2008 Remedial Law Bar Questions and Suggested Answers

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. pon !otion, the court ordered the pu"lication of the su!!ons for three wee#s in a local ta"loid, $ulgar. Linda, an %&' (acationing in the Philippines, saw the su!!ons in $ulgar and "rought a copy of the ta"loid when she returned to Singapore. Linda showed the ta"loid and the page containing the su!!ons to Mary Rose, who said, )*es I #now, !y #u!are +nita scanned and e,!ailed that page of $ulgar to !e-) .id the court ac/uire 0urisdiction o(er Mary Rose1 (23) +nswer4 No. As a rule in constructive service, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam. Summons by publication against a nonresident in an action in personam is not a proper mode of service. II &e filed a suit for collection of P567,888 against Ra!on in the RTC of .a(ao City. +side fro! alleging pay!ent as a defense, Ra!on in his answer set up counterclai!s for P988,888 as da!ages and P58,888 as attorney:s fees as a result of the "aseless filing of the co!plaint, as well as for P;<8,888 as the "alance of the purchase price of the 58 units of air conditioners he sold to &e. .oes the RTC ha(e 0urisdiction o(er Ra!on:s counterclai!s, and if so, does he ha(e to pay doc#et fees therefor1 (53) nder the sa!e pre!ise as paragraph (") a"o(e, suppose that instead of alleging pay!ent as a defense in his answer, Ra!on filed a !otion to dis!iss on that ground, at the sa!e ti!e setting up his counterclai!s, and the court grants his !otion. 'hat will happen to his counterclai!s1 (53) +=S'>R4 The court acquires jurisdiction over the Counterclaim of amon, it arising out of the same transaction out of !hich the main action arose out of and amon"s counterclaim involves the same parties, subject matter and issues. According to #rofessor ene Callanta"s noteban$ %collected by his students& the follo!ing is a summation of the rules on !hether or not a counterclaim is subject to doc$et fees. ule '()* +iling fees*

ule '(* payment of filing fees is jurisdictional in civil cases ule ',* ho! does the court determine filing fees.ou include interest, damages, attorney"s fees etc. / pay everything that you allege for court fees but for jurisdictional purposes, just the principal claim ule '0* Sun Insurance 1 +iling fees must be paid !ithin prescriptive period or reglementary period %for appeals or compulsory counterclaims&, or else it is deemed prescribed ule ')* Alday v. +23 Insurance 1 #ermissive counterclaims require doc$et fees The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately. Compulsory counterclaims do not require doc$et fees . In 4orean Technologies case of ,556 / this is ho! you ans!er the question !hether compulsory counterclaims require filing fees +rom no!here, this case required that even compulsory counterclaims have doc$et fees paid. 4orean Technologies cited ule ()(. 7ut in practice, based on an SC esolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet. Alday* #ayment of filing fees for compulsory counterclaims is not required. 7ut you have to ta$e note of 4orean Technologies no! To sum it up, the counterclaim of amon is subject to payment of filing fees by virtue of ule ()( %la!&, 4orean Technologies %case la!& and an SC esolution %administrative issuances&. Suppose Ra!on?s counterclai! for the unpaid "alance is P598,888, what will happen to his counterclai!s if the court dis!isses the co!plaint after holding a preli!inary hearing on Ra!on?s affir!ati(e defenses1 (53) +nswer4 According to the ules of Court, !ithin the time provided for in the rules, you must signify to the court either (. .ou choose to pursue in a separate case the filing of your counterclaim, or ,. .ou !ish to resolve your counterclaim in the same case as the main complaint. S8C. 9. Counterclaim.:A counterclaim is any claim !hich a defending party may have against an opposing party. %9a& S8C. ;. Compulsory counterclaim.:A compulsory counterclaim is one !hich, being cogni<able by the regular courts of justice, arises out of or is connected !ith 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 !hom the court cannot acquire jurisdiction. Such a counterclaim must be !ithin the jurisdiction of the court both as to the amount and the nature thereof, e=cept that in an original action before the egional Trial Court, the counterclaim may be considered compulsory regardless of the amount. nder the sa!e pre!ise as paragraph (") a"o(e, suppose that instead of alleging pay!ent as a defense in his answer, Ra!on filed a !otion to dis!iss on that ground, at the sa!e ti!e setting up his counterclai!s, and the court grants his !otion. 'hat will happen to his counterclai!s1 (53) +nswer4 Again for variety, I cite #rof Callanta"s noteban$ that states that a counterclaim !hich in practice is not e=ecuted in a separate pleading(, this counterclaim must be ans!ered !ithin ten %(5& days from receipt by the plaintiff %or adverse party&. According to Sir Callanta, in practice a litigant only ans!ers a permissive counterclaim and compulsory counterclaims are rarely ans!ered. A counterclaim is not an ans!er, nor is it part of the ans!er. It is a distinct cause of action !hich must be ans!ered by the adverse party !ithin (5 days from service. The motion is not an implied admission of the allegations of the complaint but interposes the affirmative defense of payment. 3nder section 0 ule (( the plaintiff shall ans!er the same !ithin fifteen %(>& days after being served !ith a copy thereof. S8C. 0. Ans!er to amended complaint.1?here the plaintiff files an amended complaint as a matter of right, the defendant shall ans!er the same !ithin fifteen %(>& days after being served !ith a copy thereof. ?here its filing is not a matter of right, the defendant shall ans!er the amended complaint !ithin ten %(5& days from notice of the @rder admitting the same. An ans!er earlier filed may serve as the ans!er to the amended complaint, if no ne! ans!er is filed. This ule shall apply to the ans!er to an amended counterclaim amended cross1claim, amended third %fourth, etc.&1 party complaint, and amended complaint1in1intervention. III +ngela, a resident of @ueAon City, sued +ntonio, a resident of Ma#ati City "efore the RTC of @ueAon City for the recon(eyance of two parcels of land situated in Tarlac and =ue(a >ci0a, respecti(ely. May her action prosper1 (53) The SC in MunoA (s Bo Chan, a ;899 case declared that an action for declaration of nullity of title and reco(ery of ownership of real property, or re,con(eyance, is a real action "ut it is an action in persona!, for it "inds a particular indi(idual only although it concerns the right to a tangi"le thing. +ny 0udg!ent therein is "inding only upon the parties properly i!pleaded.

