of the two crimes are not the same. (Lauro Santos v. People, 181 SCRA 487). One offense does not necessarily include or is included in the other. (Sec. 5 of Rule 120).

Pre-Trial Agreement

Mayor TM was charged of malversation through falsification of official documents. Assisted by Atty. OP as counsel de parte during pre-trial, he signed together with Ombudsman Prosecutor TG a “Joint Stipulation of Facts and Documents,” which was presented to the Sandiganbayan. Before the court could issue a pre-trial order but after some delay caused by Atty. OP, he was substituted by Atty. QR as defense counsel. Atty. QR forthwith filed a motion to withdraw the “Joint Stipulation,” alleging that it is prejudicial to the accused because it contains, inter alia, the statement that the “Defense admitted all the documentary evidence of the Prosecution,” thus leaving the accused little or no room to defend himself, and violating his right against self-incrimination. Should the court grant or deny QR’s motion? Reason. (5%)

The court should deny QR’s motion. If in the pre-trial agreement signed by the accused and his counsel, the accused admits the documentary evidence of the prosecution, it does not violate his right against self-incrimination. His lawyer cannot file a motion to withdraw. A pre-trial order is not needed. (Bayas v. Sandiganbayan, 391 SCRA 415(2002}). The admission of such documentary evidence is allowed by the rule. (Sec. 2 of Rule 118; People v. Hernandez, 260 SCRA 25 [1996]).

Extradition

RP and State XX have a subsisting Extradition Treaty. Pursuant thereto RP’s Secretary of Justice (SOJ) filed a Petition for Extradition before the MM RTC alleging that Juan Kwan is the subject of an arrest warrant duly issued by the proper criminal court of State XX in connection with a criminal case for tax evasion and fraud before his return to RP as a balikbayan. Petitioner prays that Juan be extradited and delivered to the proper authorities of State XX for trial, and that to prevent Juan’s flight in the interim, a warrant for his immediate arrest be issued. Before the RTC could act on the petition for extradition, Juan filed before it an urgent motion, in sum praying (1) that SoJ’s application for an arrest warrant be set for hearing and (2) that Juan be allowed to post bail in the event the court would issue an arrest warrant. Should the court grant or deny Juan’s prayers? Reason. (5%)

Under the Extradition Treaty and Law, the application of the Secretary of Justice for a warrant of arrest need not be set for hearing, and Juan cannot be allowed to post bail if the court would issue a warrant of arrest. The provisions in the Rules of Court on arrest and bail are not basically applicable. (Government of the United States of America v. Puruganan, 389 SCRA 623 [2002])

Gen Topic-Demurrer to Evidence; w/o Leave of Court

The information for illegal possession of firearm filed against the accused specifically alleged that he had no license or permit to possess the caliber .45 pistol mentioned therein. In its evidence-in-chief, the prosecution established the fact that the subject firearm was lawfully seized by the police from the possession of the accused, that is, while the pistol was tucked at his waist in plain view, without the accused being able to present any license or permit to possess the firearm. The prosecution on such evidence rested its case and within a period of five days therefrom, the accused filed a demurrer to evidence, in sum contending that the prosecution evidence has not established the guilt of the accused beyond reasonable doubt and so prayed that he be acquitted of the offense charged.

Gen Topic-Demurrer to Evidence; Contract of Carriage

AX, a Makati-bound paying passenger of PBU, a public utility bus, died instantly on board the bus on account of the fatal head wounds he sustained as a result of the strong impact of the collision between the bus and a dump truck that happened while the bus was still travelling on EDSA towards Makati. The foregoing facts, among others, were duly established on evidence-in-chief by the plaintiff TY, sole heir of AX, in TY’s action against the subject common carrier for breach of contract of carriage. After TY had rested his case, the common carrier filed a demurrer to evidence, contending that plaintiff’s evidence is insufficient because it did not show

(1) that defendant was negligent and

(2) that such negligence was the proximate cause of the collision. Should the court grant or deny defendant’s demurrer to evidence? Reason briefly. (5%)

No. The court should not grant defendant’s demurrer to evidence because the case is for breach of contract of carriage. Proof that the defendant was negligent and that such negligence was the proximate cause of the collision is not required. (Articles 1170 and 2201, Civil Code; (Mendoza v. Phil. Airlines, Inc., 90 Phil. 836 [1952]; Batangas Transportation Co. v. Caguimbal, 22 SCRA171 U 968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz v. Court of Appeals, 129 SCRA 95 [1984]).

The trial court denied the demurrer to evidence and deemed the accused as having waived his right to present evidence and submitted the case for judgment on the basis of the prosecution evidence. In due time, the court rendered judgment finding the accused guilty of the offense charged beyond reasonable doubt and accordingly imposing on him the penalty prescribed therefor. Is the judgment of the trial court valid and proper? Reason. (5%)

Yes. The judgment of the trial court is valid. The accused did not ask for leave to file the demurrer to evidence. He is deemed to have waived his right to present evidence. (Sec. 23 of Rule 119; People v. Flores, 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278 SCRA 782 [1997]. However, the judgment is not proper or is erroneous because there was no showing from the proper office like the Firearms Explosive Unit of the Philippine National Police that the accused has a permit to own or possess the firearm, which is fatal to the conviction of the accused. (Mallari v. Court of Appeals &People,265 SCRA 456[1996]).

Gen Topic-Arrest; Warrantless Arrest; Preliminary Investigation

AX swindled RY in the amount of P10,000 sometime in mid-2003. On the strength of the sworn statement given by RY personally to SPO1 Juan Ramos sometime in mid-2004, and without securing a warrant, the police officer arrested AX. Forthwith the police officer filed with the City Prosecutor of Manila a complaint for estafa supported by RY”s sworn statement and other documentary evidence. After due inquest, the prosecutor filed the requisite information with the MM RTC. No preliminary investigation was conducted either before or after the filing of the information and the accused at no time asked for such an investigation. However, before arraignment, the accused moved to quash the information on the ground that the prosecutor suffered from a want of authority to file the information because of his failure to conduct a preliminary investigation before filing the information, as required by the Rules of Court. Is the warrantless arrest of AX valid? Is he entitled to a preliminary investigation before the filing of the information? Explain. (5%)

No. The warrantless arrest is not valid because the alleged offense has not just been committed. The crime was allegedly committed one year before the arrest. (Sec. 5 (b) of Rule 113).

Yes, he is entitled to a preliminary investigation because he was not lawfully arrested without a warrant (See Sec. 7 of Rule 112). He can move for a reinvestigation.

Actions; Commencement of an Action; Double Jeopardy (2004)

SPO1 CNC filed with the MTC in Quezon City (MeTC-QC) a sworn written statement duly subscribed by him, charging RGR (an actual resident of Cebu City) with the offense of slight physical injuries allegedly inflicted on SPS (an actual resident of Quezon City). The Judge of the branch to which the case was raffled thereupon issued an order declaring that the case shall be governed by the Rule on Summary Procedure in criminal cases. Soon thereafter, the Judge ordered the dismissal of the case for the reason that it was not commenced by information, as required by said Rule.

Sometime later, based on the same facts giving rise to the slight physical injuries case, the City Prosecutor filed with the same MeTC-QC an information for attempted homicide against the same RGR. In due time, before arraignment, RGR moved to quash the information on the ground of double jeopardy and after due hearing, the Judge granted his motion. Was the dismissal of the complaint for slight physical injuries proper? Was the grant of the motion to quash the attempted homicide information correct? Reason (5%)

Yes, the dismissal of the complaint for slight physical injuries is proper because in Metropolitan Manila and in chartered cities, the case has to be commenced only by information. (Sec. 11, Revised Rule on Summary Procedure).

No, the grant of the motion to quash the attempted homicide information on the ground of double jeopardy was not correct, because there was no valid prosecution for slight physical injuries.

Witness; Competency of the Witness vs. Credibility of the Witness (2004)

Distinguish Competency of the witness and credibility of the witness.

Competency of the witness refers to a witness who can perceive, and perceiving, can make known his perception to others (Sec. 20 of Rule 130), while credibility of the witness refers to a witness whose testimony is believable.

Gen Topic-Privilege Communication; Marital Privilege

XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual abuses under Rep. Act No. 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she had complained that XYZ’s hotel was being used as a center for sex tourism and child trafficking. The defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and marital privilege rule. It turned out that DEF, the minor daughter of ABC by her first husband who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year. May the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal case involving child prostitution? Reason. (5%)

Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case where it involves child prostitution of the wife’s daughter. It is not covered by the marital privilege rule. One exception thereof is where the crime is committed by one against the other or the latter’s direct descendants or ascendants. (Sec. 22, Rule 130). A crime by the husband against the daughter is a crime against the wife and directly attacks or vitally impairs the conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).

Hearsay Evidence vs. Opinion Evidence (2004)

Hearsay evidence and opinion evidence.

Hearsay evidence consists of testimony that is not based on personal knowledge of the person testifying, (see Sec. 36, Rule 130), while opinion evidence is expert evidence based on the personal knowledge skill, experience or training of the person testifying (Sec. 49, Id.) and evidence of an ordinary witness on limited matters (Sec. 50, Id.).

Gen Topic-Facts; Legislative Facts vs. Adjudicative Facts

Legislative facts and adjudicative facts.

Legislative facts refer to facts mentioned in a statute or in an explanatory note, while adjudicative facts are facts found in a court decision.

