Rem Qnaw

Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.
com Page 1 of 66
ANSWERS TO BAR
EXAMINATION QUESTIONS
IN
REMEDIAL LAW
ARRANGED BY TOPIC
(1997 2006)
Edited and Arranged by:
version 1987-2003
Sii!"# U#i$%&'i()
C*%+% *, L"- B"(./ 2000
UPDATED BY:
Dondee
The RE-Take 2007
From he A!"#ER" T$ BAR E%A&'!AT'$!
(UE"T'$!" )* he UP +A# ,$&P+E% - Phi.i//ine
+a0 "1hoo.s Asso1iaion 2002
34.* 225 2007
Version 1997-2006 !dated "#
Dondee
Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page 2 of 66
F$R#ARD
This work is not intended for sale or commerce. This work is
freeware. It may be freely copied and distributed. It is
primarily intended for all those who desire to have a deeper
understanding of the issues touched by the Philippine Bar
Eaminations and its trend. It is specially intended for law
students from the provinces who! very often! are recipients of
deliberately distorted notes from other unscrupulous law schools
and students. "hare to others this work and you will be richly
rewarded by #od in heaven. It is also very good karma.
$e would like to seek the indulgence of the reader for some Bar
%uestions which are improperly classified under a topic and for
some topics which are improperly or ignorantly phrased! for the
authors are &ust Bar 'eviewees who have prepared this work while
reviewing for the Bar Eams under time constraints and within
their limited knowledge of the law. $e would like to seek the
reader(s indulgence for a lot of typographical errors in this work.
The Authors
)uly *+! *,,-
.pdated by /ondee
)uly **! *,,0
Dondee
TABLE O1 CONTENTS
GENERAL PRINCIPLES.....................................................................................................................8
Bar by Prior Judgment vs. Conclusiveness of Judgment (1997).................................................................8
Cause of action vs. Action (1997)........................................................................................................8
Civil Actions vs. Secial Proceedings (199!).........................................................................................8
Conciliation Proceedings" #atarungang Pambarangay vs. Pre$%rial Conference (1999)....................................8
&amily Courts Act ('((1)..................................................................................................................8
)nterlocutory *rder ('((+).................................................................................................................8
Judgment vs. *inion of t,e Court ('((+).............................................................................................8
Judicial Autonomy - )martiality ('((.)...............................................................................................8
#atarungang Pambarangay" *b/ective (1999)........................................................................................9
0iberal Construction" 1ules of Court (199!)..........................................................................................9
1emedial 0a2 in P,il. System of 3ov4t ('((+)........................................................................................9
1emedial 0a2 vs. Substantive 0a2 ('((+).............................................................................................9
1emedial 0a2" Concet ('((+)...........................................................................................................9
1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7).....................................................................................9
2URISDICTION...................................................................................................................................10
Jurisdiction (1997)........................................................................................................................10
Jurisdiction vs. 5enue ('((+)...........................................................................................................10
Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)................................................................................10
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()..........................................................................10
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()..........................................................................11
Jurisdiction" )ncaable of Pecuniary 9stimation ('((.)..........................................................................11
Jurisdiction" :%C ('((').................................................................................................................11
Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)................................................................................11
Jurisdiction" *mbudsman Case 8ecisions ('((+).................................................................................12
Jurisdiction" Probate ('((1).............................................................................................................12
Jurisdiction" 1%C ('((').................................................................................................................12
Jurisdiction" Subdivision 6omeo2ner ('((+).......................................................................................12
#atarungang Pambarangay" 0uon" 9;tent of Aut,ority" ('((1)...............................................................13
CI3IL PROCEDURE..........................................................................................................................13
Actions" Cause of Action vs. Action (1999)..........................................................................................13
Actions" Cause of Action" Joinder - Slitting (199!).............................................................................13
Actions" Cause of Action" Joinder of Action (1999)................................................................................13
Actions" Cause of Action" Joinder of Action ('((7)................................................................................13
Actions" Cause of Action" Slitting (1999)...........................................................................................14
Actions" Cause of Action" Slitting ('((7)...........................................................................................14
Actions" Cause of Actions" :otion to 8ismiss" bar by rior /udgment ('((')...............................................14
Actions" Counterclaim ('((')...........................................................................................................14
Actions" Counterclaim vs. Crossclaim (1999).......................................................................................15
Actions" Cross$Claims" %,ird Party Claims (1997).................................................................................15
Actions" 8erivative Suit vs. Class Suit ('((7).......................................................................................16
Actions" &iling" Civil Actions - Criminal Action ('((7)...........................................................................16
Actions" )ntervention" 1e<uisites ('((().............................................................................................16
Actions" 1eal Actions - Personal Actions ('((+)..................................................................................16
Actions" Survives 8eat, of t,e 8efendant ('((()..................................................................................16
Aeals" Period of Aeal" &res, Period 1ule ('((.).............................................................................17
Certiorari" :ode of Certiorari ('((+)..................................................................................................17
Certiorari" 1ule =7 vs. 1ule +7 (199!).................................................................................................17
Certiorari" 1ule =7 vs. 1ule +7 ('((7).................................................................................................18
Contemt" 8eat, of a Party" 9ffect (199!)............................................................................................18
8efault ('((()...............................................................................................................................18
8efault ('((1)...............................................................................................................................18
8efault" *rder of 8efault" 9ffects (1999)..............................................................................................18
8efault" 1emedies" Party 8eclared in 8efault (199!)..............................................................................19
Dondee
8efault" 1emedies" Party 8eclared in 8efault ('((+)..............................................................................19
8efault" 1emedies" Substantial Comliance ('((()...............................................................................20
8emurrer to 9vidence ('((1)............................................................................................................20
8emurrer to 9vidence" Civil Case vs. Criminal Case ('((.).....................................................................20
8iscovery" :odes of 8iscovery ('((()...............................................................................................20
8iscovery" :odes" Suboena 8uces %ecum (1997)...............................................................................21
8iscovery" Production and )nsection of 8ocuments ('((')....................................................................21
8ismissal" :otion to 8ismiss" 1es Judicata ('((()...............................................................................21
9vidence" Admissibility" P,otocoies ('((().......................................................................................22
&orum S,oing" 8efinition ('((+)....................................................................................................22
&orum S,oing" 9ffects" 0ac> of Certification ('((+)...........................................................................22
3en. Princiles" ?uestions of 0a2 vs. ?uestions of &act ('((=)...............................................................22
Judgment" Annulment of Judgment" 3rounds (199!).............................................................................22
Judgment" 9nforcement" 7$year eriod (1997)......................................................................................22
Judgment" 9nforcement" &oreign Judgment ('((7)...............................................................................22
Judgment" 9;ecution ending Aeal ('((').......................................................................................23
Judgment" )nterlocutory *rder" Partial Summary Judgments ('((=)..........................................................23
Judgment" Judgment on t,e Pleadings (1999)......................................................................................23
Judgment" Judgment on t,e Pleadings ('((7)......................................................................................24
Judgment" :andamus vs. ?uo @arranto ('((1)....................................................................................24
Judgment" Soundness" Attac,ment ('((')..........................................................................................24
Judgments" 9nforcement" 9;amination of 8efendant ('((')....................................................................24
Jurisdiction" 6abeas Corus" Custody of :inors ('((7).........................................................................25
Jurisdiction" 0ac> of Jurisdiction" Proer Action of t,e Court ('((=).........................................................25
Parties" 8eat, of a Party" 9ffect (199!)...............................................................................................25
Parties" 8eat, of a Party" 9ffect (1999)...............................................................................................25
Parties" 8eat, of a Party" 9ffect (1999)...............................................................................................26
Parties" %,ird Party Claim ('((().......................................................................................................26
Parties" %,ird$Party Claim ('((7)......................................................................................................26
Petition for Certiorari ('((()............................................................................................................26
Petition for 1elief - Action for Annulment ('((')..................................................................................27
Petition for 1elief" )n/unction ('((')...................................................................................................27
Pleadings" Amendment of Comlaint" By 0eave of Court ('((.)...............................................................27
Pleadings" Amendment of Comlaint" By 0eave of Court" Prescritive Period ('((().....................................27
Pleadings" Amendment of Comlaint" :atter of 1ig,t ('((7)...................................................................28
Pleadings" Amendment of Comlaint" %o Conform 2A 9vidence ('((=).......................................................28
Pleadings" Ans2er" 8efense" Secific 8enial ('((=)..............................................................................28
Pleadings" Certification Against &orum S,oing ('((()........................................................................29
Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('((=)..........................................................29
Pleadings" :otions" Bill of Particulars ('((.).......................................................................................29
Pleadings" 1ely" 9ffect of Bon$&iling of 1ely ('((()............................................................................29
Pre/udicial ?uestion" 9/ectment vs. Secific Performance ('((()..............................................................30
Pre$%rial" 1e<uirements ('((1).........................................................................................................30
Provisional 1emedies (1999)............................................................................................................30
Provisional 1emedies" Attac,ment (1999)...........................................................................................30
Provisional 1emedies" Attac,ment (1999)...........................................................................................30
Provisional 1emedies" Attac,ment ('((1)...........................................................................................30
Provisional 1emedies" Attac,ment ('((7)...........................................................................................30
Provisional 1emedies" Attac,ment vs. 3arnis,ment (1999).....................................................................31
Provisional 1emedies" )n/unction ('((1).............................................................................................31
Provisional 1emedies" )n/unction ('((.).............................................................................................31
Provisional 1emedies" )n/unctions" Ancillary 1emedy vs. :ain Action ('((+)..............................................31
Provisional 1emedies" )n/unctions" )ssuance 2Aout Bond ('((+)..............................................................31
Provisional 1emedies" )n/unctions" 1e<uisites ('((+)............................................................................31
Provisional 1emedies" 1eceivers,i ('((1).........................................................................................32
Provisional 1emedies" 1elevin (1999)...............................................................................................32
Provisional 1emedies" Suort Pendente 0ite (1999).............................................................................32
Provisional 1emedies" Suort Pendente 0ite ('((1).............................................................................32
Provisional 1emedies" %1* ('((1)....................................................................................................32
Provisional 1emedies" %1* ('((+)....................................................................................................33
Dondee
Provisional 1emedies" %1* vs. Status ?uo *rder ('((+)........................................................................33
Provisional 1emedies" %1*" CA Justice 8et. ('((+).............................................................................33
Provisional 1emedies" %1*" 8uration ('((+).......................................................................................33
1eglementary Period" Sulemental Pleadings ('((()...........................................................................33
1emedies" Aeal to SC" Aeals to CA ('((')....................................................................................33
1emedies" Aeal" 1%C to CA (1999).................................................................................................33
1emedies" Aeal" 1ule =7 vs. 1ule +7 (1999)......................................................................................34
1emedies" 5oid 8ecision" Proer 1emedy ('((=)..................................................................................34
Secial Civil Action" 9/ectment (1997)................................................................................................35
Secial Civil Action" 9/ectment (199!)................................................................................................35
Secial Civil Action" &oreclosure ('((.).............................................................................................35
Secial Civil Action" Petition for Certiorari ('((')..................................................................................35