Since they were not i!pleaded as parties and gi(en the opportunity to participate in Ci(il Case =o. @,;6<68, the final 0udg!ent in said case cannot "ind $PI &a!ily and the spouses Chan. The effect of the said 0udg!ent cannot "e eCtended to $PI &a!ily and the spouses Chan "y si!ply issuing an alias writ of eCecution against the!. =o !an shall "e affected "y any proceeding to which he is a stranger, and strangers to a case are not "ound "y any 0udg!ent rendered "y the court. In the sa!e !anner, a writ of eCecution can "e issued only against a party and not against one who did not ha(e his day in court. %nly real parties in interest in an action are "ound "y the 0udg!ent therein and "y writs of eCecution issued pursuant thereto. Therefore deter!ination of (enue follows the general rule that it follows the residence of either the plaintiff or the defendant, at the option of the plaintiff, actions for recon(eyance of land "eing "y its (ery nature only an ordinary ci(il action. +ssu!ing that the action was for foreclosure on the !ortgage of the sa!e parcels of land, what is the proper (enue for the action1 (53) +nswer4 There are t!o vie!s as to determination of jurisdiction and venue of foreclosures on mortgage of real property. @ne vie! states that jurisdiction al!ays lie !ith the TC becaue it only covers the security of the property. The original action is al!ays for recovery of money. The other vie! is that jurisdiction determination must be governed by the value of the security. As to venue, it lies !ith the location of the property foreclosed. ID &ilo!eno "rought an action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino pleading two causes of action. The first was a de!and for the reco(ery of physical possession of a parcel of land situated in Pasay City with an assessed (alue of P28,888E the second was a clai! for da!ages of P<88,888 for Marcelino?s unlawful retention of the property. Marcelino filed a !otion to dis!iss on the ground that the total a!ount in(ol(ed, which is P<28,888, is "eyond the 0urisdiction of the MeTC. Is Marcelino correct1 (23) +=S'>R4 3nder the la! !hen the action refers to rights, title or interest over real property !here the value is ,5,555 for locations outside Aetro Aanila and >5,555.55 !ithin Aetro Aanila area, more particularly in cases of ecovery 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 @uano case, there !as a discussion as to !hich of +air Aar$et Balue or Assessed value should be used as basis for determining jurisdiction for Actions for ecovery of possession of real property. Assessed value !on. In @uano vs. #2TT International Investment Corporation, the Court ruled that the jurisdiction over the subject mater of the claim is determined by the assessed value and not the mar$et value since the action involves o!nership and possession of real property. 7# ' (,6 provides that ATC has jurisdiction over cases on real property !here the assessed value of the property or interest therein e=clusive of damages does not e=ceed #,5,555 or #>5,555 in civil actions in Aetro Aanila. the TC on the other hand has jurisdiction if the assessed value e=ceeds #,5,555 or #>5,555 in civil actions in Aetro Aanila. Thus, the amount of damages claimed should not be added in the computation as the la! e=plicitly e=cludes from the determination of jurisdictional amount the demand for C interest, damages of !hatever $ind, atorney"s fees, litigation e=penses, and cost. The said damages are merely incidental to, or a consequence of, the real property. Do!ever, Administrative Circular No. 5616) provides that in cases !here the claim for damages is the main cause of action, or one of the causes of action, the amount of such claim shall be considered in determining the jurisdiction of the court. D 'ithin the period for filing a responsi(e pleading, the defendant filed a !otion for "ill of particulars that he set for hearing on a certain date. Fowe(er, the defendant was surprised to find on the date set for hearing that the trial court had already denied the !otion on the day of its filing, stating that the allegations of the co!plaint were sufficiently !ade. .id the 0udge gra(ely a"use his discretion in acting on the !otion without waiting for the hearing set for the !otion1 (53) +nswer4 ?hen a party litigant files a Aotion for a 7ill of #articulars, that party aims to secure a more definite statement of facts that appear in the complaint that are not averred !ith sufficient particularity. As party litigant the Aotion must identify the defects in the Complaint and details desired. The judge gravely abused his discretion !ithout !aiting for the date set for the hearing of the motion because ho! can he ma$e a hasty determination as to the sufficiency of the evidence for the plaintiff !hen the issues have not as yet been joined, the defendant !as not yet at this stage able to submit his responsive pleading. The filing of a motion for 7ill of #articulars interrupts the period to file an ans!er and in no case shall the party litigant have less than five days to file the ans!er after his motion for 7ill of #articulars have been denied.