Burden of Proof vs. Burden of Evidence

Distinguish Burden of proof and burden of evidence.

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Sec. 1 of Rule 131), while burden of evidence is the duty of a party to go forward with the evidence to overthrow prima facie evidence established against him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]).

Gen Topic-Admissibility; Document; Not raised in the Pleading

In a complaint for a sum of money filed before the MM RTC, plaintiff did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. “A” in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500.000, the subject of the suit. Exh. “A” was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some two months before suit was begun. Without objection from defendant, the court admitted Exh. “A” in evidence. Was the court’s admission of Exh. “A” in evidence erroneous or not? Reason. (5%)

The court’s admission of Exh. “A” in evidence is not erroneous. It was admitted in evidence without objection on the part of the defendant. It should be treated as if it had been raised in the pleadings. The complaint may be amended to conform to the evidence, but if it is not so amended, it does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).

Admissibility

Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22, in the act of robbing a grocery in Ermita. As he handcuffed them he noted a pistol tucked in Max’s waist and a dagger hidden under Brix’s shirt, which he promptly confiscated. At the police investigation room, Max and Brix orally waived their right to counsel and to remain silent. Then under oath, they freely answered questions asked by the police desk officer. Thereafter they signed their sworn statements before the police captain, a lawyer. Max admitted his part in the robbery, his possession of a pistol and his ownership of the packet of shabu found in his pocket. Brix admitted his role in the robbery and his possession of a dagger. But they denied being NPA hit men. In due course, proper charges were filed by the City Prosecutor against both arrestees before the MM RTC. May the written statements signed and sworn to by Max and Brix be admitted by the trial court as evidence for the prosecution? Reason. (5%)

No. The sworn written statements of Max and Brix may not be admitted in evidence, because they were not assisted by counsel. Even if the police captain before whom they signed the statements was a lawyer, he was not functioning as a lawyer, nor can he be considered as an independent counsel. Waiver of the right to a lawyer must be done in writing and in the presence of independent counsel. (People v. Mahinay, 302 SCRA 455 11999]; People v. Espiritu, 302 SCRA 533 [1999]).

Prohibited Pleadings

Charged with the offense of slight physical injuries under an information duly filed with the MeTC in Manila which in the meantime had duly issued an order declaring that the case shall be governed by the Revised Rule on Summary Procedure, the accused filed with said court a motion to quash on the sole ground that the officer who filed the information had no authority to do so. The MeTC denied the motion on the ground that it is a prohibited motion under the said Rule. The accused thereupon filed with the RTC in Manila a petition for certiorari in sum assailing and seeking the nullification of the MeTC’s denial of his motion to quash. The RTC in due time issued an order denying due course to the certiorari petition on the ground that it is not allowed by the said Rule. The accused forthwith filed with said RTC a motion for reconsideration of its said order. The RTC in time denied said motion for reconsideration on the ground that the same is also a prohibited motion under the said Rule. Were the RTC’s orders denying due course to the petition as well as denying the motion for reconsideration correct? Reason. (5%)

The RTC’s orders denying due course to the petition for certiorari as well as denying the motion for reconsideration are both not correct. The petition for certiorari is a prohibited pleading under Section 19(g) of the Revised Rule on Summary Procedure and the motion for reconsideration, while it is not prohibited motion (Lucas v. Fabros, AM No. MTJ-99-1226, January 31, 2000, citing Joven v. Court of Appeals, 212 SCRA 700, 707-708 (1992), should be denied because the petition for certiorari is a prohibited pleading.

2006

Gen topic-Summons; Validity of Service; Effects

Tina Guerrero filed with filed the Regional Trial Court of Binan, Laguna, a complaint for sum of money amounting to P1 Million against Carlos Corro. The complaint alleges, among others, that Carlos borrowed from Tina the said amount as evidenced by a promissory note signed by Carlos and his wife, jointly and severally. Carlos was served with summons which was received by Linda, his secretary. However, Carlos failed to file an answer to the complaint within the 15-day reglementary period. Hence, Tina filed with the court a motion to declare Carlos in default and to allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under oath the genuineness and due execution of the promissory note and contending that he has fully paid his loan with interest at 12% per annum.

1. Was the summons validly served on Carlos? (2.5%)

ALTERNATIVE ANSWER:

The summons was not validly served on Carlos be-cause it was served on his secretary and the requirements for substituted service have not been followed, such as a showing that efforts have been exerted to serve the same on Carlos and such attempt has failed despite due diligence (Manotoc v. CA, G.R. No. 130974, August 16, 2006; AngPing v. CA, G.R. No. 126947, July 15, 1999).

ALTERNATIVE ANSWER:

Service of Summons on Carlos was validly served upon him if the Return will show that it was done through Substituted Service because the defendant can not be served personally within a reasonable time despite diligent efforts made to serve the summons personally. Linda, the secretary of defendant Carlos, must likewise be shown to be a competent person in charge of defendant’s office where summons was served (Sec. 7, Rule 14).

Gen topic-Special Civil Actions; Mandamus

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

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

Is a petition for mandamus an appropriate remedy to enforce contractual obligations? (5%)

No, the petition for mandamus is not an appropriate remedy because it is not available to enforce a contractual obligation. Mandamus is directed only to ministerial acts, directing or commanding a person to do a legal duty (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002; Sec. 3, Rule 65).

Gen topic-Provisional Remedies; TRO; Duration

What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court? (2%)

In cases of extreme urgency, when the applicant will suffer grave injustice and irreparable injury, the duration of a TRO issued ex parte by an Executive Judge of a Regional Trial Court is 72 hours (2nd par. of Sec. 5, Rule 58 1997 Rules of Civil Procedure). In the exercise of his regular functions over cases assigned to his sala, an Executive Judge may issue a TRO for a duration not exceeding a total of 20 days.

Gen Topic-Provisional Remedies; TRO; CA Justice Dept.

May a justice of a Division of the Court of Appeals issue a TRO? (2%)

Yes, a justice of a division of the Court of Appeals may issue a TRO, as authorized under Rule 58 and by Section 5, Rule IV of the IRCA which additionally requires that the action shall be submitted on the next working day to the absent members of the division for the ratification, modification or recall (Heirs of the late Justice Jose B.L. Reyes v. Court of Appeals, G.R. Nos. 135425-26, November 14, 2000).

Provisional Remedies; TRO vs. Status Quo Order (2006)

Differentiate a TRO from a status quo order. (2%)

A status quo order (SQO) is more in the nature of a cease and desist order, since it does not direct the doing or undoing of acts, as in the case of prohibitory or mandatory injunctive relief. A TRO is only good for 20 days if issued by the RTC; 60 days if issued by the CA; until further notice if issued by the SC. The SQO is without any prescriptive period and may be issued without a bond. A TRO dies a natural death after the allowable period; the SQO does not. A TRO is provisional. SQO lasts until revoked. A TRO is not extendible, but the SQO may be subject to agreement of the parties.

Provisional Remedies; TRO (2006)

Define a temporary restraining order (TRO). (2%)

A temporary restraining order is an order issued to restrain the opposite party and to maintain the status quo until a hearing for determining the propriety of granting a preliminary injunction (Sec. 4[c] and [d], Rule 58,1997 Rules of Civil Procedure).

Gen topic-Provisional Remedies; Injunctions; Requisites

What are the requisites for the issuance of

(a) a writ of preliminary injunction; and

(b) a final writ of injunction?

Requisites for the issuance of a:

a. Writ of Preliminary Injunction (Sec. 4, Rule 58 1997 Rules of Civil Procedure) are —

(1) A verified complaint showing;

(2) The existence of a right in esse;

(3) Violation or threat of violation of such right;

(4) Damages or injuries sustained or that will be sus-tained by reason of such violation;

(5) Notice to all parties of raffle and of hearing;

(6) Hearing on the application;

(7) Filing of an appropriate bond and service thereof.

b. While a final writ of injunction may be rendered by judgment after trial, showing applicant to be entitled to the writ (Sec. 9, Rule 58 1997 Rules of Civil Procedure).

Gen topic-Provisional Remedies; Injunctions; Issuance w/out Bond

May a Regional Trial Court issue injunction without bond? (2%)

Yes, if the injunction that is issued is a final injunction. Generally, however, preliminary injunction cannot issue without bond unless exempted by the trial court (Sec. 4[b] of Rule 58).

Gen Topic-Forum Shopping; Effects; Lack of Certification

Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific performance against Bernie. For lack of certification against forum shopping, the judge dismissed the complaint. Honey’s lawyer filed a motion for reconsideration, attaching thereto an amended complaint with the certification against forum shopping. If you were the judge, how will you resolve the motion? (5%)

If I were the judge, the motion should be denied after hearing because, as expressly provided in the Rules, failure to comply with the requirement of forum shopping is not curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the dismissal of the case, without prejudice, unless otherwise provided (Sec. 5, Rule 7, 1997 Rules of Civil Procedure). However, the trial court in the exercise of its sound discretion, may choose to be liberal and consider the amendment as substantial compliance (Great Southern Maritime Services Corp. v. Acuna, G.R. No. 140189, February 28,2005; Chan v. RTC of Zamboanga del Norte, G.R. No. 149253, April 15, 2004; Uy v. Land Bank, G.R. 136100, July 24, 2000).