Secial Civil Action" ?uo @arranto ('((1)...........................................................................................36
Secial Civil Actions" :andamus ('((+).............................................................................................36
Summons.....................................................................................................................................36
Summons (1999)...........................................................................................................................37
Summons" Substituted Service ('((=)................................................................................................37
Summons" 5alidity of Service" 9ffects ('((+).......................................................................................37
5enue" )mroer 5enue" Comulsory Counterclaim (199!)......................................................................38
5enue" Personal Actions (1997)........................................................................................................38
CRIMINAL PROCEDURE..................................................................................................................38
Ac<uittal" 9ffect ('((')...................................................................................................................38
Actions" BP''" Civil Action deemed included ('((1)..............................................................................39
Actions" BP''" 8emurrer to 9vidence ('((.).......................................................................................39
Actions" Commencement of an Action" 8ouble Jeoardy ('((=)...............................................................39
Actions" 8iscretionary Po2er of &iscal (1999)......................................................................................39
Actions" )n/unction (1999)...............................................................................................................39
Arrest" @arrantless Arrest" Preliminary )nvestigation ('((=)....................................................................40
Arrest" @arrantless Arrests - Searc,es (1997).....................................................................................40
Arrest" @arrantless Arrests - SeiCures ('((.)......................................................................................40
Arrest" @arrantless Arrests" *b/ection ('((()......................................................................................41
Bail ('((')...................................................................................................................................41
Bail" Aeal (199!)........................................................................................................................41
Bail" Alication" 5enue ('((').........................................................................................................41
Bail" &orms of Bail (1999)................................................................................................................41
Bail" :atter of 1ig,t (1999)..............................................................................................................41
Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999)...............................................................................41
Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+)...............................................................................42
Bail" @itness Posting Bail (1999)......................................................................................................42
Comlaint vs. )nformation (1999)......................................................................................................42
8emurrer to 9vidence" Contract of Carriage ('((=)...............................................................................42
8emurrer to 9vidence" 2Ao 0eave of Court (199!).................................................................................42
8emurrer to 9vidence" 2Ao 0eave of Court ('((1).................................................................................43
8emurrer to 9vidence" 2Ao 0eave of Court ('((=).................................................................................43
8ismissal" &ailure to Prosecute ('((.)...............................................................................................43
8ismissal" Provisional 8ismissal ('((.).............................................................................................43
8ouble Jeoardy ('((')..................................................................................................................44
8ouble Jeoardy" Dgrading" *riginal C,arges ('((7)...........................................................................44
9;tradition ('((=)..........................................................................................................................44
)nformation ('((1).........................................................................................................................45
)nformation" Amendment ('((1)........................................................................................................45
)nformation" Amendment" 8ouble Jeoardy" Bail ('((').........................................................................45
)nformation" Amendment" Suervening 9vents (1997)............................................................................45
)nformation" Bail ('((.)..................................................................................................................45
)nformation" :otion to ?uas, ('((()..................................................................................................46
)nformation" :otion to ?uas, ('((7)..................................................................................................46
)nformation" :otion to ?uas," 3rounds (199!).....................................................................................46
Judgment" Promulgation of Judgment (1997)......................................................................................46
Jurisdiction" Comle; Crimes ('((.).................................................................................................47
Dondee
Jurisdiction" &inality of a Judgment ('((7)..........................................................................................47
Parties" Prosecution of *ffenses ('((()..............................................................................................47
Plea of 3uilty" to a 0esser *ffense ('((')............................................................................................47
Pre/udicial ?uestion (1999)..............................................................................................................47
Pre/udicial ?uestion ('((()..............................................................................................................47
Pre/udicial ?uestion" Susension of Criminal Action (1999)....................................................................48
Pre$%rial Agreement ('((=)..............................................................................................................48
Pre$%rial" Criminal Case vs. Civil Case (1997).......................................................................................48
Provisional 8ismissal ('((')............................................................................................................48
1emedies" 5oid Judgment ('((=)......................................................................................................48
Searc, @arrant" :otion to ?uas, ('((7).............................................................................................49
%rial" %rial in Absentia" Automatic 1evie2 of Conviction (199!)................................................................49
5enue (1997)................................................................................................................................49
E3IDENCE.........................................................................................................................................50
Admissibility (199!).......................................................................................................................50
Admissibility ('((').......................................................................................................................50
Admissibility ('((=).......................................................................................................................50
Admissibility" Admission of 3uilt" 1e<uirements ('((+).........................................................................51
Admissibility" 8ocument" Bot raised in t,e Pleading ('((=).....................................................................51
Admissibility" 9lectronic 9vidence ('((.)...........................................................................................51
Admissibility" *b/ect or 1eal 9vidence (199=)......................................................................................51
Admissibility" *b/ections (1997).......................................................................................................51
Admissibility" *ffer to :arry" Circumstantial 9vidence (199!)..................................................................52
Admissibility" *ffer to Pay 9;enses (1997)........................................................................................52
Admissibility" Private 8ocument ('((7)..............................................................................................52
Admissibility" Proof of &iliation" Action of Partition ('((()......................................................................52
Admissibility" 1ules of 9vidence (1997)..............................................................................................53
Best 9vidence 1ule (1997)...............................................................................................................53
Burden of Proof vs. Burden of 9vidence ('((=)....................................................................................54
C,aracter 9vidence ('((')..............................................................................................................54
Confession" Affidavit of 1ecantation (199!).........................................................................................54
&acts" 0egislative &acts vs. Ad/udicative &acts ('((=)............................................................................54
6earsay 9vidence ('((').................................................................................................................54
6earsay 9vidence vs. *inion 9vidence ('((=)....................................................................................54
6earsay" 9;cetion" 8ead :an Statute ('((1)......................................................................................54
6earsay" 9;cetion" 8ying 8eclaration (199!)......................................................................................55
6earsay" 9;cetion" 1es 3estae" *inion of *rdinary @itness ('((7).......................................................55
6earsay" 9;cetions (1999).............................................................................................................55
6earsay" 9;cetions" 8ying 8eclaration (1999)....................................................................................55
6earsay" )nalicable ('((.)............................................................................................................55
Judicial Botice" 9vidence ('((7).......................................................................................................56
Judicial Botice" 9vidence" &oreign 0a2 (1997).....................................................................................56
:emorandum (199+)......................................................................................................................57
*ffer of 9vidence (1997).................................................................................................................57
*ffer of 9vidence" res inter alios acta ('((.)........................................................................................57
*ffer of 9vidence" %estimonial - 8ocumentary (199=)............................................................................57
*inion 1ule (199=).......................................................................................................................57
Parol 9vidence 1ule ('((1)..............................................................................................................58
Preonderance vs. Substantial 9vidence ('((.)...................................................................................58
Privilege Communication (199!).......................................................................................................58
Privilege Communication" :arital Privilege (19!9).................................................................................58
Privilege Communication" :arital Privilege ('((().................................................................................59
Privilege Communication" :arital Privilege ('((=).................................................................................59
Privilege Communication" :arital Privilege ('((+).................................................................................59
1emedy" 0ost 8ocuments" Secondary 9vidence (199')..........................................................................60
%estimony" )ndeendent 1elevant Statement (1999)...............................................................................60
@itness" Cometency of t,e @itness vs. Credibility of t,e @itness ('((=)..................................................60
@itness" 9;amination of a C,ild @itness" via 0ive$0in> %5 ('((7).............................................................60
@itness" 9;amination of @itnesses (1997)..........................................................................................60
Dondee
@itness" 9;amination of @itnesses ('((')..........................................................................................60
@itness" DtiliCed as State @itness" Procedure ('((+)............................................................................60
SPECIAL PROCEEDINGS................................................................................................................61
Cancellation or Correction" 9ntries Civil 1egistry ('((7)........................................................................61
9sc,eat Proceedings ('((')............................................................................................................61
9;tra$/udicial Settlement of 9state ('((7)............................................................................................61
6abeas Corus (199.)....................................................................................................................61
6abeas Corus (199!)....................................................................................................................61
6abeas Corus ('((.)....................................................................................................................62
)ntestate Proceedings ('((')............................................................................................................62
)ntestate Proceedings" 8ebts of t,e 9state ('((').................................................................................62
Judicial Settlement of 9state ('((7)...................................................................................................62
Probate of 0ost @ills (1999).............................................................................................................62
Probate of @ill ('((.).....................................................................................................................63
Probate of @ill ('((7).....................................................................................................................63
Probate of @ill ('((+).....................................................................................................................63
Probate of @ill" :andatory Bature ('((')............................................................................................63
Settlement of 9state ('((1)..............................................................................................................64
Settlement of 9state" Administrator (199!)..........................................................................................64
5enue" Secial Proceedings (1997)....................................................................................................64
SUMMARY PROCEDURE.................................................................................................................65
Pro,ibited Pleadings ('((=).............................................................................................................65
MISCELLANEOUS.............................................................................................................................65
Administrative Proceedings ('((7)....................................................................................................65
Congress" 0a2 9;roriating Proerty ('((+)......................................................................................65
1A .(19" :andatory Susension ('((1)..............................................................................................66
Dondee
Remedial Law Bar Examination Q & A (1997-2006)
GENERAL PRINCIPLES
Bar by Prior Judgment vs. Conclusiveness of Judgment
(1997)
Distinguish Bar by prior
judgment from conclusiveness of
judgment
SUGGESTED ANSWER4
Bar by prior-judgment is the doctrine of
res judicata, which bars a second action
when there is identity of parties, subject
matter and cause of action. (Sec. 49[b] of
former Rule 39; Sec, 47 [b] of new Rule 39).