If the 0udge grants the !otion and orders the plaintiff to file and ser(e the "ill of particulars, can the trial 0udge dis!iss the case if the plaintiff does not co!ply with the order1 (53) +nswer4 .es. The court can dismiss the case according to the case of Birata vs Sandiganbayan that cites ule (;, section 0 on non1compliance of a court order by a party. DI +fter his properties were attached, defendant Porfirio filed a sufficient counter"ond. The trial court discharged the attach!ent. =onetheless, Porfirio suffered su"stantial pre0udice due to the unwarranted attach!ent. In the end, the trial court rendered a 0udg!ent in Porfirio?s fa(or "y ordering the plaintiff to pay da!ages "ecause the plaintiff was not entitled to the attach!ent. Porfirio !o(ed to charge the plaintiff?s attach!ent "ond. The plaintiff and his sureties opposed the !otion, clai!ing that the filing of the counter"ond had relie(ed the plaintiff?s attach!ent "ond fro! all lia"ility for the da!ages. Rule on Porfirio?s !otion. (23) +nswer4 At the outset the purpose of filing a counterbond is to indemnify the officer of the court charged !ith releasing property previously attached by a party litigant through the !rit of attachment. It is by these merits of a counterbond that the Supreme Court elucidated in the case of Aagaling vs @ng that the mere filing of a counterbond does not automatically discharge the attachment. There must be a specific resolution for the discharge. DII The writ of eCecution was returned unsatisfied. The 0udg!ent o"ligee su"se/uently recei(ed infor!ation that a "an# holds a su"stantial deposit "elonging to the 0udg!ent o"ligor. If you are the counsel of the 0udg!ent o"ligee, what steps would you ta#e to reach the deposit to satisfy the 0udg!ent1 (53) +nswer4 According to Section 6 of the ules of Court on 8=ecution of judgments for money, If the judgment obligor cannot pay all or part of the obligation in cash, certified ban$ chec$ or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every $ind and nature !hatsoever !hich may be disposed of for value and the court officer shall first levy on the personal properties. Eebts and Credits may also be garnished and the court officer may levy on debts due the judgment obligor and other credits, including ban$ deposits not capable of manual delivery in the possession or control of third parties. Fevy shall be made by serving notice upon the person having in his possession or control such credits to !hich the judgment obligor is entitled.

The garnishee shall ma$e a !ritten report to the court !ithin five days from service of the notice of garnishment stating !hether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state ho! much funds or credits the garnishee holds for the judgment obligor. The garnished amount in cash, or certified ban$ chec$ issued issued in the name of the judgment obligee, shall be delivered directly to the judgment obligee !ithin ten %(5 !or$ing days from service of notice on said garnishee requiring such delivery. 7ased on the foregoing, the sheriff is required to first ma$e a demand of the obligor the immediate payment of the full amount stated in the !rit of e=ecution before a levy can be made. In a case, respondent had sho!n that he caused the service of the !rit of e=ecution pending appeal upon #AF thru its legal department on Eecember ((, ,55, at 0*,> p.m. ecords !ill sho! that !hile #AF received the copy of the !rit on Eecember ((, ,55,, its depository ban$s received copies of the !rit as !ell as notices of garnishment on the same day at an earlier time than #AF received the !rit of e=ecution as sho!n by the stamped receipt thereon, thus, China 7an$ at ,*0, p.m., G#Aorgan Chase 7an$ at ,*)H p.m., Dong$ong and Shanghai 7an$ at ,*>) p.m., and Allied 7an$ing Corporation at 0*,5 p.m. Notably, respondent did not observe the procedure mandated under the ules of Court that he should first ma$e a demand of the obligor the immediate payment of the full amount stated in the !rit of e=ecution. An e=peditious e=ecution of the !rit should not be done at the e=pense of depriving the obligor the chance to pay the judgment debt. If the "an# denies holding the deposit in the na!e of the 0udg!ent o"ligor "ut your client?s infor!ant is certain that the deposit "elongs to the 0udg!ent o"ligor under an assu!ed na!e, what is your re!edy to reach the deposit1 (53) +nswer4 As counsel I !ill cause the service of copies of the !rit as !ell as the notice for garnishment on the ban$ that my client"s informant !ill 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 !e are not e=actly requiring the ban$ to divulge the amounts held but only the information as to !hether or not funds e=ist in their institution that belongs to the judgment obligor. DIII $e!"ol was charged with rape. $e!"ol?s father, Ra!il, approached +rte!on, the (icti!?s father, during the preli!inary in(estigation and offered P9 Million to +rte!on to settle the case. +rte!on refused the offer. .uring trial, the prosecution presented +rte!on to testify on Ra!il?s offer and there"y esta"lish an i!plied ad!ission of guilt. Is Ra!il?s offer to settle ad!issi"le in e(idence1 (53)