Gen Topic-Forum Shopping; Definition

What is forum shopping? (2.5%)

Forum shopping is the act of a party which consists of filing multiple suits, simultaneously or successively, for the purpose of obtaining a favorable judgment (Leyson v. Office of the Ombudsman, G.R. No. 134990, April 27, 2000; Yulienco v. CA, G.R. No. 131692, June 10,1999; Chemphil Export & Import Corp. v. CA, G.R. Nos. 112438-39, December 12, 1995).

Note; The year 2006 asked a lot about the topic on Forum Shopping.f

Gen topic-Default; Remedies; Party Declared in Default

Jojie filed with the Regional Trial Court of Laguna a complaint for damages against Joe. During the pre-trial, Jojie (sic) and her (sic) counsel failed to appear despite notice to both of them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to present her evidence ex parte. Thereafter, the court rendered its Decision in favor of Jojie. Joe hired Jose as his counsel. What are the remedies available to him? Explain. (5%)

The remedies available to a party against whom a default decision is rendered are as follows:

1. BEFORE the judgment in default becomes final and executory:

Motion for Reconsideration under Rule 37;

Motion for New Trial under Rule 37; and

Appeal under Rule 41.

2. AFTER the judgment in default becomes final and executory:

Petition for Relief under Rule 38;

Annulment of Judgment under Rule 47; and

c. Certiorari under Rule 65. (See Talsan Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 126258, July 8, 1999)

Gen Topic Certiorari; Mode of Certiorari

Explain each mode of certiorari:

1. As a mode of appeal from the Regional Trial Court or the Court of Appeals to the Supreme Court. (2.5%)

Certiorari as a mode of appeal is governed by Rule 45 of the Rules of Court which allows appeal from judg-ment, final order of resolution of the Court of Appeals, Sandiganbayan, the RTC or other courts whenever authorized by law to the Supreme Court by verified petition for review raising only questions of law distinctly set forth.

2. As a special civil action from the Regional Trial Court or the Court of Appeals to the Supreme Court. (2.5%)

Certiorari as a Special Civil Action is governed by Rule 65 of the Rules of Court when an aggrieved party may file a verified petition against a decision, final order or resolution of a tribunal, body or board that has acted without or in excess of its jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

3. As a mode of review of the decisions of the National Labor Relations Commission and the Constitutional Commissions. (2.5%)

Certiorari as a mode of review of the decision of the NLRC is elevated to the Court of Appeals under Rule 65, as held in the case of St. Martin’s Funeral Home v. NLRC, G.R. No. 130866, September 16, 1998. Certiorari as a mode of review from the Commission on Audit (COA) and COMELEC is elevated to the Supreme Court within 30 days from notice of the judgment, decision or final order or resolution sought to be reviewed, as provided for under the Rule 64 of the 1997 Rules of Civil Procedure. In the case of the Civil Service Commission (CSC), review of its judgments is through petitions for review under Sec. 5 of Rule 43 of the 1997 Rules of Civil Procedure.

Gen topic-Actions; Real Actions & Personal Actions

What do you mean by

a) real actions; and

b) personal action? (2%)

a. REAL ACTIONS are actions affecting title to or possession of real property or an interest therein (Fortune Motors, Inc. v. CA, G. R. No. 76431, October 16, 1989; Rule 4, Sec. 1).

b. All other actions are PERSONAL ACTIONS (Rule 4, Section I) which include those arising from privity of contract.

Gen.Topic-Admissibility; Admission of Guilt; Requirements

What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence? (2.5%)

1 The admission must be voluntary.

2 The admission must be in writing.

3 The admission must be made with the assistance of competent, independent counsel.

4. The admission must be express (People v. Prinsipe, G.R. No. 135862, May 2, 2002).

5. In case the accused waives his rights to silence and to counsel, such waiver must be in writing, executed with the assistance of competent, independent counsel.

Probate of Will

Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City, of sound and disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum of P 300 Million. He bequeathed P 50 Million each to his 3 sons and P 150 Million to his wife. He devised a piece of land worth P100 Million to Susan, his favorite daughter-in-law. He named his best friend, Cancio Vidal, as executor of the will without bond. Is Cancio Vidal, after learning of Sergio’s death, obliged to file with the proper court a petition of probate of the latter’s last will and testament? (2%)

Cancio Vidal is obliged to file a petition for probate and for accepting or refusing the trust within the statutory period of 20 days under Sec. 3, Rule 75, Rules of Court.

Supposing the original copy of the last will and tes-tament was lost, can Cancio compel Susan to pro-duce a copy in her possession to be submitted to the probate court. (2%)

Yes, Cancio can compel Susan to produce the copy in her possession. A person having custody of the will is bound to deliver the same to the court of competent jurisdiction or to the executor, as provided in Sec. 2, Rule 75, Rules of Court.

Can the probate court appoint the widow as executor of the will? (2%)

Yes, the probate court can appoint the widow as executor of the will if the executor does not qualify, as when he is incompetent, refuses the trust, or fails to give bond (Sec. 6, Rule 78, Rules of Court).

Can the widow and her children settle extrajudicially among themselves the estate of the deceased? (2%)

No, the widow and her children cannot settle the es-tate extrajudicially because of the existence of the Will. No will shall pass either real or personal estate unless it is proved and allowed in the proper court (Sec. 1, Rule 75, Rules of Court).

Can the widow and her children initiate a separate petition for partition of the estate pending the probate of the last will and testament by the court? (2%)

No, the widow and her children cannot file a separate petition for partition pending the probate of the will. Partition is a mode of settlement of the estate (Sec. 1, Rule 75, Rules of Court).

IMMEDIATE VICINTIY: Probate of a will was asked the year before 2005 and 2002 and facts varied a little.

Gen. Topic-Congress; Law Expropriating Property

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

Yes, Congress may enact a law expropriating property provided that it is for public use and with just compensation. In this case, the construction of a park is for public use (See Sena v. Manila Railroad Co., G.R. No. 15915, September 7, 1921; Reyes v. NHA, GR No. 147511, March 24, 2003). The planned compensation, however, is not legally tenable as the determination of just compensation is a judicial function. No statute, decree or executive order can mandate that the determination of just compensation by the executive or legislative departments can prevail over the court’s findings (Export Processing Zone Authority v. Dulay, G.R. No. L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997 Rules of Civil Procedure). In addition, compensation must be paid in money (Esteban v. Onorio, A.M. No. 00-4-166-RTC, June 29, 2001).

Gen.Topic-Remedial Law; Concept

What is the concept of remedial law? (2%)

The concept of Remedial Law lies at the very core of procedural due process, which means a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, and contemplates an opportunity to be heard before judgment is rendered (Albert v. University Publishing, G.R. No. L-19118, January 30, 1965).

Remedial Law is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasion (Bustos v. Lucero, G.R. No. L-2068, October 20, 1948; First Lepanto Ceramics, Inc. v. CA, G.R. No. 110571, March 10, 1994).

Gen.Topic-Remedial Law vs. Substantive Law

Distinguish between substantive law and remedial law. (2%)

SUBSTANTIVE LAW is that part of the law which creates, defines and regulates rights concerning life, liberty, or property, or the powers of agencies or instrumentalities for the administration of public affairs. This is distinguished from REMEDIAL LAW which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v. Lucero, G.R. No. L-2068, October 20, 1948).

Gen Topic-Remedial Law in Phil. System of Gov’t

How are remedial laws implemented in our system of government? (2%)

Remedial laws are implemented in our system of government through the pillars of the judicial system, including the prosecutory service, our courts of justice and quasi judicial agencies.

Gen.Topic-Judgment vs. Opinion of the Court

What is the difference between a judgment and an opinion of the court? (2.5%)

The judgment or fallo is the final disposition of the Court which is reflected in the dispositive portion of the decision. A decision is directly prepared by a judge and signed by him, containing clearly and distinctly a statement of the facts proved and the law upon which the judgment is based (Etoya v. Abraham Singson, Adm. Matter No. RTJ-91-758, September 26, 1994).

An opinion of the court is the informal expression of the views of the court and cannot prevail against its final order. The opinion of the court is contained in the body of the decision that serves as a guide or enlightenment to determine the ratio decidendi of the decision. The opinion forms no part of the judgment even if combined in one instrument, but may be referred to for the purpose of construing the judgment (Contreras v. Felix, G.R. No. L-477, June 30, 1947).

Interlocutory Order

What is an interlocutory order? (2%)

An interlocutory order refers to an order issued between the commencement and the end of the suit which is not a final decision of the whole controversy and leaves something more to be done on its merits (Gallardo et al. v. People, G.R. No. 142030, April 21, 2005; Investments Inc. v. Court of Appeals, G.R. No. 60036, January 27, 1987 cited in Denso Phils, v. /AC, G.R. No. 75000, Feb. 27, 1987).

2007 – I – (Total 10%)

a.What are the rules on the recognition and enforcement of foreign judgments in our courts? (6%)

Section 48, Rule 39 of the Rules of Court on Effect Of Foreign Judgment Or Final Orders:

THE EFFECT OF FOREIGN JUDGMENTS Provided that the foreign tribunal had jurisdiction:

1. IN CASE OF JUDGMENT AGAINST A SPECIFIC THING, the judgment is CONCLUSIVE upon the TITLE TO THE THING; 2. IN CASE OF A JUDGMENT AGAINST A PERSON, the judgment is PRESUMPTIVE EVIDENCE of a right as between the parties and their successors-in-interest by a subsequent title.

In both instances, the judgment may be repelled by evidence of want of jurisdiction, notice, collusion, fraud or mistake.

