Remedial Law 2007

- I -
10%
a. What are the rules on the recognition and enforcement of foreign judgments in
our courts? (6%)

The rules on the recognition and enforcement of foreign judgments in our courts are
as follows:
1. In the case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing. (Rule 39, Section 48[a], Rules of Court)

2. In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence against of a right as between the parties and their successors in
interest by a subsequent title. (Rule 39, Section 48[b], Rules of Court)

3. In either case, the judgment or final order may be repelled by evidence of a want
of jurisdiction, want of notice to the party, collusion, or fraud, or clear mistake of
law or fact. (Rule 39, Section 48, last paragraph, Rules of Court)

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

No. Foreign arbitral awards are not enforced like foreign court judgments under Rule
39 of the Rules of Court, but they can be enforced under Section 44 (RA
9285, Alternative Dispute Resolution Act of 2004) A foreign arbitral award, when
confirmed by the RTC, shall be enforced in the same manner as final and executory
decisions of courts of the Philippines. Said law provides that the case shall be filed
with the Regional Trial Court as a special proceeding, and if the 1958 New York
Convention on the Recognition and Enforcement of Foreign Judgments is not
applicable, the court may, on grounds of comity and reciprocity, recognize a non-
convention award as a convention award.

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%)

Yes, a global injunction also known as the Mareva injunction, should be considered as
an order of a foreign court. Therefore, the rule on recognition and enforcement of
foreign judgments under Rule 39 must apply. (Asiavest Merchant Bankers v. CA, G.R.
No. 110263, July 20, 2001) However, to prevent dissipation of funds, the action to
enforce must be accompanied with an application for preliminary injuction.
- II -
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%)
FALSE. For the survivor disqualification rule of the Dead Man Statute to apply, one of
the requisites is that the witness being offered is either a party plaintiff, or his
assignor or a person in whose behalf a case is prosecuted. (Rule 130, Section 23, Rules
of Court). Hence, Maria, being a mere witness who does not fall within the
prohibition, is not barred from testifying. (Section 23, Rule 130, Rules of Court; Razon
v. Intermediate Appellate Court, G.R. Nos. 74306 and 74315, March 16, 1992).

b. A defendant who has been declared in default can avail of a petition for relief
from the judgment subsequently rendered in the case. (3%)
FALSE. A petition for relief is an equitable remedy that can be availed of only if the
assailed judgment has been entered for being final and executory. (Sections 1 and 3,
Rule 38, Rules of Court; Aboitiz International Forwarders, Inc., v. Court of Appeals,
G.R. No. 142272, May 2, 2006 and other cases)

c. A motion is pleading. (2%)
FALSE. A motion is not a pleading. A motion is an application for relief other than by a
pleading (Section 1, Rule 15, 1997 Rules of Civil Procedure), except that in summary
procedure when a prohibited motion to dismiss is filed, the court may treat the same
as a pleading. Pleadings are the written statements of the respective claims and
defenses on the parties submitted to the court for appropriate judgment. (Section 1,
Rule 6, 1997 Rules of Civil Procedure)

d. A counterclaim is pleading. (2%)
TRUE. A counterclaim is a pleading because it is claim submitted to the court for
appropriate judgment. (Section 1, Rule 6, 1997 Rules of Civil Procedure). It is any
claim which a defending party may have against an opposing party. (Section 6, Rule 6,
1997 Rules of Civil Procedure).
- III -
10%
1. What is the hearsay rule? (5%)

The hearsay rule is that a witness can testify only to those facts which he knows of his
personal knowledge; that is, those which are derived from his own perception, except
as otherwise provided in the rules. (Section 36, Rule 130, Rules of Court). Moreover,
hearsay evidence also includes all assertions though derived from personal knowledge,
where the adverse party is not given an opportunity to cross-examine. (Section 36,
Rule 130, Rules of Court)

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;
2. The rule on dying declarations;
3. The rule on admissions against interest.

Statements that are part of the res gestae (Section 42, Rule 130, Rules of Court),
dying declarations (Section 37, Rule 130, Rules of Court) and admissions against
interest (Section 38, Rule 130, Rules of Court) are all exceptions to the hearsay rule.
- 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.

The husbands motion to dismiss his wifes petition for habeas corpus, should be
granted because the case for nullity of marriage constitutes litis pendentia. The
custody of the minor child and the action for nullity of the marriage are not separate
causes of action. Judgment on the issue of custody in the nullity of marriage case
before the Pasig RTC, regardless of which party would prevail, would constitute res
judicata on the habeas corpus case before the Pasay RTC since the former has
jurisdiction over the parties and the subject matter. (Yu v. Yu, G.R. No. 164915,
March 10, 2006; Section 1[e], Rule 16, 1997 Rules of Civil Procedure; Section 2, Rule
102, Rules of Court). The evidence to support thepetition for nullity necessarily
involves evidence of fitness to take custody of the child as the court in the nullity
proceedings has a duty under the Family Code to protect the bets interest of the
child.
- V -
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%)

The effects of filing of a demurrer to the evidence in a criminal case. (Section 23,
Rule 119, 2000 Rules of Criminal Procedure) are different from the effects ofthe
filing of a demurrer in a civil case (Rule 33, 1997 Rules of Civil Procedure), as
follows:

1. In a civil case, after the plaintiff has completed the presentation of his evidence,
the defendant may move for dismissal on the ground that based on the facts and the
law, the plaintiff has shown no right to relief. If the demurrer is denied, the movant
shall have the right to present evidence. If the demurrer is granted but on appeal the
order of dismissal is reversed, the movant shall be deemed to have waived the right
to present evidence. (Section 1, Rule 33, 1997 Rules of Civil Procedure).