.uring the pre,trial, $e!"ol personally offered to settle the case for P9 Million to the pri(ate prosecutor, who i!!ediately put the offer on record in the presence of the trial 0udge. Is $e!"ol?s offer a 0udicial ad!ission of his guilt1 (53) +nswer4 No. An offer to compromise does not, as a general rule, amount to an admission of liability It is an implied admission of guilt. Do!ever prosecution must prove by preponderance of evidence that there is an admission of liability th reason being that there is no presumption and due to the fact that the proof !ill only result in a judgment of pecuniary damages or establish civil right. 2uilt beyond reasonable doubt is still required to convict 7embol. Aoreover during pre1trial proceedings, it is mandatory for parties to thresh out preliminary issues, define terms, e=plore the possibility of a compromise so as to aid the courts in unclogging its doc$ets by mapping out undefined territories before both parties could go to trial. IG The search warrant authoriAed the seiAure of Hundeter!ined /uantity of sha"u.I .uring the ser(ice of the search warrant, the raiding tea! also reco(ered a #ilo of dried !ari0uana lea(es wrapped in newsprint. The accused !o(ed to suppress the !ari0uana lea(es as e(idence for the (iolation of Section 99 of the Co!prehensi(e .angerous .rugs +ct of ;88; since they were not co(ered "y the search warrant. The State 0ustified the seiAure of the !ari0uana lea(es under the Hplain (iewI doctrine. There was no indication of whether the !ari0uana lea(es were disco(ered and seiAed "efore or after the seiAure of the sha"u. If you are the 0udge, how would you rule on the !otion to suppress1 (23 +nswer4 Aotion to quash a search !arrant or to suppress evidence %Section () of ule (,9& 1 A motion to quash a search !arrant andIor to suppress evidence obtained thereby may be filed in and acted upon only by the court !here 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 !arrant. Do!ever, 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. @liver Fo<ano defended an alleged drug lord by filing a motion to suppress the State"s evidence, a shipload of drugs. Atty. Fo<ano argued that there !as no evidence lin$ing the boatload of drugs to the accused, that the ship !as registered in another person"s name, etc. The judge agreed !ith this contention and dismissed the complaint !ithout a full1blo!n trial.

As for Aotions for judicial determination of probable cause, the case of J#eople of the #hilippines vs. Castillo et alC, 2. . No.((HH, Gune (6, ,556 gives an instruction on this point. There are t!o $inds of determination of probable cause* e=ecutive and judicial. The e=ecutive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor !ho is given a broad discretion to determine !hether probable cause e=ists and to charge those !hom he believes to have committed the crime as defined by la! and thus should be held for trial. @ther!ise stated, such official has the quasi1judicial authority to determine !hether or not a criminal case must be filed in court. ?hether or not that function has been correctly discharged by the public prosecutor, i.e., !hether or not he has made a correct ascertainment of the e=istence 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 !hether a !arrant 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 !arrant. Corollary to the principle that a judge cannot be compelled to issue a !arrant 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 !arrant !as insufficient. It must be stressed that in our criminal justice system, the public prosecutor e=ercises a !ide latitude of discretion in determining !hether a criminal case should be filed in court, and that courts must respect the e=ercise of such discretion !hen 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 !ith the matter of !hether the judge should issue a !arrant of arrest against the accused or not. As to !hether 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. Eefense la!yers should no! refrain from filing a Jmotion for judicial determination of probable causeC for three reasons* The judge is already duty1bound to determine !hether there is probable cause for the issuance of a !arrant of arrest. De studies the records of the preliminary investigation %complaint, counter1affidavit, affidavit of !itnesses, documentary evidences, etc. De then decides !hether to issue a !arrant of arrest or not. There is therefore no need for a defense la!yer to file a Jmotion for judicial determination of probable causeC. 7y filing such a motion, the defense la!yer disrespects or even insults the judge.