As to the specific topic on Divorce or Law relating to family rights in the case of Corpuz vs. Tirol Sto. Tomas (G.R. No. 186571, August 11, 2010), the Supreme Court clarified that “[t]he starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws…. As a rule, ‘no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country.’ This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s applicable national law to show the effect of the judgment on the alien himself or herself. The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree as an integral aspect of his claim or defense.”

b. Can a foreign arbitral award be enforced in the Philippines under those rules? Explain briefly. (2%)

In the case of Corpuz vs. Tirol Sto. Tomas (G.R. No. 186571, August 11, 2010), the Supreme Court clarified that “[t]he starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws…. As a rule, ‘no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country.’ This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s applicable national law to show the effect of the judgment on the alien himself or herself. The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree as an integral aspect of his claim or defense.”

c. How about a global injunction issued by a foreign court to prevent dissipation of funds against a defendant therein who has assets in the Philippines? Explain briefly. (2%)

We must find in favor of defendant because notice was inadequate. Property could have been taken using Quasi in Rem jurisdiction, but only if properly attached prior to judgment.

No state can exercise direct jurisdiction and authority over persons or property outside of its territory, if person is found within state, state has exclusive jurisdiction over that party, unless defendant consented to be sued.

– II – (Total 10%)

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

a. The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose (3%)

True. Dead Man’s Statute or Srvivorship Rue states as the general rule that parties oraassignors of parties to a case or persons in whose behalf a case is prosecuted

b. A defendant wh

“Dead Man’s Statute” or “Survivorship Rule” • General rule: Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor/administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim/demand against the estate of such deceased person or against party [Rule 130, Sec. 23] • • He may likewise testify where the estate had filed a counterclaim against him or where the estate crossexamined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA] • Purpose: To guard against the temptation to give false testimonyn the part of the surviving party and to put the parties to the suit upon terms of equality in regard to opportunity to produce evidence. [Bautista]

Who has been declared in default can avail of a petition for relief from the judgment subsequently rendered in the case. (3%)

True. Petition for Relief from Judgments, Orders or Other Proceedings under Rule 38 states as grounds for filing the same Fraud, Accident, Mistake or Excusable Negligence (FAME) and its nature as an action is that when a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court, through FAME a party litigant may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside. (Section 1 of Rule 38, Rules of Court).

Under the rules, petitions for relief from a judgment, final order or other proceeding rendered or taken should be filed in and resolved by the court in the same case from which the petition arose. Thus, petition for relief from a judgment, final order or proceeding involved in a case tried by an MTC shall be filed in and decided by the MTC in the same case, or in the RTC if the case was decided by it. (Redeña vs. CA).

c. A motion is pleading. (2%)

False. Under Rule 15 section 1 of the Rules of Court, viz.,

RULE 15

MOTIONS

SECTION 1. Motion defined.-A motion is an application for relief other than by a pleading.

False. While a Motion to Dismiss can sometimes be used prior to an answer, it technically does not enlarge the time in which to answer a suit, it nevertheless extends the deadline to answer.

d. A counterclaim is pleading. (2%)

True. According to the Rules of Court, viz.,

RULE 6

KINDS OF PLEADINGS

SECTION 1. Pleadings defined.-Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

SEC. 2. Pleadings allowed.-The claims of a party are asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint, or complaint-in-intervention.

Being included in the enumeration, a counterclaim is indeed a pleading.

– III – (Total 10%)

1. What is the hearsay rule? (5%)

Under the above rule, any evidence — whether oral or documentary — is hearsay if its probative value is not based on the personal knowledge of the witness, but on that of some other person who is not on the witness stand. Hence, information that is relayed to the former by the latter before it reaches the court is considered hearsay.

2. In relation to the hearsay rule, what do the following rules of evidence have in common? (5%)

1. The rule on statements that are part of the res gestae;

A Res Gestae statement was admissible against the accused as an exception to the hearsay rule under Section 42, Rule 130 of the Rules of Court, which provides:

Section 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

The term res gestae refers to “those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act.” In a general way, res gestae includes the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and which are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The rule on res gestae encompasses the exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.

The test of admissibility of evidence as a part of the res gestae is whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded a part of the principal fact or event itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony.

2. The rule on dying declarations;

What is hearsay

Under the Rules on Evidence, a witness can only testify as to facts that he personally knows based on his own observation. Hence, hearsay is not allowed.

“5. TESTIMONIAL KNOWLEDGE

Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. (30a)” (Rule 130)

What exactly is hearsay? Note that the rule does not define what it is but only what it is not: facts not perceived by the witness himself. Thus, rumours are a no-no. The rule is based on concerns about the trustworthiness and reliability of hearsay evidence, since this is not given under oath and not subject to cross-examination where opposing counsel can test a witness. This is because in a hearsay situation there are actually two witnesses – one who is testifying in court and one other person, whose utterances are the subject of the testimony.(Herrera, Remedial Law, Vol. V (1999), pp. 565-567)

Dying declarations as exception to hearsay rule

However, there are exceptions to the hearsay rule such as the dying declaration.

“6. EXCEPTIONS TO THE HEARSAY RULE

Sec. 37. Dying declaration. — The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. ”

Even the Supreme Court has referred to this exception as the “most mystical in its theory.” It further stated that “a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation. xxx [T]he declarant’s death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. xxx [The] declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.” PEOPLE vs. CERILLA [G.R. No. 177147. November 28, 2007.]

3. The rule on admissions against interest.

An admission is any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him.[38]Admission against interest is governed by Section 26 of Rule 130 of the Rules of Court, which provides:

Sec. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.

To be admissible, an admission must (a) involve matters of fact, and not of law; (b) be categorical and definite; (c) be knowingly and voluntarily made; and (d) be adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible.

– IV – (10%)

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

Articles 49 and 50 of the Family Code provides that the issue on the custody of the spouse’s common children is deemed pleaded in the declaration of nullity case (ERIC JONATHAN YU vs. CAROLINE T. YU).

– V – (Total 10%)

a. Distinguish the effects of the filling of a demurrer to the evidence in a criminal case and its filing in a civil case. (5%)

Procedure in filing a demurrer to evidence

Please take note that the defense lawyer must ask the express leave (permission) of the court before filing a “Demurrer to Evidence”. The procedure is:

After the prosecution has formally rested its case, the defense lawyer, in open court, requests the express permission of the judge to file a demurrer. Once the judge gives such permission, the defense lawyer will within the period time approved by the judge file the demurrer. Copy of the demurrer must be furnished to the prosecution (the fiscal and/or the private prosecutor) which may submit its comments or opposition to the demurrer.

Or, the defense lawyer can submit to the court a “Motion to file demurrer to evidence with express leave of court”. Attached to such motion is the demurrer to evidence.

What happens if f the demurrer to evidence is denied?

If the judge denies the demurrer, then the trial continues and the defense must present its evidence.

What happens if the demurer to evidence is granted? What is “double jeopardy”?

If the judge grants the demurrer, then the case is dismissed (in other words, the accused is declared not guilty). No motion for reconsideration or appeal to a higher court is allowed since this would violate the Constitutional prohibition against “double jeopardy”. This term simply means that an accused who has been tried and found not guilty of a crime by a court of competent jurisdiction cannot be held for trial again for the same offense. (You might recall the 1999 movie starring Ashley Judd and Tommy Lee Jones about a woman accused of murdering her husband; the movie revolved around the issue of double jeopardy.)

In Civil cases there is no such double jeopardy, as a matter of fact if indispensable parties are not included, the proceedings do not attain finality as to these unimpleaded indispensable parties.

b. What is reverse trial and when may it be resorted to? Explain briefly. (5%)

This refers to the Power of the Court on Appeal, that upon appeal from a judgment of the Regional Trial Court, the Court of Appeals may reverse, affirmed modify the judgment and increase or reduce penalty imposed by the trial court, remand the case for new trial or retrial, or dismiss the case

– VI – (Total 10%)

a. On his way home, a member of the Caloocan City police force witnesses a bus robbery in Pasay City and effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where his station is? Explain briefly. (5%)

No. These documents were signed by the accused during custodial investigation without the assistance of counsel. He was not informed of his constitutional right to silence and obviously under threats of violence and intimidation upon his person. He might have been informed of his right to counsel but not that he may be provided with one if he cannot afford the services of counsel. More than that, if it can be assumed that he waived said right, the waiver was not in writing and not in the presence of counsel. In any event, written instruments like signed booking sheet reports are declarations against interest and tacit admissions of the crime charged.These documentary evidence is in the same category as extra-judicial confessions outlawed by the Constitution (People v. Turla, G.R. No. 70270, November 11, 1988).

b. In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police required to return the firearm? Explain briefly. (5%)

No. In stop and frisk situations, this is based on the conduct of the person who acts suspiciously and when searched such search would yield unlawful items in connection with an offense such as an unlicensed firearm and prohibited drugs.

– VII – (Total 10%)

a. B files a petition for cancellation of the birth certificate of her daughter R on the ground of falsified material entries there in made by B’s husband as the informant. The RTC sets the case for hearing and directs the publications of the order once a week for three consecutive weeks in a newspaper of general circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing. The RTC granted the petition. R filed a petition for annulment of judgment before the Court of Appeals, saying that she was not notified of the petition and hence, the decision was issued in violation of due process. B opposed saying that the publication of the court order was sufficient compliance with due process. Rule. (5%)

The RTC was wrong in granting the petition for cancellation of the birth certificate of R. The birth certificate of a person cannot be cancelled. Only the entries therein can be cancelled or corrected.