Conclusiveness of judgment precludes
the relitigation of a particular issue in
another action between the same
parties on a diferent cause of action.
(Sec. 49 [c] of former Rule 39; sec. 47 [c] of
new Rule 39).
Cause of action vs. Action (1997)
Distinguish Cause of action from action
SUGGESTED ANSWER4
A CA!" #$ AC%&#' is an act or omission
of one party in violation of the legal
right or rights of the other (Maao Sugar
Central vs. Barrios, 79 Phil. 606; Sec. 2 of new
ule 2!, causing damage to another.
An AC%&#' is an ordinary suit in a court of
(ustice by which one party prosecutes
another for the enforcement or
protection of a right, or the
prevention or redress of a wrong.(Section 1
of former Rule 2).
Civil Actions vs. Secial Proceedings (199!)
Distinguish civil actions from special
proceedings. )*+,
SUGGESTED ANSWER4
A C&-&. AC%&#' is one by which a party
sues another for the enforcement or protection of
a right,
or the prevention or redress of a wrong.
while a !/"C&A.
/0#C""D&'1 is a remedy by which a party
see2s to establish a status, a right or a
particular fact. (Sec. 3[C]. Rule 1,1997 Rules of
Ciil !roce"ure.)
Conciliation Proceedings" #atarungang Pambarangay vs.
Pre$%rial Conference (1999)
3hat is the diference, if any, between
the conciliation proceedings under the
4atarungang /ambarangay .aw and the
negotiations for an amicable settlement
during the pre-trial conference under the 0ules
of Court5 67+8
SUGGESTED ANSWER4
%he diference between the conciliation
proceedings under the 4atarungang
/ambarangay .aw and the negotiations for an
amicable settlement during the pre-trial
conference under the 0ules of Court is that in
the former, lawyers are prohibited from
appearing for the parties. /arties must appear
in person only e9cept minors or incompetents
who may be assisted by their ne9t of 2in who are
not lawyers. (#ormerl$ Sec. 9,
1, 1997 Rules of Ciil
!roce"ure),
(See. 3[%],
Rule
by: sirdondee@gmail.com Page 8 of
66
!.&. 'o. 1()*; Sec. 41(, +oc%l
,oernment Co"e of 1991, R.-. 71.).)
'o such prohibition e9ists in the
pre-trial negotiations under the
0ules of Court.
&amily Courts Act ('((1)
a8:ow should the records of child
and family cases in the $amily
Courts or 0%C designated by the
!upreme Court to handle $amily
Court cases be treated and dealt
with5 6*+8
b8nder what conditions may the
identity of parties
in child and family cases be divulged
67+8
SUGGESTED ANSWER4
a8%he records of child and family
cases in the $amily Code to handle
$amily Court cases shall be dealt
with utmost con;dentiality. (Sec. 12,
#%mil$ Courts -ct of 1997)
b8 %he identity of parties in child
and family cases shall not be
divulged unless necessary and
with authority of the judge. (/".)
)nterlocutory *rder ('((+)
3hat is an interlocutory order5 67+8
SUGGESTED ANSWER4
An interlocutory order refers to
an order issued between the
commencement and the end of the
suit which is not a ;nal decision of
the whole controversy and leaves
something more to be done on its
merits
("allar#o et al. v. Peo$le, ".. %o.
&'20(0, )$ril 2&, 200*; +nvest,ents
+nc. v. Court of )$$eals, ".. %o.
600(6, -anuar. 27, &9/7 cite# in
0enso Phils, v. 1)C, ".. %o. 7*000,
2e3. 27, &9/7!.
Judgment vs. *inion of t,e Court ('((+)
3hat is the diference between a
judgment and an opinion of the
court5 67.<+8
SUGGESTED ANSWER4
%he judgment or fallo is the ;nal
disposition of the Court which is
re=ected 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 (4to.a v. )3raha,
Singson, )#,. Matter %o. 5-69&67*/,
Se$te,3er 26, &99'!.
An opinion of the court is the informal
e9pression of the views of the court and
cannot prevail against its ;nal order. %he
opinion of the court is contained in the
body of the decision that serves as a
guide or enlightenment to determine the
r%tio "eci"en"i of the decision. %he
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.
2eli7, ".. %o. 86'77, -une (0,
&9'7!.
Judicial Autonomy - )martiality ('((.)
Version 1997-2006 !dated "# Dondee
&n rendering a decision, should a
court ta2e into consideration the
possible efect of its verdict upon the
political stability and economic
welfare of the nation5 >+
SUGGESTED ANSWER4
'o, because a court is re?uired to
ta2e into consideration only the legal
issues and the evidence admitted in the
case. %he political stability and
economic welfare of the nation are
e9traneous to the case. %hey can have
persuasive in=uence 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 e?uity. :owever, in e9ceptional
cases the court may consider the
political stability and economic welfare of
the nation when these are capable of
being ta2en into judicial notice of and are
relevant to the case.
#atarungang Pambarangay" *b/ective (1999)
3hat is the object of the
4atarungang /ambarangay .aw5 67+8
SUGGESTED ANSWER4
%he object of the 4atarungang /ambarangay
.aw is to efect an amicable settlement of
disputes among family and barangay
members at the barangay level without
judicial recourse and conse?uently help
relieve the courts of doc2et congestion.
(!re%mble of !.&. 'o. 1()*, t0e former %n" t0e
1rst 2%t%run3%n3 !%mb%r%n3%$ +%w.)
0iberal Construction" 1ules of Court (199!)
:ow shall the 0ules of Court be
construed5 )7+,
SUGGESTED ANSWER4
%he 0ules of Court should be liberally
construed in order to promote their
objective of securing a just, speedy and
ine9pensive disposition of every action
and proceeding. (Sec. ., Rule 1 1997 Rules of
Ciil !roce"ure.)
ADDITIONAL ANSWER4
:owever, strict observance of the rules
is an imperative necessity when they
are considered indispensable to the
prevention of needless delays and to the
orderly and speedy dispatch of (udicial
business. ()lvero vs. -u#ge #e la osa, 76
Phil. '2/!
1emedial 0a2 in P,il. System of 3ov4t ('((+)
:ow are remedial laws implemented in
our system of government5 67+8
SUGGESTED ANSWER4
0emedial laws are implemented in
our system of government through the
pillars of the judicial system, including
the prosecutory service, our courts
of justice and ?uasi judicial agencies.
1emedial 0a2 vs. Substantive 0a2 ('((+)
Distinguish between substantive law
and remedial law. 67+8
SUGGESTED ANSWER4
!B!%A'%&-" .A3 is that part of the law
which creates, de;nes and regulates
rights concerning life, liberty, or property,
or the powers of agencies or
instrumentalities for the administration
of public
by: sirdondee@gmail.com Page 9 of 66
afairs. %his is distinguished from
0"@"D&A. .A3 which prescribes the
method of enforcing rights or obtaining
redress for their invasion (Bustos v. 8ucero,
".. %o. 86206/, 9cto3er 20, &9'/!.
1emedial 0a2" Concet ('((+)
3hat is the concept of remedial law5
67+8
SUGGESTED ANSWER4
%he concept of 0emedial .aw lies at the very
core of procedural due process, which
means a law which hears before it
condemns, which proceeds upon in?uiry
and renders judgment only after trial,
and contemplates an opportunity to be
heard before judgment is rendered
()l3ert v. :niversit. Pu3lishing,
".. %o. 86&9&&/, -anuar. (0, &96*!.
0emedial .aw is that branch of law
which prescribes the method of
enforcing the rights or obtaining
redress for their invasion (Bustos v.
8ucero, ".. %o.
86206/, 9cto3er 20, &9'/; 2irst 8e$anto
Cera,ics, +nc. v. C), ".. %o. &&0*7&,
March &0, &99'!.
1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7)
nder 0epublic Act 'o. A*<*, one may
be charged with and found guilty of
?uali;ed rape if he 2new on or before the
commission of the crime that he is
aBicted with :uman &mmuno-De;ciency
-irus 6:&-8CAc?uired &mmune De;ciency
!yndrome 6A&D!8 or any other se9ually
transmissible disease and the virus or
disease is transmitted to the victim. nder
!ection DE6a8 of 0epublic Act 'o. A<F>
the court may compel the accused to submit
himself to a blood test where blood
samples would be e9tracted from his
veins to determine whether he has :&-.