As discussed above, the defense la!yer"s intention for filing this motion is actually to shortcut the proceedings by as$ing the judge to rule !hether the accused should be held for trial or not, even !ithout a full1blo!n trial. As the Supreme Court ruled in this case, J!hether or not that function has been correctly discharged by the public prosecutor, i.e., !hether or not he has made a correct ascertainment of the e=istence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass uponC. %In one controversial case e=tensively covered by the media, the judge has already issued a !arrant of arrest and the accused has posted bail. 7ut the judge re1set the arraignment because the defense la!yer has filed a Jmotion for judicial determination of probable causeC. I !onder if the defense la!yer and the judge are a!are of the Supreme Court ruling in the J#eople of the #hilippines vs. Castillo et alC case. If the defense la!yer thin$s that the information filed against the accused is not valid on its face and that there !as manifst error or grave abuse of discretion on the part of the public prosecutor, the proper remedy is to file a motion for re1investigation, not a Jmotion for judicial determination of probable causeC. G Jose, +l"erto and Ro!eo were charged with !urder. pon filing of the infor!ation, the RTC 0udge issued the warrants for their arrest. Learning of the issuance of the warrants, the three accused 0ointly filed a !otion for rein(estigation and for the recall of the warrants of arrest. %n the date set for hearing of their !otion, none of the accused showed up in court for fear of "eing arrested. The RTC 0udge denied their !otion "ecause the RTC did not ac/uire 0urisdiction o(er the persons of the !o(ants. .id the RTC rule correctly1 (23) +nswer4 No. The TC erred in denying the motion. 3nder the la!, voluntary appearance is one of the modes of acquiring jurisdiction over the K reinvestigation and for the recall of the !arrants of arrest is equivalent to voluntary appearance. Dence, !hen the accused filed their motion, the court acquired jurisdiction over their person. 7asically, it just says the court acquires jurisdiction over the person of the accused !hen heIshe submits motions, etc even if he"s not detained. 7ut the e=ception is the petition for admission to bail 1 the accused has to be held in detention in such case. The voluntary appearance of the accused, !hereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits %such as by filing a motion to quash or other pleadings requiring the e=ercise of the court"s jurisdiction thereover, appearing for arraignment, entering trial& or by filing bail. GI

+rturo lent P9 Million to his friend Ro"ert on the condition that Ro"ert eCecute a pro!issory note for the loan and a real estate !ortgage o(er his property located in Tagaytay City. Ro"ert co!plied. In his pro!issory note dated Septe!"er ;8, ;88K, Ro"ert undertoo# to pay the loan within a year fro! its date at 9;3 per annu! interest. In June ;887, +rturo re/uested Ro"ert to pay ahead of ti!e "ut the latter refused and insisted on the agree!ent. +rturo issued a de!and letter and when Ro"ert did not co!ply, +rturo filed an action to foreclose the !ortgage. Ro"ert !o(ed to dis!iss the co!plaint for lac# of cause of action as the de"t was not yet due. The resolution of the !otion to dis!iss was delayed "ecause of the retire!ent of the 0udge. %n %cto"er 9, ;887, pending resolution of the !otion to dis!iss, +rturo filed an a!ended co!plaint alleging that Ro"ert?s de"t had in the !eanti!e "eco!e due "ut that Ro"ert still refused to pay. Should the a!ended co!plaint "e allowed considering that no answer has "een filed1 (53) +nswer4 No. In the instant case, the original complaint !as for the +@ 8CF@S3 8 of the real estate mortgage e=ecuted in favor of A T3 @. Arturo prayed for the foreclosure on the mortage constituted by oberto as security for the payment of his loan to Arturo !hich matures on September ,55;, months before the +oreclosure action !as instituted by Arturo. eali<ing his mista$e no! Arturo amends his comlaint and runs after the mortgaged properties under the theory of matured loans only no! becoming due and demanda #arenthetically, the amendments sought altered the cause of action of the original complaint. This cannot be done. obert"s contentions are anchored on the follo!ing* I Section ,, ule ( 5 of the 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 ( and ,, ule (5 of the evised ules of Court provide* ules of Court gives a party a right to amend his pleading

Section (. Amendments in general. : #leadings may be amended by adding or stri$ing out an allegation or the name of any party, or by correcting a mista$e in the name of a party or a mista$en or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, !ithout regard to technicalities, and in the most e=peditious and ine=pensive manner. L