Moreover, R should have been made a party to the proceeding because what is involved is her birth certificate. The publication of the court order will not suffice. Section 3, Rule 108 of the Rules of Court provides that when cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Lastly, since changes sought in the petition are substantial, the proceedings should have been adversarial.

b. G files a complaint for recovery of possession and damage against F. in the course of the trial, G marked his evidence but his counsel failed to file a formal offer of evidence. F then presented in evidence tax declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F’s evidence. Was the court correct? Explain briefly. (5%)

The court was correct. G, being the plaintiff, has the burden of proof. He was not able to overcome the burden because of his failure to formally offer his evidence. Evidence not formally offered cannot be considered by the court.

– VIII – (Total 10%)

a. X files an unlawful detainer case against Y before the appropriate Metropolitan Trial Court. In his answer, Y avers as a special and affirmative defense that he is a tenant of X’s deceased father in whose name the property remains registered. What should the court do? Explain briefly. (5%)

Answer:

The court should issue an order for preliminary conference within thirty (30) days after the answer is filed as provided under the revised rule on summary procedure.

b. The heirs of H agree among themselves that they will honor the division of H’s estate as indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%)

The heirs of H cannot execute an extrajudicial settlement agreement among themselves without filing a petition for probate of the H’s will. The law is explicit: No will shall pass real or personal property unless it is proved and allowed in accordance with the Rules of Court. If a deceased left a will, its probate is mandatory; otherwise, the right to make a will would be rendered nugatory.

– IX – (10%)

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

L cannot file a petition for mandamus. The court’s denial of the motion to dismiss filed by L may be wrong. Mandamus, however, is not the remedy to correct it because to grant a motion or not involves the exercise of discretion and not merely a ministerial function. Mandamus is not available to control discretion.

– X – (Total 10%)

a. RC filed a complaint for annulment of the foreclosure sale against Bank V. in its answer, Bank V set up a counter claim for actual damages and litigation expenses. RC filed a motion to dismiss the counterclaim on the ground the Bank V’s Answer with Counterclaim was not accompanied by a certification against forum shopping. Rule. (5%)

Answer:

The motion to dismiss should be granted. The counterclaim for actual damages is a permissive counterclaim. A permissive counterclaim, being considered as initiatory pleading, requires a certification against forum shopping.

The motion to dismiss the counterclaim should be denied. A certification against forum shopping should not be required in a compulsory counterclaim because it is not an initiatory pleading. (Sec 5, Rule 7 Rules of Civil Procedure; Cariop vs Rural Bank of Sto Tomas G.R. No. 153171, May 4, 2006).

b. A files a case against B. While awaiting decision on the case, A goes to the United States to work. Upon her return to the Philippines, seven years later, A discovers that a decision was rendered by the court in her favor a few months after she had left. Can a file a motion for execution of the judgment? Explain briefly. (5%)

Answer:

No. A cannot file a motion for execution of the judgment seven years after the entry of the judgment. She can only do that within five years fro mentry of judgment. However, she can file a case for revival of the judgment which can be done before it is barred by the statute of limitations (sec 6 rule 39 1997 Rules of Civil Procedure) which is within ten years form the date of finality of the judgment Macias vs Lim).

2008 Bar Examination Committee

I

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

Did the court acquire jurisdiction over Mary Rose? (4%)

II

Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside from alleging payment as a defense, Ramon in his answer set up counterclaims for P100,000 as damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as well as for P250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to Fe.

Does the RTC have jurisdiction over Ramon’s counterclaims, and if so, does he have to pay docket fees therefor? (3%)

ANSWER: The court acquires jurisdiction over the Counterclaim of Ramon, it arising out of the same transaction out of which the main action arose out of and Ramon’s counterclaim involves the same parties, subject matter and issues.

According to PROFESSOR RENE CALLANTA’S notebank (collected by his students) the following is a summation of the rules on whether or not a counterclaim is subject to docket fees.

Viz,

Rule 14
Filing fees:
Rule #1: payment of filing fees is jurisdictional in civil cases
Rule #2: how does the court determine filing fees?
You include interest, damages, attorney’s fees etc. – pay everything that you allege for court fees
But for jurisdictional purposes, just the principal claim
Rule #3:
Sun Insurance
Filing fees must be paid within prescriptive period or reglementary period (for appeals or compulsory counterclaims), or else it is deemed prescribed
Rule #4:
Alday v. FGU Insurance
Permissive counterclaims require docket fees
The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately.
Compulsory counterclaims do not require docket fees
BUT read Korean Technologies case of 2009 – this is how you answer the question whether compulsory counterclaims require filing fees
From nowhere, this case required that even compulsory counterclaims have docket fees paid. Korean Technologies cited Rule 141.
But in practice, based on an SC Resolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet.
Alday: Payment of filing fees for compulsory counterclaims is not required. But you have to take note of Korean Technologies now

To sum it up, the counterclaim of Ramon is subject to payment of filing fees by virtue of Rule 141 (law), Korean Technologies (case law) and an SC Resolution (administrative issuances).

Suppose Ramon’s counterclaim for the unpaid balance is P310,000, what will happen to his counterclaims if the court dismisses the complaint after holding a preliminary hearing on Ramon’s affirmative defenses? (3%)

Answer:

According to the Rules of Court, within the time provided for in the rules, you must signify to the court either

1. You choose to pursue in a separate case the filing of your counterclaim, or
2. You wish to resolve your counterclaim in the same case as the main complaint.
(Law)

SEC. 6. Counterclaim.—A counterclaim is any claim which a defending party may have against an opposing party. (6a)

SEC. 7. Compulsory counterclaim.—A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount.

Under the same premise as paragraph (b) above, suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims? (3%)

Answer:

Again for variety, I cite Prof Callanta’s notebank that states that a counterclaim which in practice is not executed in a separate pleading1, this counterclaim must be answered within ten (10) days from receipt by the plaintiff (or adverse party). According to Sir Callanta, in practice a litigant only answers a permissive counterclaim and compulsory counterclaims are rarely answered. A counterclaim is not an answer, nor is it part of the answer. It is a distinct cause of action which must be answered by the adverse party within 10 days from service.

The motion is not an implied admission of the allegations of the complaint but interposes the affirmative defense of payment. Under section 3 Rule 11 the plaintiff shall answer the same within fifteen (15) days after being served with a copy thereof.

(Law)

SEC. 3. Answer to amended complaint.-Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) days after being served with a copy thereof.

Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten (10) days from notice of the Order admitting the same. An answer earlier filed may serve as the answer to the amended complaint, if no new answer is filed.

This Rule shall apply to the answer to an amended counterclaim amended cross-claim, amended third (fourth, etc.)- party complaint, and amended complaint-in-intervention.

1.Tan vs Kaakbay-No need for CFNS in CC 1

III

Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and Nueva Ecija, respectively. May her action prosper? (3%)

The SC in Munoz vs Go Chan, a 2011 case declared that an action for declaration of nullity of title and recovery of ownership of real property, or re-conveyance, is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing. Any judgment therein is binding only upon the parties properly impleaded.

Since they were not impleaded as parties and given the opportunity to participate in Civil Case No. Q-28580, the final judgment in said case cannot bind BPI Family and the spouses Chan. The effect of the said judgment cannot be extended to BPI Family and the spouses Chan by simply issuing an alias writ of execution against them. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution issued pursuant thereto.

Therefore determination of venue follows the general rule that it follows the residence of either the plaintiff or the defendant, at the option of the plaintiff, actions for reconveyance of land being by its very nature only an ordinary civil action.

Assuming that the action was for foreclosure on the mortgage of the same parcels of land, what is the proper venue for the action? (3%)

Answer:

There are two views as to determination of jurisdiction and venue of foreclosures on mortgage of real property. One view states that jurisdiction always lie with the RTC becaue it only covers the security of the property. The original action is always for recovery of money.

The other view is that jurisdiction determination must be governed by the value of the security.

As to venue, it lies with the location of the property foreclosed.

IV

Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino pleading two causes of action. The first was a demand for the recovery of physical possession of a parcel of land situated in Pasay City with an assessed value of P40,000; the second was a claim for damages of P500,000 for Marcelino’s unlawful retention of the property. Marcelino filed a motion to dismiss on the ground that the total amount involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino correct? (4%)

ANSWER:

Under the law when the action refers to rights, title or interest over real property where the value is 20,000 for locations outside Metro Manila and 50,000.00 within Metro Manila area, more particularly in cases of Recovery of possession of real property, the assessed value is the basis for determining the value of the real property subject of the dispute.

In the Ouano case, there was a discussion as to which of Fair Market Value or Assessed value should be used as basis for determining jurisdiction for Actions for Recovery of possession of real property. Assessed value won.

Ouano vs. PGTT International Investment Corporation

FACTS:

PGTT filed a complaint agaisnt Ouano for Recovery of Ownership and Possession of Property and Damages against Jovenal Ouano. As owner, it alleged that it was deprived of its use when Ouano uprooted the concrete monuments of the lot and planted corn therein. It also claimed to suffer damages amounting to P100,000 when Ouano refused to vacate despite their demand. Ouano filed a motion to dismiss on the ground that it is the MTC that has jurisdiction as the assessed value of the lot is only P2,910. PGTT opposed and said that jurisdictiction is determined by the market value instead and that the RTC has jurisdiction since the market value of the lot is P49, 760 and the damages claimed amounted to P100,000. RTC ruled in favor of PGTT.