6A+8
a! )re the rights of the accuse# to
3e $resu,e# innocent of the cri,e
charge#, to $rivac., an# against
self6incri,ination violate# 3.
such co,$ulsor. testing; 47$lain.
SUGGESTED ANSWER4
'o. %he court may compel the accused
to submit himself to a blood test to
determine whether he has :&- under !ec.
DE6a8 of 0.A. 'o, AF<>. :is rights to be
presumed innocent of the crime
charged, to privacy and against self-
incrimination are not violated by such
compulsory testing. &n an action in which the
physical condition of a party is in
controversy, the court may order the
accused to submit to a physical
e9amination. (Sec. 1, Rule 2*, 1997 Rules of
Ciil !roce"ure) (+oo4 for cit%tion of l%test c%se,
in 2))4)
3! +f the result of such test shows
that he is <+= $ositive, an# the
$rosecution o>ers such result in
evi#ence to $rove the ?ualif.ing
circu,stance un#er the +nfor,ation for
?uali@e# ra$e, shoul# the court reAect
such result on the groun# that it is the
fruit of a $oisonous tree; 47$lain.
SUGGESTED ANSWER4
!ince the rights of the accused are not
violated because the compulsory testing
is authoriGed by the
Dondee
Remedial Law Bar Examination Q & A (1997-2006) law,
the result of the testing cannot be
considered to be the fruit of a poisonous
tree and can be ofered in evidence to
prove the ?ualifying circumstance under
the information for ?uali;ed rape under
0.A. 'o. A*<*. %he fruit, of the poisonous
tree doctrine refers to that rule of
evidence that e9cludes any evidence
which may have been derived or
ac?uired from a tainted or polluted
source. !uch evidence is
inadmissible for having emanated
from spurious origins. %he doctrine,
however, does not apply to the results
obtained pursuant to !ec. D, 0ule 7A,
DHHE 0ules of Civil /rocedure, as it does
not contemplate a search within the
moaning of the law. (Peo$le v.
Montilla, ".. %o. &2(/72, -anuar.
(0,&99/!
2URISDICTION
Jurisdiction (1997)
3hat courts have jurisdiction over
the following cases ;led in @etro
@anila5
a8 An action for speci;c performance
or, in the alternative, for
damages in the amount of
/DAF,FFF.FF
b8 An action for a writ of injunction.
c8 An action for replevin of a motorcycle
valued at /D<F,FFF.FF.
d8 An action for interpleader to
determine who between the
defendants is entitled to receive the
amount of /DHF,FFF.FF from the
plaintif.
e8 A petition for the probate of a will
involving an
estate valued at /7FF,FFF.FF.
SUGGESTED ANSWER4
6a8 An action for speci;c performance
or, in the alternative, for damages in the
amount of DAF,FFF.FF falls within the
jurisdiction of @etropolitan %rial Courts
in @etro @anila. Although an action for
speci;c performance is not capable of
pecuniary estimation, since the alternative
demand for damages is capable of
pecuniary estimation, it is within the
jurisdiction of the @etropolitan %rial Courts
in @etro @anila. (Sec. (( of BP &29 as
a,en#e# 3. ) %o. 769&B
CruC us. 5an, /7 Phil. 627D.
6b8 An action for injunction is not
capable of pecuniary estimation and
hence falls within the jurisdiction of the
0%Cs.
6c8 An action for replevin of a motorcycle
valued at D<F,FFF.FF falls within the
jurisdiction of the
@etropolitan %rial Courts in @etro @anila
(Sec. (( of
BP &29. as a,en#e# 3. ) %o. 769&!.
6d8 An action for interpleader to determine
who between the defendants is entitled to
receive the amount of /DHF,FFF.FF falls within
the jurisdiction of the @etropolitan %rial
Courts in @etro @anila.
(MaEati 0ev Cor$. v. 5anAuatco 27 SC) '0&!
66
6e8 A petition for the probate of
a will involving an estate valued
at 7FF.FFF.FF falls within the
(urisdiction of the @etropolitan %rial
Courts in @etro @anila (Sec. &9F'D
of BP &29, as a,en#e#!.
ADDITIONAL ANSWER4
6b8 An application for a writ of
preliminary injunction may be
granted by a @unicipal Court in an
action of forcible entry and
unlawful detainer. (Sec.(( of BP &29;
0a. vs. 5C of Ga,3oanga, &9&
SC)6&0.
Jurisdiction vs. 5enue ('((+)
Distinguish jurisdiction from venue5
67+8
SUGGESTED ANSWER4
(0&!D&C%&#' treats of the power of
the Court to decide a case on the
merits, while -"'" refers to the
place where the suit may be ;led.
&n criminal actions, however, venue
is jurisdictional. (urisdiction is a
matter of substantive lawI venue, of
procedural law. (urisdiction may be not
be conferred by consent through
waiver upon a court, but venue may
be waived, e9cept in criminal cases
(%ocu, et al. v. 5an,
".. %o. &'*022, Se$te,3er 2(,
200*; Santos +++ v. %orthwest
)irlines, ".. %o. &0&*(/, -une 2(,
&992!.
Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+)
@ar2 ;led with the Bureau of
&nternal 0evenue a complaint for
refund of ta9es paid, but it was
not acted upon. !o, he ;led a
similar complaint with the Court of %a9
Appeals raBed to one of its Divisions.
@ar2Js complaint was dismissed. %hus,
he ;led with the Court of Appeals a
petition for certiorari under 0ule K<.
Does the Court of Appeals have
jurisdiction over @ar2Js petition5
67.<+8
SUGGESTED ANSWER4
'o. %he procedure is governed by !ec.
DD of 0. A. H7A7. Decisions of a division
of the Court of %a9 Appeals must be
appealed to the Court of %a9 Appeals
en banc. $urther, the C%A now has the same
ran2 as the Court of Appeals and is no
longer considered a ?uasi-judicial
agency. &t is li2ewise provided in the
said law that the decisions of the C%A
en bane are cogniGable by the !upreme
Court under 0ule >< of the DHHE 0ules of
Civil /rocedure.
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()
A brings an action in the @%C of @anila
against B for the annulment of an
e9trajudicial foreclosure sale of real
property with an assessed value of
/<F,FFF.FF located in .aguna. %he
complaint alleged prematurity of the sale
for the reason that the mortgage was not
yet due. B timely moved to dismiss the
case on the ground that the action should
have been brought in the 0%C of .aguna.
Decide with reason. 6*+8
SUGGESTED ANSWER4
%he motion should be granted. %he @%C of
@anila has no jurisdiction because the
action for the annulment of the
e9trajudicial foreclosure is not capable
of pecuniary estimation and is
therefore
Dondee
under the jurisdiction of the 0%Cs.
(ussell v. =estil,
(0' SC) 7(/,F&999D!.
:owever, the action for annulment is a
personal action and the venue depends
on the residence of either A or B.
:ence, it should be brought in the 0%C
of the place where either of the parties
resides.
Jurisdiction" )ncaable of Pecuniary 9stimation ('((()
A ;les an action in the @unicipal %rial
Court against B, the natural son of ALs
father, for the partition of a parcel of
land located in %aytay, 0iGal with
an assessed value of /7F,FFF.FF. B
moves to dismiss the action on the
ground that the case should have been
brought in the 0%C because the action is
one that is not capable of pecuniary
estimation as it involves primarily a
determination of hereditary rights and
not merely the bare right to real
property. 0esolve the motion. 67+8
SUGGESTED ANSWER4
%he motion should be granted. %he
action for partition depends on a
determination of the hereditary rights of
A and B, which is not capable of pecuniary
estimation. :ence, even though the
assessed value of the land is
/7F,FFF.FF, the @unicipal %rial Court has
no jurisdiction. (ussell v.
=estil, su$ra!
Jurisdiction" )ncaable of Pecuniary 9stimation ('((.)
A ;led with the @%C of @anila an action for
speci;c performance against B, a resident of
MueGon City, to compel the latter to
e9ecute a deed of conveyance covering a
parcel of land situated in MueGon City
having an assessed value of pDH,FFF.FF.
B received the summons and a copy of
the Complaint on F7 (anuary 7FF*. #n DF
(anuary 7FF*, B ;led a @otion to Dismiss
the Complaint on the ground of lac2 of
jurisdiction contending that the subject
matter of the suit was incapable of
pecuniary estimation. %he court denied the
motion. &n due time, B ;led with the 0%C a
/etition for Certiorari praying that the
said #rder be set aside because the @%C
had no jurisdiction over the case. K+
#n D* $ebruary 7FF*, A ;led with the
@%C a motion to declare B in default.
%he motion was opposed by B on the
ground that his /etition for Certiorari
was still pending.
6a8 3as the denial of the @otion to
Dismiss the Complaint correct5
6b80esolve the @otion to Declare the
Defendant in
Default.
SUGGESTED ANSWER4
6a8 %he denial of the @otion to Dismiss
the Complaint was not correct. Although the
assessed value of the parcel of land involved was
/DH,FFF.FF, within the jurisdiction of the
@%C of @anila, the action ;led by A for
!peci;c /erformance against B to compel the
latter to e9ecute a Deed of Conveyance of said
parcel of land was not capable of pecuniary
F2lores v. Mallare6
Phili$$s,
(Rule 3,
sec. .).
estimation and, therefore, the action was
within the
jurisdiction of 0%C. (ussel v. =estil,
(0' SC) 7(/
F&999D; Co$ioso v. Co$ioso, "..
%o. &'92'(, 9cto3er 2/,2002;
Ca3utihan v. 8an#center
Construction, (/( SC) (*(
F2002D!.