Section ,. ?hen amendments allo!ed 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 !hich no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time !ithin ten %(5& days after it is served. Ta$ing into consideration these t!o provisions, !e have ruled that amendments of pleadings may be resorted to subject to the condition that the amendments sought do not alter the cause of action of the original complaint %Alger 8lectric v. Court of Appeals, (0> SC A 0;& or are not inconsistent !ith the allegations in the original complaint, but are obviously intended to clarify the intrinsic ambiguity in them !ith respect to the time of the accrual of the movant"s cause of action 2uino v. Ber, (9 SC A 90H&. 'ould your answer "e different had +rturo filed instead a supple!ental co!plaint stating that the de"t "eca!e due after the filing of the original co!plaint1 (;3) +nswer4 .es. The supplemental complaint alleged petitioner"s subsequent acts in asserting its rights as such purported obligee and mortgagor. Thus, the acts complained of under the supplemental complaint, namely* that A T3 @ ma$es a second demand on the amounts o!ing and due from oberto are acts calculated to e=ercise 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 ne! allegations in the supplemental complaint sought remedies only for subsequent acts perpetrated by oberto, his not filing of an ans!er to the original complaint, to protect his rights or in furtherance of his interests. GII +fter recei(ing the ad(erse decision rendered against his client, the defendant, +tty. Si#at duly filed a notice of appeal. &or his part, the plaintiff ti!ely filed a !otion for partial new trial to see# an increase in the !onetary da!ages awarded. The RTC instead rendered an a!ended decision further reducing the !onetary awards. Is it necessary for +tty. Si#at to file a second notice of appeal after recei(ing the a!ended decision1 (53) +nswer4 J+resh period ruleC shall also apply to ule )5 governing appeals from the Aunicipal Trial Courts to the egional Trial CourtsM ule ), on petitions for revie! from the egional Trial Courts to the Court of AppealsM ule )0 on appeals from quasi1judicial agencies to the Court of Appeals and ule )> governing appeals by certiorari to the Supreme Court. The ne! rule aims to regiment or ma$e the appeal period uniform, to be counted from receipt of the order denying the motion for ne! trial, motion for reconsideration %!hether 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 Si$at"s client in this case. GIII +n heirLoppositor in a pro"ate proceeding filed a !otion to re!o(e the ad!inistrator on the grounds of neglect of duties as ad!inistrator and a"sence fro! the country. %n his part the heirLoppositor ser(ed written interrogatories to the ad!inistrator preparatory to presenting the latter as a witness. The ad!inistrator o"0ected, insisting that the !odes of disco(ery apply only to ordinary ci(il actions, not special proceedings. Rule on the !atter. (23) +nswer4 Section , of ule ;0 ules of Court provides that Jin the absence of special provisions the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.C ?hen, therefore, the rules on ordinary civil actions are not inconsistent !ith or !hen 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 ne! trial, discovery, trial before commissioners also apply in special proceedings. GID %n +ugust 9<, ;886, >dgardo co!!itted estafa against Petronilo in the a!ount of P5 Million. Petronilo "rought his co!plaint to the =ational $ureau of In(estigation, which found that >dgardo had (isited his lawyer twice, the first ti!e on +ugust 92, ;886 and the second on +ugust 9K, ;886E and that "oth (isits concerned the swindling of Petronilo. .uring the trial of >dgardo, the RTC issued a su"poena ad testificandu! to >dgardo?s lawyer for hi! to testify on the con(ersations during their first and second !eetings. May the su"poena "e /uashed on the ground of pri(ileged co!!unication1 >Cplain fully. (23) +nswer4 The usual practice that subpoenas are issued perfunctorily e= parte to compel production of testimonial andIor documentary evidence germane to the allegations made in a pleading %so long as they are not JprivilegedC&. Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the !eight %or lac$ of it& of the evidence produced thereby. 8=ceptions to the privilege are*

(.?hen a la!yer is accused by the client and he needs to reveal information to defend himself ,.?hen the client discloses the intention to commit a crime or unla!ful act %+uture Crime&. +or attorney1client privilege to apply, ho!ever,the period to be considered is the date !hen the privileged communication !as made by the client to the attorney in relation to either a crime committed in the past or !ith respect to a crime intended to be committed in the future. %if past, privilege appliesM if future, does not apply& In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts andIor accompanying !ords of #aredes at the time he and Donrada, either !ith active or passive participation of Sansaet, !ere about to falsify, or in the process of falsifying, the documents. +or attorney1client privilege to apply, ho!ever, the period to be considered is the date !hen the privileged communication !as made by the client to the attorney in relation to either a crime committed in the past or !ith respect to a crime intended to be committed in the future. %if past, privilege appliesM if future, does not apply& In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts andIor accompanying !ords of #aredes at the time he and Donrada, either !ith active or passive participation of Sansaet, !ere about to falsify, or in the process of falsifying, the documents !hich !ere 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 !as himself a conspirator in the commission of the crime of falsification. In order that a communication bet!een a la!yer and his client be privileged, it must be for a la!ful purpose or in the furtherance of a la!ful end. @n the contrary, Sansaet, as la!yer, may be bound to disclose the info at once in the interest of justice. %#eople v. Sandiganbayan %(66;&&

GD Falf,"rothers Roscoe and Sal(io inherited fro! their father a (ast tract of unregistered land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and transferring the taC declaration thereon in his na!e. Roscoe sold the northern half to $ono, Sal(io?s cousin. pon learning of the sale, Sal(io as#ed Roscoe to con(ey the southern half to hi!. Roscoe refused as he e(en sold one,third of the southern half along the 'est to Carlo. Thereupon, Sal(io filed an action for the recon(eyance of the southern half against Roscoe only. Carlo was not i!pleaded. +fter filing his answer, Roscoe sold the !iddle third of the southern half to =ina. Sal(io did not a!end the co!plaint to i!plead =ina. +fter trial, the court rendered 0udg!ent ordering Roscoe to recon(ey the entire southern half to Sal(io. The 0udg!ent "eca!e final and eCecutory. + writ of eCecution ha(ing