ISSUE: Whether the RTC has jurisdiction over this case?

HELD:

The jurisdiction over the subject mater of the claim is determined by the assessed value and not the market value since the action involves ownership and possession of real property. BP # 129 provides that MTC has jurisdiction over cases on real property where the assessed value of the property or interest therein exclusive of damages does not exceed P20,000 or P50,000 in civil actions in Metro Manila. the RTC on the other hand has jurisdiction if the assessed value exceeds P20,000 or P50,000 in civil actions in Metro Manila. Thus, the amount of damages claimed should not be added in the computation as the law explicitly excludes from the determination of jurisdictional amount the demand for ” interest, damages of whatever kind, atorney’s fees, litigation expenses, and cost. The said damages are merely incidental to, or a consequence of, the real property. However, Administrative Circular No. 09-94 provides that in cases where the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court.

V

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

Did the judge gravely abuse his discretion in acting on the motion without waiting for the hearing set for the motion? (3%)

Answer:

When a party litigant files a Motion for a Bill of Particulars, that party aims to secure a more definite statement of facts that appear in the complaint that are not averred with sufficient particularity. As party litigant the Motion must identify the defects in the Complaint and details desired.

The judge gravely abused his discretion without waiting for the date set for the hearing of the motion because how can he make a hasty determination as to the sufficiency of the evidence for the plaintiff when the issues have not as yet been joined, the defendant was not yet at this stage able to submit his responsive pleading.

The filing of a motion for Bill of Particulars interrupts the period to file an answer and in no case shall the party litigant have less than five days to file the answer after his motion for Bill of Particulars have been denied.

If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can the trial judge dismiss the case if the plaintiff does not comply with the order? (3%)

Answer:

Yes. The court can dismiss the case according to the case of Virata vs Sandiganbayan that cites Rule 17, section 3 on non-compliance of a court order by a party.

VI

After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted attachment. In the end, the trial court rendered a judgment in Porfirio’s favor by ordering the plaintiff to pay damages because the plaintiff was not entitled to the attachment. Porfirio moved to charge the plaintiff’s attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the counterbond had relieved the plaintiff’s attachment bond from all liability for the damages. Rule on Porfirio’s motion. (4%)

Answer:

At the outset the purpose of filing a counterbond is to indemnify the officer of the court charged with releasing property previously attached by a party litigant through the writ of attachment. It is by these merits of a counterbond that the Supreme Court elucidated in the case of Magaling vs Ong that the mere filing of a counterbond does not automatically discharge the attachment. There must be a specific resolution for the discharge.

VII

The writ of execution was returned unsatisfied. The judgment obligee subsequently received information that a bank holds a substantial deposit belonging to the judgment obligor. If you are the counsel of the judgment obligee, what steps would you take to reach the deposit to satisfy the judgment? (3%)

According to Section 9 of the Rules of Court on Execution of judgments for money, If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and the court officer shall first levy on the personal properties. Debts and Credits may also be garnished and the court officer may levy on debts due the judgment obligor and other credits, including bank deposits not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person having in his possession or control such credits to which the judgment obligor is entitled.

The garnishee shall make a written report to the court within five days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10 working days from service of notice on said garnishee requiring such delivery.

Based on the foregoing, the sheriff is required to first make a demand of the obligor the immediate payment of the full amount stated in the writ of execution before a levy can be made. In a case, respondent had shown that he caused the service of the writ of execution pending appeal upon PAL thru its legal department on December 11, 2002 at 3:25 p.m. Records will show that while PAL received the copy of the writ on December 11, 2002, its depository banks received copies of the writ as well as notices of garnishment on the same day at an earlier time than PAL received the writ of execution as shown by the stamped receipt thereon, thus, China Bank at 2:32 p.m., JPMorgan Chase Bank at 2:48 p.m., Hongkong and Shanghai Bank at 2:54 p.m., and Allied Banking Corporation at 3:20 p.m. Notably, respondent did not observe the procedure mandated under the Rules of Court that he should first make a demand of the obligor the immediate payment of the full amount stated in the writ of execution.

An expeditious execution of the writ should not be done at the expense of depriving the obligor the chance to pay the judgment debt.

If the bank denies holding the deposit in the name of the judgment obligor but your client’s informant is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy to reach the deposit? (3%)

As counsel I will cause the service of copies of the writ as well as the notice for garnishment on the bank that my client’s informant will point out as possible depositaries of funds belonging to the judgment obligor and funds held in accounts bearing possible assumed names or identities of the judgment obligor. This is legal because we are not exactly requiring the bank to divulge the amounts held but only the information as to whether or not funds exist in their institution that belongs to the judgment obligor.

VIII. Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father, during the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

During trial, the prosecution presented Artemon to testify on Ramil’s offer and thereby establish an implied admission of guilt. Is Ramil’s offer to settle admissible in evidence? (3%)

During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor, who immediately put the offer on record in the presence of the trial judge. Is Bembol’s offer a judicial admission of his guilt? (3%)

No. An offer to compromise does not, as a general rule, amount to an admission of liability

It is an implied admission of guilt.

However prosecution must prove by preponderance of evidence that there is an admission of liability th reason being that there is no presumption and due to the fact that the proof will only result in a judgment of pecuniary damages or establish civil right. Guilt beyond reasonable doubt is still required to convict Bembol.

Moreover during pre-trial proceedings, it is mandatory for parties to thresh out preliminary issues, define terms, explore the possibility of a compromise so as to aid the courts in unclogging its dockets by mapping out undefined territories before both parties could go to trial.

IX

The search warrant authorized the seizure of “undetermined quantity of shabu.” During the service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as evidence for the violation of Section 11 of the Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State justified the seizure of the marijuana leaves under the “plain view” doctrine. There was no indication of whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you are the judge, how would you rule on the motion to suppress? (4%

Answer:

Motion to quash a search warrant or to suppress evidence (Section 14 of Rule 126)

– A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

In a case,Atty. Oliver Lozano defended an alleged drug lord by filing a motion to suppress the State’s evidence, a shipload of drugs. Atty. Lozano argued that there was no evidence linking the boatload of drugs to the accused, that the ship was registered in another person’s name, etc. The judge agreed with this contention and dismissed the complaint without a full-blown trial.

As for Motions for judicial determination of probable cause, the case of “People of the Philippines vs. Castillo et al”, G.R. No.1188, June 19, 2009 gives an instruction on this point.

There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.

Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so, the judge in turn should not override the public prosecutor’s determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient. It must be stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of discretion in determining whether a criminal case should be filed in court, and that courts must respect the exercise of such discretion when the information filed against the person charged is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor.

Summing up, a judicial determination of probable cause is concerned with the matter of whether the judge should issue a warrant of arrest against the accused or not. As to whether there is probable cause for the filing of the case in court, that is the responsibility, not of the judge, but of the prosecutor’s office. Defense lawyers should now refrain from filing a “motion for judicial determination of probable cause” for three reasons:

(1

The judge is already duty-bound to determine whether there is probable cause for the issuance of a warrant of arrest. He studies the records of the preliminary investigation (complaint, counter-affidavit, affidavit of witnesses, documentary evidences, etc

. He then decides whether to issue a warrant of arrest or not. There is therefore no need for a defense lawyer to file a “motion for judicial determination of probable cause”. By filing such a motion, the defense lawyer disrespects or even insults the judge.

(2

As discussed above, the defense lawyer’s intention for filing this motion is actually to shortcut the proceedings by asking the judge to rule whether the accused should be held for trial or not, even without a full-blown trial. As the Supreme Court ruled in this case, “whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon”.

(In one controversial case extensively covered by the media, the judge has already issued a warrant of arrest and the accused has posted bail. But the judge re-set the arraignment because the defense lawyer has filed a “motion for judicial determination of probable cause”. I wonder if the defense lawyer and the judge are aware of the Supreme Court ruling in the “People of the Philippines vs. Castillo et al” case.

(3

If the defense lawyer thinks that the information filed against the accused is not valid on its face and that there was manifst error or grave abuse of discretion on the part of the public prosecutor, the proper remedy is to file a motion for re-investigation, not a “motion for judicial determination of probable cause”.

X

Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued the warrants for their arrest. Learning of the issuance of the warrants, the three accused jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their motion, none of the accused showed up in court for fear of being arrested. The RTC judge denied their motion because the RTC did not acquire jurisdiction over the persons of the movants. Did the RTC rule correctly? (4%)

No. The RTC erred in denying the motion. Under the law, voluntary appearance is one of the modes of acquiring jurisdiction over the … reinvestigation and for the recall of the warrants of arrest is equivalent to voluntary appearance. Hence, when the accused filed their motion, the court acquired jurisdiction over their person.

NOTA BENE: Please take note of the ff case digest:

QUESTION NO. XI

ANSER:

MIRANDA VS. TULIAO486 SCRA 377 (2006)

(I am allowing you to hate me for this digest. Sobrang gulong-

gulo ako. I’ll just attach the original. The issue raised by the

petitioners kasi is not about bail, but the court discussed it in such a way that bail got included. They contrasted. Basically,it just says the court acquires jurisdiction over the person of

the accused when he/she submits motions, etc even if he’s not

detained. But the exception is the petition for admission to bail

–

the accused has to be held in detention in such case. Since

we’re in a hurry, I think that’s the only thing we need, or so I

make myself believe.)