ALTERNATI3E ANSWER4
&f the action afects title to or
possession of real property then
it is a real action and jurisdiction
is determined by the assessed value
of the property. &t is within the
jurisdiction therefore of the
@etropolitan %rial Court.
SUGGESTED ANSWER4
6b8 %he Court could declare B in
default because B did not obtain a
writ of preliminary injunction or a
temporary restraining order
from the 0%C prohibiting the
judge from proceeding in the case
during the pendency of the petition
for certiorari.
(Sec. 7 of ule 6*; 0iaC v. 0iaC, ((&
SC) (02 F2002D.
ALTERNATI3E ANSWER4
%he Court should not declare B in
default inasmuch as the jurisdiction
of @%C was put in issue in the
/etition $or Certiorari ;led with the
0%C. %he @%C should defer further
proceedings pending the result of
such petition. (4ternal "ar#ens
Me,orial ParE
Cor$oration v. Court of )$$eals, &6'
SC) '2& F&9//D!.
Jurisdiction" :%C ('((')
/ sued A and B in one complaint in the
0%C-@anila, the cause of action
against A being on an overdue
promissory note for /*FF,FFF.FF and
that against B being on an alleged
balance of /*FF,FFF.FF on the
purchase price of goods sold on
credit. Does the 0%C-@anila have
jurisdiction over the case5 "9plain. 6*+8
SUGGESTED ANSWER4
'o, the 0%C-@anila 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
?uestion of law or fact common to both.
:ence, separate complaints will have to be
;les and they would fall under the
jurisdiction of the
@etropolitan %rial Court.
&'' SC) (77 (&9/6!D.
Jurisdiction" *ffice of t,e Solicitor 3eneral ('((+)
&n DHHK, Congress passed 0epublic Act
'o. ADAH, otherwise 2nown as the -oterJs
0egistration Act of DHHK, providing for
computeriGation of elections. /ursuant
thereto, the C#@"."C approved the
-oterJs 0egistration and &denti;cation
!ystem 6-0&!8 /roject. &t issued invitations
to pre-?ualify and bid for the project. After
the public bidding, $oto2ina was declared
the winning bidder with a bid of /K billion
and was issued a 'otice of Award. But
C#@"."C Chairman 1ener 1o objected
to the award on the ground that under
the Appropriations Act, the budget for the
C#@"."CJs moderniGation is only /D
Dondee
billion. :e announced to the public
that the -0&! project has been set
aside. %wo Commissioners sided with
Chairman 1o, but the majority voted to
uphold the contract.
@eanwhile, $oto2ina ;led with the 0%C a
petition for mandamus compel the
C#@"."C to implement the contract. %he
#fice of the !olicitor 1eneral 6#!18,
representing Chairman 1o, opposed the
petition on the ground that mandamus does
not lie to enforce contractual
obligations. During the proceedings,
the majority Commissioners ;led a
manifestation that Chairman 1o was not
authoriGed by the C#@"."C "n Banc to
oppose the petition.
Ma. the 9S" re$resent Chair,an
"o 3efore the 5C notwithstan#ing
that his $osition is contrar. to that
of the ,aAorit.; (*H!
SUGGESTED ANSWER4
Nes, the #!1 may represent the
C#@"."C Chair- man before the
0%C notwithstanding that his
position is contrary to that of a
majority of the Commission members
in the C#@"."C because the #!1 is
an independent oficeI itJs hands are not
shac2led to the cause of its client
agency. %he primordial concern of the
#!1 is to see to it that the best interest
of the government is upheld (C9M484C
v. Iu.ano6Pa#illa, Se$te,3er &/, 2002!.
Jurisdiction" *mbudsman Case 8ecisions ('((+)
Does the Court of Appeals have
jurisdiction to review the Decisions
in criminal and administrative cases
of the #mbudsman5 67.<+8
SUGGESTED ANSWER4
%he !upreme Court has e9clusive
appellate jurisdiction over decisions of
the #mbudsman in criminal cases (Sec. 14,
R.-. .77)). &n administrative and disciplinary
cases, appeals from the #mbudsman
must be ta2en to the Court of Appeals under
0ule >*
(8anting v. 9,3u#s,an, ".. %o. &'&'26,
Ma. 6, 200*; 2a3ian v. 0esierto, ".. %o.
&297'2, Se$te,3er &6, &99/; Sec. &', ).
6770!.
Jurisdiction" Probate ('((1)
(osefa ;led in the @unicipal Circuit %rial
Court of Alicia and @abini, a petition for
the probate of the will of her husband,
@artin, who died in the @unicipality of
Alicia, the residence of the spouses. %he
probable value of the estate which consisted
mainly of a house and lot was placed at
/H<,FFF.FF and in the petition for the
allowance of the will, attorneyLs fees in the
amount of /DF,FFF.FF, litigation e9penses in the
amount of /<,FFF.FF and costs were included.
/edro, the ne9t of 2in of @artin, ;led 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
/DFF,FFF.FF, the ma9imum jurisdictional
amount for municipal circuit trial courts.
%he court overruled the opposition and
proceeded to hear the case.
3as the
municipal
circu
it
tria
l
court correct in
its
ruling5 3hy5 6<+8
SUGGESTED ANSWER4
Nes, the @unicipal Circuit %rial Court
was correct in proceeding to hear
the case. &t has e9clusive
jurisdiction in all matters of probate,
both testate and intestate, where the
value of the estate does not e9ceed
/DFF,FFF.FF 6now /7FF,FFF.FF8. %he
value in this case of /H<,FFF.FF is
within its jurisdiction. &n determining
the jurisdictional amount, e9cluded
are attorneyLs fees, litigation e9penses
and costsI these are considered only
for determining the ;ling fees.
(5.!.5l3. 129, Sec. 33, %s %men"e")
Jurisdiction" 1%C ('((')
/ sued A in the 0%C-@anila to
recover the following sumsO 6D8
/7FF,FFF.FF on an overdue
promissory note, 678 /AF,FFF.FF
on the purchase price of a
computer, 6*8 /D<F,FFF.FF for
damages to his car and 6>8
/DFF,FFF.FF for attorneyLs fees
and litigation e9penses. Can A
move to dismiss the case on the
ground that the court has no
jurisdiction over the subject
matter5 "9plain. 67+8
SUGGESTED ANSWER4
'o, because the 0%C-@anila has
jurisdiction over the subject matter.
/ 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. ((")]. %he
aggregate amount claimed is /><F,FFF.FF,
e9clusive of the amount of /DFF,FFF.FF
for attorneyLs fees and e9penses of
litigation. :ence, the 0%C-@anila has
jurisdiction.
Jurisdiction" Subdivision 6omeo2ner ('((+)
3hat court has jurisdiction over an
action for speci;c performance ;led
by a subdivision homeowner against
a subdivision developer5 Choose the
correct answer. "9plain.
D. %he :ousing and .and se
0egulatory Board
7. %he !ecurities and "9change
Commission
*. %he 0egional %rial Court
>. %he Commercial Court or the
0egional %rial Court designated by
the !upreme Court to hear
and decide Pcommercial cases.P
SUGGESTED ANSWER4
An action for speci;c performance by a
subdivision homeowner against a
subdivision developer is within the
jurisdiction of the :ousing and .and
se 0egulatory Board. !ec. D of /.D. D*>>
provides that the :.0B has jurisdiction
over cases involving speci;c performance
of contractual and statutory obligations
;led by buyers of subdivision lots and
condominium units against the owner,
developer, dealer, bro2er or salesman
(Manila BanEers 8ife
+nsurance Cor$. v. 4##. %g JoE Kei, "..
%o. &(979&, 0ece,3er &2, 200(; JaEilala
v. 2araon, ".. %o. &'(2((, 9cto3er &/,
200'; Sec. &, P.0. &(''!.
Dondee
#atarungang Pambarangay" 0uon" 9;tent of Aut,ority"
('((1)
An amicable settlement was signed
before a .upon %agapamayapa on
(anuary *, 7FFD. #n (uly K, 7FFD, the
prevailing party as2ed the .upon to
e9ecute the amicable settlement
because of the non-compliance by the
other party of the terms of the
agreement. %he .upon concerned
refused to e9ecute the
settlementCagreement.
a8 &s the .upon correct in refusing
to e9ecute the
settlementCagreement5 6*+8
b8 3hat should be the course of
action of the
prevailing party in such a case5 67+8
SUGGESTED ANSWER4
a8 Nes, the .upon is correct in refusing
to e9ecute the settlementCagreement
because the e9ecution sought is
already beyond the period of si9 months
from the date of the settlement
within which the .upon is authoriGed
to e9ecute. (Sec. 417, +oc%l ,oernment
Co"e of 1991)
b8 After the si9-month period, the
prevailing party should move to e9ecute the
settlementCagreement in the appropriate
city or municipal trial court. 6&d.8
CI3IL PROCEDURE
Actions" Cause of Action vs. Action (1999)
Distinguish action from cause of action.
67+8
SUGGESTED ANSWER4
An AC%&#' is one by which a party
sues another for the enforcement or
protection of a right, or the prevention or
redress of a wrong. (Sec. 3(-), Rule )
A CA!" #$ AC%&#' is the act or
omission by
which a party violates a right of another.
)n action ,ust 3e 3ase#
on a cause
of action. (Sec. 1, Rule 2 of t0e 1997 Rules)
Actions" Cause of Action" Joinder - Slitting (199!)
1ive the efects of the followingO
D. !plitting a single cause of actionO and
6*+Q
7. 'on-joinder of a necessary
party. )7+,
SUGGESTED ANSWER4
D. %he efect of splitting a single cause
of action is found in the rule as followsO
&f two or more suits are instituted on
the basis of the same cause of
action, the ;ling of one or a judgment
on the merits in any one is available as
a ground for the dismissal of the others.