2. In criminal cases, after the prosecution has rested its case, the court may dismiss
the action on the ground of insufficiency of evidence (1) on its own initiative after
giving the prosecution an opportunity to be heard or (2) upon demurrer to evidence
filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused
may adduce evidence in his defense. When the demurrer to evidence is filed without
leave of court, the accused waives his right to present evidence and submits the case
for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its
grounds and shall be filed within a non-extendible period of five (5) days from its
receipt.

If the leave of court is granted, the accused shall file the demurrer to evidence within
a non-extendible period of ten (10) days from notice. The prosecution may oppose the
demurrer to evidence within a similar period from its receipt.

The order denying the motion for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or certiorari before the judgment.
(Section 23, Rule 119, 2000 Rules of Criminal Procedure)

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

A reverse trial is a trial where the accused presents his evidence first before the
prosecution submits its evidence. It may be resorted to when the accused admits the
act or omission charged in the complaint or information but interposes a lawful or
affirmative defense. (Section 11[e], Rule 119, 2000 Rules of Criminal Procedure;
People v. Palabarica, G.R. No. 129285, May 7, 2001; Section 7, Speedy Trial Act)

In civil cases, the reverse trial may be resorted to by agreement of the parties or
when the defendant sets up an affirmative defense.
- VI -
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. Under the Rules on Criminal Procedure, it is the duty of officer executing the
warrant to arrest the accused and to deliver him to the nearest police station or jail
without unnecessary delay. This rule equally applies to situations of warrantless
arrest. (Section 3, Rule 113, Rules of Court)

(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%)

Yes. The police can take the unlicensed firearm even if it was not covered by the
search warrant following the judicial precedent that prohibited articles may be seized
for as long as the search warrant is valid. (People v. Cruz, G.R. No. 76728, August 30,
1988; People v. Mendi, G.R. Nos. 112978-81, February 19, 2001). If the warrant is
subsequently quashed, the police are not required to return the firearm because it is
unlicensed. It can, in fact, be ordered forfeited by the court. The search warrant does
not refer to the unlicensed firearm.
- VII -
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%)

Alternative Answer:
Jurisdiction of the court over a petition for the cancellation of a birth certificate
requires reasonable notice to all interested parties and also publication of the order
once a week for three consecutive weeks in a newspaper of general circulation.
(Section 4, Rule 108 Ceruila v. Delantar, G.R. No. 140305, December 9, 2005). In this
case, publication of the order is insufficient because R, a directly concerned party,
was not given reasonable notice, hence, denied due process. The lower court,
therefore, did not acquire jurisdiction. Accordingly, the petition for annulment of
judgment before the Court of Appeals should be granted.

Alternative Answer:
In the cases of Republic v. Kho, G.R. No. 170340, 29 June 2007; Alba v. Court of
Appeals, G.R. No. 164041, July 29, 2005; and Barco v. Court of Appeals, G.R. No.
120587, January 20, 2004, the court held that publication of the order of hearing
under Section4 of Rule 108 cured the failure to implead an indispensable party. The
court said that a petition for correction is an action in rem, an action against a thing
and not against a person. The decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding is validated essentially through
publication. Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an objection of any sort
against the right sought to be established. It is the publication of such notice that
brings in the whole world as a party in the case and vests the court with jurisdiction
to hear and decide it.

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 shall consider no evidence which has not been formally offered. The trial
court rendered judgment considering only the evidence offered by F. The offer is
necessary because it is the duty of the judge to rest his findings of fact and his
judgment only and strictly upon the evidence offered by the parties at the trial
(People v. Pecardal, G.R. No. 71381, November 24, 1986) and because the purpose for
which the evidence is offered must be specified. (Section 34, Rule 1, Rules of Court.)
However, there have been exceptional instances when the Court allowed exhibited
documents which were not offered by duly identified by testimony and incorporated
in the records of the case. (People v. Mate, L-34754, March 21, 1981).
- VIII -
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%)

The court should proceed to hear the case under the Rules of Summary Procedure.
Unlawful detainer refers to actual physical possession, not ownership. Defendant Y,
who is in actual possession, is the real party in interest. (Lao v. Lao, G.R. No. 149599,
May 11, 2005) It does not matter if her is a tenant of the deceased father of the
plaintiff, X, or that Xs father is the registered owner of the property. His term
expired. He merely continues to occupy the property by mere tolerance and he can be
evicted upon mere demand. (People v. Court of Appeals, G.R. No. 14364, June 3,
2004).

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%)

No. The law states that no will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. (Article 838, Civil Code;
Lopez v. Gonzaga, G.R. No. L-18788, January 30, 1964). This probate of the will is
mandatory. (Guevarra v. Guevarra, G.R. No.L-48840, December 29, 1943.)
- 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.

Yes, L can file a petition for mandamus, invoking the right to a speedy trial. (Section
3, Rule 65, 1997 Rules of Civil Procedure) The numerous and unreasonable
postponements displayed an abusive exercise of discretion. (Lumanlaw v. Peralta,
G.R. No. 164953, February 13, 2006)
- X -
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%)

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. (Section 5, Rule 7, 1991 Rules of Civil Procedure; Carpio v.
Rural Bank of Sto. Tomas [Batangas], Inc., 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%)

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 (5) years from entry 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. (Section 6, Rule 39, 1997 Rules of Civil
Procedure) which is within ten (10) years from the date of finality of the judgment.
(Macias v. Lim, G.R. No. 139284, June 4, 2004)
NOTHING FOLLOWS.