"een issued, the Sheriff re/uired Roscoe, Carlo and =ina to (acate the southern half and yield possession thereof to Sal(io as the pre(ailing party. Carlo and =ina refused, contending that they are not "ound "y the 0udg!ent as they are not parties to the case. Is the contention tena"le1 >Cplain fully. (23) +nswer4 Since they !ere not impleaded as parties and given the opportunity to participate in the econveyance case, the final judgment in said case cannot bind the three vendees. The effect of the said judgment cannot be e=tended to the three vendees by simply issuing an alias !rit of e=ecution against them. No man shall be affected by any proceeding to !hich he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a !rit of e=ecution can be issued only against a party and not against one !ho did not have his day in court. @nly real parties in interest in an action are bound by the judgment therein and by !rits of e=ecution issued pursuant thereto. 8A8 ITA A3N@O,#etitioner,1 versus 1S#@3S8S SAA38F 2@ CDAN and AIEA C. CDAN, and TD8 7AN4 @+ TD8 #DIFI##IN8 ISFANES, espondents.2. . No. (),9;9 2. . No. ()9;(H GDI The !utilated cada(er of a wo!an was disco(ered near a cree#. .ue to witnesses attesting that he was the last person seen with the wo!an when she was still ali(e, Carlito was arrested within fi(e hours after the disco(ery of the cada(er and "rought to the police station. The cri!e la"oratory deter!ined that the wo!an had "een raped. 'hile in police custody, Carlito "ro#e down in the presence of an assisting counsel and orally confessed to the in(estigator that he had raped and #illed the wo!an, detailing the acts he had perfor!ed up to his du!ping of the "ody near the cree#. Fe was genuinely re!orseful. .uring the trial, the State presented the in(estigator to testify on the oral confession of Carlito. Is the oral confession ad!issi"le as e(idence of guilt1 (23) +nswer4 No. Normally a confession is only admissible against its ma$er, unless the defense consents. GDII $en sold a parcel of land to .el with right to repurchase within one (9) year. $en re!ained in possession of the property. 'hen $en failed to repurchase the sa!e, title was consolidated in fa(or of .el. .espite de!and, $en refused to (acate the land, constraining .el to file a co!plaint for unlawful detainer. In his defense, $en a(erred that the case should "e dis!issed "ecause .el had ne(er "een in possession of the property. Is $en correct1 (23) +nswer4

7en occupied the property not in the concept of an o!ner for his stay !as merely tolerated by Eel. In the case of 2arcia vs. Court of Appeals %2. . No. (00()5, August (5, (666&, the court had occasion to e=plain the difference of #ossession from @!nerhsip and subsequently detailed out the t!o different $inds of #ossession. #ossession and o!nership are distinct legal concepts. @!nership e=ists !hen a thing pertaining to one person is completely subjected to his !ill in a manner not prohibited by la! and consistent !ith the rights of others. @!nership confers certain rights to the o!ner, one of !hich is the right to dispose of the thing by !ay of sale. Fiterally, to possess means to actually and physically occupy a thing !ith or !ithout right. #ossession may be had in one of t!o !ays* possession in the concept of an o!ner and possession of a holder. A possessor in the concept of an o!ner may be the o!ner himself or one !ho claims to be so. @n the other hand, one !ho possesses as a mere holder ac$no!ledges in another a superior right !hich he believes to be o!nership, !hether his belief be right or !rong. 7en ac$no!ledges Eel"s superior right over the property. GDIII .o!enico and Ben li(ed without "enefit of !arriage for twenty years, during which ti!e they purchased properties together. +fter .o!enico died without a will, Ben filed a petition for letters of ad!inistration. .o!enico?s si"lings opposed the sa!e on the ground that Ben has no legal personality. .ecide. (23) +nswer4 In the absence of proof to the contrary, properties acquired !hile they lived together shall be presumed to have been obtained by their joint efforts, !or$ or industry, and shall be o!ned by them in equal shares. +or purposes of this Article, a party !ho 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 o!ned in common, !ithout the consent of the other, until after the termination of their cohabitation li$e through death, therefore the surviving party can be appointed as administrator. GIG +fter +l!a had started ser(ing her sentence for (iolation of $atas Pa!"ansa $lg. ;; ($P ;;), she filed a petition for writ of ha"eas corpus, citing Daca (s. C+ where the sentence of i!prison!ent of a party found guilty of (iolation of $P ;; was reduced to a fine e/ual to dou"le the a!ount of the chec# in(ol(ed. She prayed that her sentence "e si!ilarly !odified and that she "e i!!ediately released fro! detention. In the