(Sec. 4 of Rule 2)
7. %he efect of the non-joinder of a
necessary party may be stated as followsO
%he court may order the inclusion of an
omitted necessary party if jurisdiction
over his person may be obtained. %he
failure to comply with the order for his
inclusion without justi;able cause to a
waiver of the claim against such party.
%he court may proceed with the action
but the judgment rendered shall be
without
of t0e 1997
Rules)
(Sec. 2,
Rule 2
(Sec. (, Rule 2 of
t0e 1997
prejudice to the rights of each necessary
party. (Sec. 9 of Rule 3)
Actions" Cause of Action" Joinder of Action (1999)
a8 3hat is the rule on joinder of causes
of action5 67+8
b8 A secured two loans from B5
one for /<FF,FFF.FF and the other
for /D,FFF,FFF.FF, payable on diferent
dates. Both have fallen due. &s B obliged
to ;le only one complaint against A
for the recovery of both loans5
"9plain. 67+8
SUGGESTED ANSWER4
a. %he rule on (#&'D"0 #$
CA!"! #$ AC%&#' is that a party
may in one pleading assert, in the
alternative or otherwise join as many
causes of action as he may have
against an opposing party, provided
that the rule on joinder of parties
is complied withI
D., the joinder shall not include
special civil actions or actions
governed by special rules, but
may include causes of action
pertaining to diferent venues or
jurisdictions provided one
cause of action falls within
the jurisdiction of a 0%C and
venue lies thereinI and
7., the aggregate amount claimed
shall be the test of jurisdiction
where the claims in all the causes
of action are principally for
the
recovery of money.
Rules)
b. 'o. (oinder is only permissive
since the loans are separate loans
which may be governed by the
diferent terms and conditions. %he
two loans give rise to two separate
causes of action and may be the basis of
two separate complaints.
Actions" Cause of Action" Joinder of Action ('((7)
/erry is a resident of @anila, while
0ic2y and @arvin are residents of
Batangas City. %hey are the co-
owners of a parcel of residential land
located in /asay City with an assessed
value of /DFF,FFF.FF. /erry borrowed
/DFF,FFF.FF from 0ic2y which
he promised to pay on or before
December D, 7FF>. :owever, /erry
failed to pay his loan. /erry also
rejected 0ic2y and @arvinJs proposal to
partition the property. 0ic2y ;led a
complaint against /erry and @arvin in
the 0%C of /asay City for the partition of
the property. :e also incorporated in
his complaint his action against /erry
for the collection of the latterJs
/DFF,FFF.FF loan, plus interests and
attorneyJs fees.
!tate with reasons whether it was
proper for 0ic2y to join his causes of
action in his complaint for partition
against /erry and @arvin in the 0%C
of /asay City. 6<+8
SUGGESTED ANSWER4
&t was not proper for 0ic2y to join his
causes of action against /erry in his
complaint for partition against /erry
and @arvin. %he causes of action may be
between the same parties, 0ic2y and
/erry, with respect to the loan but not
with respect to the partition which
includes @arvin. %he joinder is
between a partition and a sum of
money, but /A0%&%&#' is a special civil
action under 0ule KH, which cannot be
joined with other causes of action. (See.
([b], Rule 2,) Also, the causes of action
pertain to diferent venues and
jurisdictions. %he case for a sum of money
pertains to the municipal court and cannot
be ;led in /asay City because the
plaintif is from @anila while 0ic2y and
@arvin are from Batangas
Cit$. (Sec. (, Rule 2,)
Actions" Cause of Action" Slitting (1999)
a8 3hat is the rule against splitting a
cause of action and its efect on
the respective rights of the parties
for failure to comply with the same5
67+8
b8 A purchased a lot from B for
/l,<FF,FFF.FF. :e gave a down
payment of /<FF,FFF, signed a
promissory note payable thirty days
after date, and as a security for
the settlement of the obligation,
mortgaged the same lot to B. 3hen
the note fell due and A failed to
pay, B commenced suit to recover
from A the balance of /D,FFF,FFF.FF.
After securing a favorable judgment on
his claim, B brought another action
against A before the same court to
foreclose the mortgage. A now ;les a
motion to dismiss the second action
on the ground of bar by prior
judgment. 0ule on the motion.
67+8
SUGGESTED ANSWER4
a. %he rule against splitting a cause of
action and its efect are that if two or
more suits are instituted on the basis of
the same cause of action, the ;ling of
one or a judgment upon the merits in
any one is available as a ground for the
dismissal of the others. (Sec. 4, Rule 2)
b. %he motion to dismiss should be
granted. 3hen B commenced suit to
collect on the promissory note, he
waived his right to foreclose the mortgage.
B split his cause of action.
Actions" Cause of Action" Slitting ('((7)
0aphael, a warehouseman, ;led a complaint
against - Corporation, R Corporation and
N Corporation to compel them to
interplead. :e alleged therein that the
three corporations claimed title and right
of possession over the goods deposited in
his warehouse and that he was uncertain
which of them was entitled to the goods.
After due proceedings, judgment was
rendered by the court declaring that R
Corporation was entitled to the goods. %he
decision became ;nal and e9ecutory.
0aphael ;led a complaint against R
Corporation for
the payment of /DFF,FFF.FF for storage
charges and
other advances for the goods. R
Corporation ;led a
motion to dismiss the complaint on
the ground of res judicata. R
Corporation alleged that 0aphael
should have incorporated in his
complaint for interpleader his
claim for storage fees and advances
and that for his failure he was
barred from interposing his claim.
0aphael replied that he could
not have claimed storage fees
and other advances in his complaint
for interpleader because he was not
yet certain as to who was liable
therefor. 0esolve the motion with
reasons. 6>+8
SUGGESTED ANSWER4
%he motion to dismiss should be
granted. 0aphael should have
incorporated in his complaint for
interpleader his claim for storage fees
and advances, the amounts of which
were obviously determinable at the
time of the ;ling of the complaint. %hey
are part of 0aphaelJs cause of action
which he may not be split. :ence,
when the warehouseman as2s the court
to ascertain who among the defendants
are entitled to the goods, he also has
the right to as2 who should pay for
the storage fees and other related
e9penses. %he ;ling of the interpleader
is available as a ground for dismissal
of the second case. (Sec. 4, Rule 2,)
&t is a2in to a compulsory counterclaim
which, if not set up, shall be barred. (Sec.
2, ule 9, ; )rreCa v. 0iaC, "..
%o. &((&&(, )ugust (0, 200&!
Actions" Cause of Actions" :otion to 8ismiss" bar
by rior /udgment ('((')
0olando ;led 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 0olando failed to prove the
psychological incapacity of his wife. %he
judgment having become ;nal, 0olando ;led
another petition, this time on the ground
that his marriage to Carmela had been
celebrated without a license. &s the second
action barred by the judgment in the
;rst5 3hy5 67+8
SUGGESTED ANSWER4
'o, the second action is not barred by the
judgment in the ;rst because they are
diferent causes of action. %he ;rst is for
annulment of marriage on the ground of
psychological incapacity under Article
*K of the $amily Code, while the
second is for declaration of nullity of
the marriage in view of the absence of
a basic re?uirement, which is a marriage
license. )-rts, 9 6 3((3), #%mil$ Co"e]. %hey
are diferent causes of action because the
evidence re?uired to prove them are not
the same. FPagsisihan v. Court of )$$eals,
9* SC) *'0
(&9/0! an# other casesD.
Actions" Counterclaim ('((')
Dondee
%he plaintif sued the defendant in the
0%C for damages allegedly caused by the
latterLs encroachment on the plaintifLs lot.
&n his answer, the defendant denied the
plaintifLs claim and alleged that it was the
plaintif who in fact had encroached
on his 6defendantLs8 land. Accordingly,
the defendant counterclaimed against
the plaintif for damages resulting from
the alleged encroachment on his lot. %he
plaintif ;led an e9 parte motion for
e9tension of time to answer the defendantLs
counterclaim, but the court denied the
motion on the ground that it should have
been set for hearing. #n the
defendantLs motion, therefore, the court
declared the plaintif in default on the
counterclaim. 3as the plaintif validly
declared in default5 3hy5 6<+8
SUGGESTED ANSWER4
'o, the plaintif was not validly declared
in default. A motion for e9tension of
time to ;le an answer may be ;led e9
parte and need not be set for
hearing.
F),ante vs. Sunga, 6' SC) &92 (&97*!D.
ALTERNATI3E ANSWER4
%he general rule is that a counterclaim
must be
answered within ten 6DF8 days from
service.
:owever, a counterclaim that
raises issues
which are deemed automatically joined
by the allegations of the Complaint need
not be answered.
F"oAo v. "o.ala, (* SC) **7 (&970!D.
&n this case, the defendantLs
counterclaim is a compulsory
counterclaim which arises out or
is connected with the transaction
and occurrence constituting the
subject matter of the plaintifLs claim. &t
raises the same issue of who encroached
on whose land. :ence, there was
no need to answer the
counterclaim.