Facts:two burnt cadavers were discovered in Purok Nibulan, Ramon,Isabela, which were later identified as the dead bodies of VicenteBauzon and Elizer Tuliao, son of private respondent VirgilioTuliao who is now under the witness protection program.Two informations for murder were filed against SPO1 WilfredoLeaño, SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirezin the Regional Trial Court (RTC) of Santiago City, but the venuewas later transferred to the RTC of Manila which convicted all of the accused and sentenced them to two counts of reclusionperpetua except SPO2 Maderal who was yet to be arraigned at that time, being at large. The case was appealed to the SupremeCourt on automatic review where we accused therein wasacquitted on the ground of reasonable doubt.Sometime in September 1999, SPO2 Maderal was arrested. On 27April 2001, he executed a sworn confession and identifiedpetitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, asthe persons responsible for the deaths of Vicente Bauzon andElizer Tuliao.Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and Amado Doe, and submitted thesworn confession of SPO2 Maderal. Acting Presiding JudgeWilfredo Tumaliuan issued warrants of arrest against petitionersand SPO2 Maderal.Petitioners filed an urgent motion to complete preliminaryinvestigation, to reinvestigate, and to recall and/or quash thewarrants of arrest.Judge Tumaliuan noted the absence of petitioners and issued aJoint Order denying said urgent motion on the ground that, sincethe court did not acquire jurisdiction over their persons, themotion cannot be properly heard by the court. In the meantime,petitioners appealed the resolution of State Prosecutor Leo T.Reyes to the Department of Justice.the new Presiding Judge Anastacio D. Anghad took over the caseand issued a Joint Order reversing the Joint Order of JudgeTumaliuan. Consequently, he ordered the cancellation of thewarrant of arrest issued against petitioner Miranda. He likewiseapplied this Order to petitioners Ocon and Dalmacio.On 12 November 2001, this Court issued a Resolution resolvingto grant the prayer for a temporary restraining order against Judge Anghad from further proceeding with the criminal cases.Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14 November 2001 dismissing the two Informationsfor murder against petitioners. On 19 November 2001, this Court took note of

respondent’s cash bond

evidenced by O.R. No.15924532 dated 15 November 2001, and issued the temporaryrestraining order while referring the petition to the Court of Appeals for adjudication on the merits.FIRST ASSIGNMENT OF ERRORWith all due respect, the Honorable Court of Appeals gravelyerred in reversing and setting aside the Joint Order of JudgeAnastacio D. Anghad dated August 17, 2001, September 21, 2001,October 16, 2001 and November 14, 2001 issued in criminalcases numbered 36-3523 and 36-3524; and, erred in upholding,affirming and reinstating the Order dated July 6, 2001 issued bythen Acting Presiding Judge Wilfredo Tumaliuan, on the allegedrule that an accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court.Court: A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. Jurisdictionover the person of the accused may be acquired either throughcompulsory process, such as warrant of arrest, or through hisvoluntary appearance, such as when he surrenders to the policeor to the court. It is only when the court has already acquiredjurisdiction over his person that an accused may invoke theprocesses of the court (Pete M. Pico vs. Alfonso V. Combing, Jr.,A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in the custody of the law before the court mayvalidly act on his petition for judicial reliefs.

3 Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and Dalmacio cannot seek any judicialrelief since they were not yet arrested or otherwise deprived of their liberty at the time they filed their “Urgent Motion tocomplete preliminary investigation; to reinvestigate; to recalland/or quash warrants of arrest.”

4 Petitioners counter the finding of the Court of Appeals byarguing that jurisdiction over the person of the accused isrequired only in applications for bail.

Furthermore,petitioners argue, assuming that such jurisdiction over theirperson is required before the court can act on their motion toquash the warrant for their arrest, such jurisdiction over theirperson was already acquired by the court by their filing of theabove Urgent Motion.

3 CrimPro (Bail, Motion to Quash)

The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either byhis pleading to the merits (such as by filing a motion to quash or

other pleadings requiring the exercise of the court’s jurisdiction

thereover, appearing for arraignment, entering trial) or by filingbail.

XI

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

Rule

On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an amended complaint alleging that Robert’s debt had in the meantime become due but that Robert still refused to pay. Should the amended complaint be allowed considering that no answer has been filed? (3%)

No. In the instant case, the original complaint was for the FORECLOSURE of the real estate mortgage executed in favor of ARTURO. Arturo prayed for the foreclosure on the mortage constituted by Roberto as security for the payment of his loan to Arturo which matures on September 2007, months before the Foreclosure action was instituted by Arturo. Realizing his mistake now Arturo amends his comlaint and runs after the mortgaged properties under the theory of matured loans only now becoming due and demanda

Parenthetically, the amendments sought altered the cause of action of the original complaint. This cannot be done.

Robert’s contentions are anchored on the following:

I

Section 2, Rule 1 0 of the Rules of Court gives a party a right to amend his pleading once as a matter of right.

II

The mere filing of a motion to dismiss does not deprive plaintiffs of their right to amend as a matter of course.

Sections 1 and 2, Rule 10 of the Revised Rules of Court provide:

Section 1. Amendments in general. — Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. ‘

Section 2. When amendments allowed as a matter of right —A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within ten (10) days after it is served.

Taking into consideration these two provisions, we have ruled that amendments of pleadings may be resorted to subject to the condition that the amendments sought do not alter the cause of action of the original complaint (Alger Electric v. Court of Appeals, 135 SCRA 37) or are not inconsistent with the allegations in the original complaint, but are obviously intended to clarify the intrinsic ambiguity in them with respect to the time of the accrual of the movant’s cause of action Guino v. Ver, 16 SCRA 638).

Would your answer be different had Arturo filed instead a supplemental complaint stating that the debt became due after the filing of the original complaint? (2%)

Yes. The supplemental complaint alleged petitioner’s subsequent acts in asserting its rights as such purported obligee and mortgagor. Thus, the acts complained of under the supplemental complaint, namely: that ARTURO makes a second demand on the amounts owing and due from Roberto are acts calculated to exercise Arturo’s rights, validly or invalidly.

The cause of action raised in the supplemental complaint did not substantially change the case theory or that the theory of the case altered the causes of action contained in the original complaint. If at all, the new allegations in the supplemental complaint sought remedies only for subsequent acts perpetrated by Roberto, his not filing of an answer to the original complaint, to protect his rights or in furtherance of his interests.

XII

After receiving the adverse decision rendered against his client, the defendant, Atty. Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase in the monetary damages awarded. The RTC instead rendered an amended decision further reducing the monetary awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving the amended decision? (3%)

“Fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

The final order already finally disposed of the issues involved in the case. Special Civil Action for Certiorari against the judge is the proper remedy of Atty Sikat’s client in this case.

XIII

An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the grounds of neglect of duties as administrator and absence from the country. On his part the heir/oppositor served written interrogatories to the administrator preparatory to presenting the latter as a witness. The administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not special proceedings. Rule on the matter. (4%)

Section 2 of Rule 73 Rules of Court provides that “in the absence of special provisions the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.” When, therefore, the rules on ordinary civil actions are not inconsistent with or when they may serve to supplement the provisions relating to special proceedings, the former are applicable to the latter.

Thus rules regarding preparation, filing and service of applications, motions and otherpapers are the same as in civil actions made applicable to that in special proceedings. The provisons regarding omnibus motion, subpoena, computation of time, motion for new trial, discovery, trial before commissioners also apply in special proceedings.

XIV

On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify on the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (4%)

The usual praxis that subpoenas are issued perfunctorily ex parte to compel production of testimonial and/or documentary evidence germane to the allegations made in a pleading (so long as they are not “privileged”). Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the weight (or lack of it) of the evidence produced thereby.

Exceptions to the privilege are:

1.When a lawyer is accused by the client and he needs to reveal information to defend himself

2.When the client discloses the intention to commit a crime or unlawful act (Future Crime).

For attorney-client privilege to apply, however,the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents.

For attorney-client privilege to apply, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed by Sansaet in the Tanodbayan. Crime of falsification had not yet been committed, hence, they are not covered by the privilege. It could also not have been covered by the privilege because Sansaet was himself a conspirator in the commission of the crime of falsification. In order that a communication between a lawyer and his client be privileged, it must be for a lawful purpose or in the furtherance of a lawful end. On the contrary, Sansaet, as lawyer, may be bound to disclose the info at once in the interest of justice. (People v. Sandiganbayan (1997))

XV

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

After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern half to Salvio. The judgment became final and executory. A writ of execution having been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that they are not bound by the judgment as they are not parties to the case. Is the contention tenable? Explain fully. (4%)

XV

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

After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern half to Salvio. The judgment became final and executory. A writ of execution having been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused, contending that they are not bound by the judgment as they are not parties to the case. Is the contention tenable? Explain fully. (4%)

Since they were not impleaded as parties and given the opportunity to participate in the Reconveyance case, the final judgment in said case cannot bind the three vendees. The effect of the said judgment cannot be extended to the three vendees by simply issuing an alias writ of execution against them. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution issued pursuant thereto. EMERITA MUÑOZ,Petitioner,- versus -SPOUSES SAMUEL GO CHAN and AIDA C. CHAN, and THE BANK OF THE PHILIPPINE ISLANDS,Respondents.G.R. No. 142676 G.R. No. 146718

XVI

The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible as evidence of guilt? (4%)

No. Normally a confession is only admissible against its maker, unless the defense consents.