alternati(e, she prayed that pending deter!ination on whether the Daca ruling applies to her, she "e allowed to post "ail pursuant to Rule 98;, Sec.92, which pro(ides that if a person is lawfully i!prisoned or restrained on a charge of ha(ing co!!itted an offense not punisha"le "y death, he !ay "e ad!itted to "ail in the discretion of the court. +ccordingly, the trial court allowed +l!a to post "ail and then ordered her release. In your opinion, is the order of the trial court correct , nder Rule 98;1 (;3) +nswer4 .es. The trial court is correct. The ules of Criminal #rocedure provides that, all persons in custody shall be admitted to bail as a matter of right, !ith sufficient sureties, or released on recogni<ance as prescribed by la! or this ule %a& before or after conviction by the Aetropolitan Trial Court, Aunicipal Trial Court, Aunicipal Trial Court in Cities, or Aunicipal Circuit Trial Court, and %b& before conviction by the egional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. In the case at bar, violation of 7# ,, is cogni<able by the ATC !here bail may be availed as a matter of right before or after conviction. Dence, the Court is correct !hen it allo!ed Alma to post bail even after she started to serve her sentence. nder the Rules of Cri!inal Procedure1 (;3) +nswer4 The !rit of habeas corpus applies to all cases of illegal confinement or detention in !hich individuals are deprived of liberty.P05Q It !as devised as a speedy and effectual remedy to relieve persons from unla!ful restraintM or, more specifically, to obtain immediate relief for those !ho may have been illegally confined or imprisoned !ithout sufficient cause and thus deliver them from unla!ful custody.P0(Q It is therefore a !rit of inquiry intended to test the circumstances under !hich a person is detained.P0,Q The !rit may not be availed of !hen the person in custody is under a judicial process or by virtue of a valid judgment.P00Q Do!ever, as a post1conviction remedy, it may be allo!ed !hen, as a consequence of a judicial proceeding, any of the follo!ing e=ceptional circumstances is attendant* %(& there has been a deprivation of a constitutional right resulting in the restraint of a personM %,& the court had no jurisdiction to impose the sentenceM or %0& the imposed penalty has been e=cessive, thus voiding the sentence as to such e=cess. Do!ever, in this case, !e find that there !as no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of la!. Jany illegality attendant during the arrest is deemed cured !hen the accused voluntarily submitted themselves to the jurisdiction of the court by entering their plea.C GG

+ tug"oat owned "y Speedy Port Ser(ice, Inc. (SPS) san# in Manila $ay while helping tow another (essel, drowning fi(e (<) of the crew in the resulting shipwrec#. +t the !ariti!e "oard in/uiry, the four (2) sur(i(ors testified. SPS engaged +tty. >ly to defend it against potential clai!s and to sue the co!pany owning the other (essel for da!ages to the tug. >ly o"tained signed state!ents fro! the sur(i(ors. Fe also inter(iewed other persons, in so!e instance !a#ing !e!oranda. The heirs of the fi(e (<) (icti!s filed an action for da!ages against SPS. Plaintiffs? counsel sent written interrogatories to >ly, as#ing whether state!ents of witnesses were o"tainedE if written, copies were to "e furnishedE if oral, the eCact pro(isions were to "e set forth in detail. >ly refused to co!ply, arguing that the docu!ents and infor!ation as#ed are pri(ileged co!!unication. Is the contention tena"le1 >Cplain. (23) +nswer4 The usual pra=is that subpoenas are issued perfunctorily e= parte to compel production of testimonial andIor documentary evidence germane to the allegations made in a pleading %so long as they are not JprivilegedC&. Nobody is sent to jail for procuring subpoenas in aid of prosecuting or defending cases. The paramount interest is the search for the truth. It is up to the court to determine the !eight %or lac$ of it& of the evidence produced thereby. 8=ceptions to the privilege are* (.?hen a la!yer is accused by the client and he needs to reveal information to defend himself ,.?hen the client discloses the intention to commit a crime or unla!ful act %+uture Crime&. +or attorney1client privilege to apply, ho!ever,the period to be considered is the date !hen the privileged communication !as made by the client to the attorney in relation to either a crime committed in the past or !ith respect to a crime intended to be committed in the future. %if past, privilege appliesM if future, does not apply& In the present case, testimony sought to be elicited from Sansaet are communications made to him by physical acts andIor accompanying !ords of #aredes at the time he and Donrada, either !ith active or passive participation of Sansaet, !ere about to falsify, or in the process of falsifying, the documents. GGI Co!pare the certiorari 0urisdiction of the Supre!e Court under the Constitution with that under Rule K< of the Rules of Ci(il Procedure. (23) Bi(e at least three instances where the Court of +ppeals !ay act as a trial court. (53) +nswer4

In the case Eelia . Nerves vs CSC, #etition filed by Nerves !ith the Court of Appeals substantially complied !ith evised Administrative Circular (16>. That it !as erroneously labelled as a petition for certiorari under ule 9> of the ules of Court is only a minor procedural lapse, not fatal to the appeal. Although it is stated in par. ( of her petition it is one Jfor certiorari filed pursuant to Article IR1A, Section ; of the Constitution of the #hilippines,C and, additionally, Junder ule 9> of the ules of Court.C The same par. ( is e=plained by par. , !hich states that, J7ut per Supreme Court evised Administrative Circular No. (16> % evised Circular No. (16(& petitioner is filing the instant petition !ith this Donorable Court %Court of Appeals& instead of the Supreme Court.C It must be emphasi<ed that as long as there is substantial compliance !ith evised Administrative Circular No. (16>, the petition should be given due course. Aoreover, the circular must be so interpreted and applied as to attain, not defeat, the ultimate purpose of all rules of procedure : !hich is to achieve substantial justice as e=peditiously as possible. Therefore if !hat Eelia had in mind is the action under section ; Article IR1A of the Constitution, her court is the SC not the CA, a mar$ed difference among other things.

Broup Me!"ers4

+ngelito Batillo +linogen CuiAon +lain Paul Su!agang Roland +li(io Celso +fa"le, Jr. Rolando CaMete