Actions" Counterclaim vs. Crossclaim (1999)
a8 3hat is a counterclaim5 67+8
b8 Distinguish a counterclaim from a
crossclaim. 67+8
c8 A, who is engaged in tile installation
business, was sued by "" &ndustries for
breach of contract for installing diferent
marble tiles in its ofices as provided in
their contract. 3ithout ;ling any
motion to dismiss, A ;led its
Answer with Counterclaim theoriGing
that "" &ndustries has no legal
capacity to sue because it is not a
duly registered corporation. By way of
counterclaim, A as2ed for moral and
actual damages as her business
depleted as a result of the
withdrawal and cancellation by her
clients of their contracts due to the
;ling of the case. %he case was
dismissed after the trial court found
that "" &ndustries is not a registered
corporation and therefore has no legal
capacity to sue. :owever, it set a date
for the reception of evidence on AJs
counterclaim. "" &ndustries opposed
on the ground that the counterclaim
could no longer be prosecuted in view of
the dismissal of the main
sec.
4).
(Rule
11,
case. &s the stand of "" &ndustries
sustainable5 "9plain. )7+,
SUGGESTED ANSWER4
%) A C#'%"0C.A&@ is any claim
which a defending party may
have against an opposing party.
(Sec. ., Rule .)
b) A counterclaim is distinguished from
a C0#!!- C.A&@ in that a cross-
claim is any claim by one party
against a co-party arising out
of the transaction or occurrence
that is the subject matter either
of the original action or of a
counterclaim therein. A
counterclaim is against an
opposing party while a cross-claim is
against a co-party. (Sec. *, Rule .)
c) 'o, because if no motion to dismiss
has been ;led, any of the grounds
for dismissal provided in the 0ules
may be pleaded as an afirmative
defense in the answer which may
include a counterclaim. %his is what
A did by ;ling an Answer alleging the
lac2 of legal capacity of "" &ndustries
to sue because it is not a duly
registered corporation with a
counterclaim for damages. %he
dismissal of the complaint on this
ground is without prejudice to the
prosecution of the counterclaim in the
same action because it is a compulsory
counterclaim. (Sec. . of Rule 1..)
Actions" Cross$Claims" %,ird Party Claims (1997)
B and C borrowed />FF,FFF.FF from
A. %he promissory note was e9ecuted by B
and C in a (oint and several capacity. B, who
received the money from A, gave C
/7FF,FFF.FF. C, in turn, loaned
/DFF,FFF.FF out of the /7FF,FFF.FF he
received to D.
a8 &n an action ;led by A against B and
C with the 0%C of MueGon City,
can B ;le a cross-claim against C
for the amount of /7FF,FFF.FF5
b8 Can C ;le a third party complaint
against D for
the amount of / DFF,FFF.FF5
SUGGESTED ANSWER4
6a8 Nes. B can ;le a cross-claim against
C for the amount of 7FF,FFF.FF given to C.
A cross-claim is a claim ;led by one party
against a co-party arising out of the
transaction or occurrence that is the
subject matter of the original action or a
counterclaim therein and may include a
claim that the party against whom it is
asserted is or may be liable to the cross-
claimant for all or part of a claim
asserted against the cross- claimant. (Sec.
* Rule .)
6b8 'o, C cannot ;le a third-party complaint
against D because the loan of /DFF,FFF
has no connection with the opponentJs
claim. C could have loaned the
money out of other funds in his
possession.
ALTERNATI3E ANSWER4
Nes, C can ;le a third-party
complaint against D because the loan
of DFF,FFF.FF was ta2en out of the
/7FF,FFF received from B and hence the
loan see2s
Dondee
contribution in respect to his opponentJs
claim. (Sec. 11 of Rule .)
Actions" 8erivative Suit vs. Class Suit ('((7)
Distinguish a derivative suit from a class
suit.
SUGGESTED ANSWER4
A D"0&-A%&-" !&% is a suit in e?uity that is
;led by a minority shareholder in behalf of a
corporation to redress wrongs committed
against it, for which the directors refuse to
sue, the real party in interest being
the corporation itself
2e3ruar. &9, 200&!, while a C.A!!
!&% is ;led regarding a controversy
of common or general interest in
behalf of many persons so numerous that
it is impracticable to join all as
parties, a number which the court ;nds
suficiently representative who
may sue or defend for the bene;t of all.
&t is worth noting that a derivative suit is
a representative suit, just li2e a class
suit.
Actions" &iling" Civil Actions - Criminal Action ('((7)
3hile cruising on a highway, a
ta9icab driven by @ans hit an
electric post. As a result thereof, its
passenger, (ovy, sufered serious
injuries. @ans was subse?uently
charged before the @unicipal %rial
Court with rec2less imprudence
resulting in serious physical injuries.
%hereafter, (ovy ;led a civil action
against .ourdes, the owner of the ta9icab,
for breach of contract, and @ans for ?uasi-
delict. .ourdes and @ans ;led a motion
to dismiss the civil action on the ground
of litis pendentia, that is, the pendency of
the civil action impliedly instituted in the
criminal action for rec2less imprudence
resulting in serious physical injuries.
0esolve the motion with reasons. 6>+8
SUGGESTED ANSWER4
%he motion to dismiss should be denied. %he
action for breach of contract against the
ta9icab owner cannot be barred by the
criminal action against the ta9icab driver,
although the ta9icab owner can be held
subsidiarily liable in the criminal case, if the
driver is insolvent. #n the other hand, the
civil action for ?uasi-delict against the driver is
an independent civil action under Article ** of
the Civil Code and !ec. *, 0ule DDD of the
0ules of Court, which can be ;led separately
and can proceed independently of the
criminal action and regardless of the result
of the latter. (Sa,son v. 0awa., ".. %os.
&600*'6**, -ul. 2&,
200'!
Actions" )ntervention" 1e<uisites ('((()
3hat are the re?uisites for an intervention
by a non- party in an action pending in
court5 6<+8
SUGGESTED ANSWER4
%he re?uisites for intervention areO
D. .egal interest in the matter in a
controversyI or
7. .egal interest in the success of either
of the partiesI or
(Sec. 12,
Rule 3)
(8int v. 8i,6Lu, ".+8 %o.
&(/('(,
Page 16 of
by: sirdondee@gmail.com
66
*. .egal interest against bothI or
>. !o situated as to be adversely
afected by a distribution or other
disposition or property in the
custody of the court or of an oficer
thereof.
<. &ntervention will not unduly delay
or prejudice the adjudication of the
rights or original partiesI
K. &ntervenorLs rights may not be
fully protected in
a separate proceedings.
()cenas ++ v. Court of )$$eals, 2'7
SC) 77( F&99*D; Sec. &, ule &9,
&997 ules of Civil Proce#ure.!
Actions" 1eal Actions - Personal Actions ('((+)
3hat do you mean by a8 real
actionsI and b8 personal action5
67+8
SUGGESTED ANSWER4
a. 0"A. AC%&#'! are actions
afecting title to or possession of
real property or an interest therein
(2ortune Motors, +nc. v. C), ". . %o.
76'(&, 9cto3er &6, &9/9; ule ', Sec.
&!.
b. All other actions are /"0!#'A.
AC%&#'! (Rule 4, Section /) which
include those arising from privity of
contract.
Actions" Survives 8eat, of t,e 8efendant ('((()
/( engaged the services of Atty. !%
to represent him in a civil case
;led by #/ against him which
was doc2eted as Civil Case 'o.
D7*. A retainership agreement
was e9ecuted between /( and Atty.
!% whereby /( promised to pay Atty. !%
a retainer sum of /7>,FFF.FF a year and
to transfer the ownership of a parcel of
land to Atty. !% after presentation of /(Ls
evidence. /( did not comply with his
underta2ing. Atty. !% ;led a case
against /( which was doc2eted as Civil
Case 'o. ><K. During the trial of Civil
Case 'o. ><K, /( died.
D. &s the death of /( a valid ground to
dismiss the money claim of Atty. !%
in Civil Case 'o. ><K5 "9plain. 67+8
7. 3ill your answer be the same with
respect to the real property being
claimed by Atty. !% in Civil
Case 'o. ><K5 "9plain 67+8
SUGGESTED ANSWER4
D. 'o. nder !ec. 7F, 0ule *, DHHE
0ules of Civil /rocedure, when the
action is for recovery of money
arising from contract, e9press or implied,
and the defendant dies before entry
of ;nal judgment in the court in
which the action is pending at the time
of such death, it shall not be dismissed
but shall instead be allowed to
continue until entry of ;nal
judgment. A favorable judgment
obtained by the plaintif shall be
enforced in the manner especially
provided in the 0ules for
prosecuting claims against the
estate of a deceased person.
7. Nes, my answer is the same. An action to
recover real property in any event
survives the death of the defendant.
6!ec. D, 0ule AE, 0ules of Court8.
:owever, a favorable judgment may be
enforced
Dondee
Remedial Law Bar Examination Q & A (1997-2006) in
accordance with !ec. E6b8 0ule *H
6DHHE 0ules of Civil /rocedure8
against the e9ecutor or
administrator or successor in
interest of the deceased.
Aeals" Period of Aeal" &res, Period 1ule ('((.)
Defendant R received an adverse Decision
of the 0%C in an ordinary civil case on F7
(anuary 7FF*. :e ;led a 'otice of Appeal on
DF (anuary 7FF*. #n the other hand,
plaintif A received the same Decision on FK
(anuary 7FF* and, on DH (anuary 7FF*,
;led a @otion for 0econsideration of the
Decision. #n D* (anuary 7FF*,
defendant R ;led a @otion
withdrawing his notice of appeal in order
to ;le a @otion for 'ew %rial which he
attached. #n 7F (anuary 7FF*, the
court denied ALs @otion for
0econsideration and RLs @otion to 3ithdraw
'otice of Appeal. /laintif A received the
#rder denying his @otion for
0econsideration on F* $ebruary 7FF* and
;led his 'otice of Appeal on F< $ebruary
7FF*. %he court denied due course to ALs
'otice of Appeal on the ground that he
period to appeal had already lapsed. K+
6a8 &s the courtLs denial of RLs
@otion to 3ithdraw 'otice of Appeal
proper5
6b8&s the courtLs denial of due course to
ALs appeal
correct5
SUGGESTED ANSWER4
6a8 'o, the courtLs denial of RLs
@otion to 3ithdraw 'otice of Appeal
is not proper, because the period of
appeal of R has not yet e9pired. $rom
(anuary 7, 7FF* when R received a
copy of the adverse decision up to
(anuary D*, 7FF* when he ;led his
withdrawal of appeal and @otion for
'ew %rial, only ten 6DF8 days had
elapsed and he had ;fteen 6D<8 days to
do so.