XVII

Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben remained in possession of the property. When Ben failed to repurchase the same, title was consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred that the case should be dismissed because Del had never been in possession of the property. Is Ben correct? (4%

Ben occupied the property not in the concept of an owner for his stay was merely tolerated by Del.

In the case of Garcia vs. Court of Appeals (G.R. No. 133140, August 10, 1999), the court had occasion to explain the difference of Possession from Ownerhsip and subsequently detailed out the two different kinds of Possession. Possession and ownership are distinct legal concepts. Ownership exists when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others. Ownership confers certain rights to the owner, one of which is the right to dispose of the thing by way of sale.

Literally, to possess means to actually and physically occupy a thing with or without right. Possession may be had in one of two ways: possession in the concept of an owner and possession of a holder. A possessor in the concept of an owner may be the owner himself or one who claims to be so. On the other hand, one who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong.

Ben acknowledges Del’s superior right over the property.

XVIII

Domenico and Gen lived without benefit of marriage for twenty years, during which time they purchased properties together. After Domenico died without a will, Gen filed a petition for letters of administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. (4%)

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation like through death, therefore the surviving party can be appointed as administrator.

XIX

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

Under Rule 102? (2%)

Yes. The trial court is correct.

The Rules of Criminal Procedure provides that, all persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

In the case at bar, violation of BP 22 is cognizable by the MTC where bail may be availed as a matter of right before or after conviction. Hence, the Court is correct when it allowed Alma to post bail even after she started to serve her sentence.

Under the Rules of Criminal Procedure? (2%)

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty.[30] It was devised as a speedy and effectual remedy to relieve persons from unlawful restraint; or, more specifically, to obtain immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.[31] It is therefore a writ of inquiry intended to test the circumstances under which a person is detained.[32]

The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.[33] However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess.

However, in this case, we find that there was no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of law.

“any illegality attendant during the arrest is deemed cured when the accused voluntarily submitted themselves to the jurisdiction of the court by entering their plea.”

XX

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

Plaintiffs’ counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and information asked are privileged communication. Is the contention tenable? Explain. (4%)

The usual praxis that subpoenas are issued perfunctorily ex parte to compel production of testimonial and/or documentary evidence germane to the allegations made in a pleading (so long as they are not “privileged”). Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the weight (or lack of it) of the evidence produced thereby.

Exceptions to the privilege are:

1.When a lawyer is accused by the client and he needs to reveal information to defend himself

2.When the client discloses the intention to commit a crime or unlawful act (Future Crime).

For attorney-client privilege to apply, however,the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. (if past, privilege applies; if future, does not apply) In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts and/or accompanying words of Paredes at the time he and Honrada, either with active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents.

XXI

Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that under Rule 65 of the Rules of Civil Procedure. (4%)

Give at least three instances where the Court of Appeals may act as a trial court. (3%)

In the case Delia R. Nerves vs CSC, Petition filed by Nerves with the Court of Appeals substantially complied with Revised Administrative Circular 1-95. That it was erroneously labelled as a petition for certiorari under Rule 65 of the Rules of Court is only a minor procedural lapse, not fatal to the appeal. Although it is stated in par. 1 of her petition it is one “for certiorari filed pursuant to Article IX-A, Section 7 of the Constitution of the Philippines,” and, additionally, “under Rule 65 of the Rules of Court.” The same par. 1 is explained by par. 2 which states that, “But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular No. 1-91) petitioner is filing the instant petition with this Honorable Court (Court of Appeals) instead of the Supreme Court.” It must be emphasized that as long as there is substantial compliance with Revised Administrative Circular No. 1-95, the petition should be given due course. Moreover, the circular must be so interpreted and applied as to attain, not defeat, the ultimate purpose of all rules of procedure — which is to achieve substantial justice as expeditiously as possible.

Therefore if what Delia had in mind is the action under section 7 Article IX-A of the Constitution, her court is the SC not the CA, a marked difference among other things.

forgodanddeanceballos

BAR EXAMS QUESTIONS AND ANSWERS

2001

GEN TOPIC: RECEIVERSHIP

SPECIFIC: REMEDIES

Knowing what Jose has been doing. If you were Joaquin’s lawyer, what action would you take to preserve whatever remaining machinery and equipment are left with Jose? Why? (5%)

2001

GEN TOPIC: WRIT

May a writ of preliminary attachment be issued ex-parte? Briefly state the reason(s) for your answer. (3%)

SUGGESTED ANSWER:

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: ATTACHMENT

May a writ of preliminary attachment be issued ex-parte? Briefly state the reason(s) for your answer. (3%)

GEN TOPIC: PRE TRIAL REQUIREMENTS

REMOTELY RELATED TOPIC: EJECTMENT

Lilio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a sum against Juan. The latter filed his answer to the complaint serving a copy thereof on Lilio. After the filing of the answer of Juan, whose duty is it to have the case set for pre-trial? Why? (5%)

SUGGESTED ANSWER:

After the filing of the answer of Juan, the PLAINTIFF has the duty to promptly move ex parte that the case be set for pre-trial. (Sec. 1, Rule18). The reason is that it is the plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty to prosecute.

ALTERNATIVE ANSWER:

In the event the plaintiff files a reply, his duty to move that the case be set for pre-trial arises after the reply has been served and filed.

GEN TOPIC: PLEADINGS

SPECIFIC AMENDMENT OF COMPLAINT BY PLEAVE OF COURT

REMOTELY RELATED: PRE-TRIAL REQUIREMENTS

After an answer has been filed, can the plaintiff amend his complaint, with leave of court, by changing entirely the nature of the action? 4%

SUGGESTED ANSWER:

Yes, the present rules allow amendments substantially altering the nature of the cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870 [1997]).

GEN TOPIC: JUDGMENT

SPECIFIC: MANDAMUS VS QUO WARRANTO

SUGGESTED ANSWER:

ALTERNATIVE ANSWER:

Demurrer to Evidence (2001)

SUGGESTED ANSWER:

ALTERNATIVE ANSWER:

No, because when the appellate court reversed the order of the trial court it should have rendered judgment in favor of Carlos. (Quebral v. Court of Appeals, 252 SCRA 353, 1996)

GEN: DEFAULT

SPECIFIC: ORDER OF DEFAULT

SPECIFIC: EFFECT

Mario was declared in default but before judgment was rendered, he decided to file a motion to set aside the order of default.

a) What should Mario state in his motion in order to justify the setting aside of the order of default? (3%)

b) In what form should such motion be? (2%)

SUGGESTED ANSWER:

a) In order to justify the setting aside of the order of default, Mario should state in his motion that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. [Sec. 3(b) of Rule 9,].

b) The motion should be under oath. (Id.)

GEN TOPIC: KATARUNGANG PAMBARANGAY LAW

SPECIFIC: EXTENT OF ENTRY

a) Is the Lupon correct in refusing to execute the settlement/agreement? (3%)

b) What should be the course of action of the prevailing party in such a case? (2%)

SUGGESTED ANSWER:

a) Yes, the Lupon is correct in refusing to execute the settlement/agreement because the execution sought is already beyond the period of six months from the date of the settlement within which the Lupon is authorized to execute. (Sec. 417, Local Government Code of 1991)

b) After the six-month period, the prevailing party should move to execute the settlement/agreement in the appropriate city or municipal trial court. (Id.)

GEN TOPIC: JURISDICTION

SPECIFIC: PROBATE

Was the municipal circuit trial court correct in its ruling? Why? (5%)

SUGGESTED ANSWER:

GEN TOPIC: INFORMATION

SPECIFIC: AMENDMENT

SUGGESTED ANSWER:

GEN TOPIC: PROVISIONAL REMEDIES

SPECIFIC: TRO

ALTERNATIVE ANSWER: The temporary restraining order is not valid because the question does not state that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. (Sec. 5 of Rule 58)

GEN TOPIC: SPECIAL CIVIL ACTION

SPECIFIC: QUO WARRANTO

SUGGESTED ANSWER: No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a RTC in the City of Manila, as in this case, in the Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66)

GEN TOPIC: ADMISSIBILITY

ALTERNATIVE ANSWER: Yes, because the question did not lay the predicate to justify the cross-examination question.

GEN TOPIC: PROBATE OF WILL

SPECIFIC: MANDATORY IN NATURE

What should the court do if, in the course of intestate proceedings, a will is found and it is submitted for probate? Explain. (2%)

SUGGESTED ANSWER: If a will is found in the course of intestate proceedings and it is submitted for probate, the intestate proceedings will be suspended until the will is probated. Upon the probate of the will, the intestate proceedings will be terminated. (Rule 82, sec. 1).

ALTERNATIVE ANSWER:

The temporary restraining order is not valid because the question does not state that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. (Sec. 5 of Rule 58)

SUGGESTED ANSWER:

No. As expressly provided in the Rules, when the Solicitor General commences the action for quo warranto, it may be brought in a RTC in the City of Manila, as in this case, in the Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66)

ALTERNATIVE ANSWER:

Yes, because the question did not lay the predicate to justify the cross-examination question.

SUGGESTED ANSWER:

If a will is found in the course of intestate proceedings and it is submitted for probate, the intestate proceedings will be suspended until the will is probated. Upon the probate of the will, the intestate proceedings will be terminated. (Rule 82, sec. 1).