6b8 'o, the courtLs denial of due
course to ALs appeal is not correct because
the appeal was ta2en on time. $rom (anuary
K, 7FF* when A received a copy of the
decision up to (anuary DH, 7FF* when he
;led a @otion for 0econsideration, only
twelve 6D78 days had elapsed.
Conse?uently, he had three 6*8 days from
receipt on $ebruary *, 7FF* of the #rder
denying his @otion for 0econsideration
within which to appeal. :e ;led is notice of
appeal on $ebruary <,
7FF*, or only two 678 days later.
ALTERNATI3E ANSWER4
!ince ALs @otion for 0econsideration was ;led
on (anuary DH, 7FF* and it was denied on
(anuary 7F, 7FF*, it was clearly not set for
hearing with at least three daysL notice.
%herefore, the motion was pro forma and did
not interrupt the period of appeal which
e9pired on (anuary 7D, 7FF* or ;fteen 6D<8
days after notice of the decision on (anuary K,
7FF*.
=*%9> %o standardiGe the appeal periods
provided in the 0ules and to aford litigants
fair opportunity to appeal their cases, the
Court deems it practical to
allow a 24S< P4+90 of &* #a.s
within which
to ;le the notice of appeal in the 0%C,
counted from
receipt of the order dismissing a motion
for a new
trial or motion for reconsideration.
F%e.$es et. al. vs.
C), ".. %o. &'&*2', Se$te,3er &',
200*D
Certiorari" :ode of Certiorari ('((+)
"9plain each mode of certiorariO
&. )s a ,o#e of a$$eal fro, the
egional 5rial Court or the
Court of )$$eals to the Su$re,e
Court. (2.*H!
SUGGESTED ANSWER4
Certiorari as a mode of appeal is
governed by 0ule >< of the 0ules of
Court which allows appeal from
judgment, ;nal order of
resolution of the Court of
Appeals, !andiganbayan, the 0%C
or other courts whenever
authoriGed by law to the !upreme
Court by veri;ed petition for
review raising only ?uestions of
law distinctly set forth.
2. )s a s$ecial civil action fro,
the egional 5rial Court or the
Court of )$$eals to the
Su$re,e
Court. (2.*H!
SUGGESTED ANSWER4
Certiorari as a !pecial Civil Action
is governed by 0ule K< of the 0ules
of Court when an aggrieved party
may ;le a veri;ed petition against a
decision, ;nal order or resolution of a
tribunal, body or board that has acted
without or in e9cess of its jurisdiction or
grave abuse of discretion amounting to
lac2 or e9cess of jurisdiction, when there is
no appeal or any other plain, speedy and
ade?uate remedy in the ordinary course
of law.
(. )s a ,o#e of review of the
#ecisions of the %ational 8a3or
elations Co,,ission an# the
Constitutional Co,,issions.
(2.*H!
SUGGESTED ANSWER4
Certiorari as a mode of review of the
decision of the '.0C is elevated to the
Court of Appeals under 0ule K<, as held
in the case of St. MartinMs 2uneral <o,e v.
%8C, ".. %o. &(0/66, Se$te,3er &6, &99/.
Certiorari as a mode of review from the
Commission on Audit 6C#A8 and
C#@"."C is elevated to the !upreme
Court within *F days from notice of
the judgment, decision or ;nal order
or resolution sought to be reviewed, as
provided for under the 0ule K> of the
DHHE 0ules of Civil /rocedure. &n the case
of the Civil !ervice Commission 6C!C8,
review of its judgments is through
petitions for review under !ec. < of 0ule
>* of the DHHE 0ules of Civil /rocedure.
Certiorari" 1ule ?7 vs. 1ule +7 (199!)
Diferentiate certiorari as an original
action from certiorari as a mode of
appeal. Q*+,
SUGGESTED ANSWER4
Certiorari as an original action and
certiorari as a mode of appeal may be
distinguished as followsO
D. %he ;rst is a special civil action under
0ule K< of the 0ules of Court, while
the second is an appeal
Dondee
to the !upreme Court from the
Court of Appeals, !andiganbayan
and the 0%C under 0ule ><.
2. %he ;rst can be ;led only on the
grounds of lac2 or e9cess of
jurisdiction or grave abuse of
discretion tantamount to lac2 or
e9cess of jurisdiction, while the
second is based on the errors of
law of the lower court.
3. %he ;rst should be ;led within si9ty
6KF8 days from notice of the judgment,
order or resolution sought to be
assailed (Sec. 4. Rule .(), while the
second should be ;led within ;fteen
6D<8 days from notice of the judgment
or ;nal order or resolution appealed
from, or of the denial of the petitionerJs
motion for new trial or
reconsideration ;led in due time after
notice of the judgment. (Sec. 2, Rule
4()
4. %he ;rst cannot generally be
availed of as a substitute for a
lost appeal under 0ules >F, >D,
>7, >* and ><.
(. nder the ;rst, the lower court is
impleaded as a party respondent (Sec.
( of Rule .(), while under the
second, the lower court is not imp
leaded.
(Sec. 4 of Rule of 4()
Certiorari" 1ule ?7 vs. 1ule +7 ('((7)
@ay the aggrieved party ;le a petition
for certiorari in the !upreme Court
under 0ule K< of the DHHE 0ules of
Civil /rocedure, instead of ;ling a
petition for review on certiorari
under 0ule >< thereof for the
nulli;cation of a decision of the Court of
Appeals in the e9ercise either of its
original or appellate jurisdiction5
"9plain.
SUGGESTED ANSWER4
%o '..&$N A D"C&!&#' of the
Court of Appeals the aggrieved party
should ;le a /"%&%&#' $#0 0"-&"3 #'
C"0%&#0A0& in the !upreme Court under
0ule >< of the 0ules of Court instead of
;ling a petition for certiorari under 0ule
K< e9cept under very e9ceptional
circumstances. A long line of decisions of
the !upreme Court, too numerous to
mention, holds that certiorari is not a
substitute for a lost appeal. &t should be
noted, however, when the Court of
Appeals imposes the death penalty, or a
lesser penalty for ofenses committed
on such occasion, appeal by petition for
review or ordinary appeal. &n cases when
the Court of Appeals imposes reclusion
perpetua, life imprisonment or a lesser
penalty, appeal is by notice of appeal
;led with the Court of Appeals.
Contemt" 8eat, of a Party" 9ffect (199!)
A ;led a complaint for the recovery of
ownership of land against B who was
represented by her counsel R. &n the course
of the trial, B died. :owever, R failed to
notify the court of BJs death. %he court
proceeded to hear the case and rendered
judgment against B. After the (udgment
became ;nal, a writ of e9ecution
was issued against C, who being
BJs sole heir, ac?uired the property.
Did the failure of counsel R to inform
the court of BJs death constitute direct
contempt5 67+8
SUGGESTED ANSWER4
'o. &t is not direct contempt under
!ec. D of 0ule ED, but it is indirect
contempt within the purview of !ec * of
0ule ED. %he lawyer can also be the
subject of disciplinary action. (Sec. 1.,
Rule 3)
8efault ('((()
Defendant was declared in default by the
0%C 60%C8. /laintif was allowed to
present evidence in support of his
complaint. /hotocopies of oficial receipts
and original copies of afidavits were
presented in court, identi;ed by plaintif
on the witness stand and mar2ed as
e9hibits. !aid documents were ofered by
plaintif and admitted in evidence by the
court on the basis of which the 0%C
rendered judgment in favor of the plaintif,
pursuant to the relief prayed for. pon
receipt of the judgment, defendant appeals
to the Court of Appeals claiming that the
judgment is not valid because the 0%C
based its judgment on mere photocopies
and afidavits of persons not presented
in court.
&s the claim of defendant valid5 "9plain.
6*+8
SUGGESTED ANSWER4
%he claim of defendant is not valid because
under the DHHE 0ules, reception of
evidence is not re?uired. After a
defendant is declared in default, the
court shall proceed to render judgment
granting the claimant such relief as his
pleading may warrant, unless the court in
its discretion re?uires the claimant to
submit evidence, which may be delegated
to the cler2 of court. (Sec. 3, Rule 9)
ALTERNATI3E ANSWER4
%he claim of defendant is valid, because
the court received evidence which it can
order in its own discretion, in which case
the evidence of the plaintif must pass the
basic re?uirements of admissibility.
8efault ('((1)
@ario was declared in default but
before judgment was rendered, he
decided to ;le a motion to set aside the
order of default.
a8 3hat should @ario state in his
motion in order to justify the setting
aside of the order of default5 6*+8
b8 &n what form should such motion be5
67+8
SUGGESTED ANSWER4
a8&n order to justify the setting aside of
the order of default, @ario should
state in his motion that his failure to
answer was due to fraud, accident,
mista2e or e9cusable negligence and
that he has a meritorious defense. [Sec.
3(b) of Rule 9,].
b8 %he motion should be under oath.
6&d.8
8efault" *rder of 8efault" 9ffects (1999)
Dondee
D. 3hen may a party be declared in
default5 67+8
7. 3hat is the efect of an #rder of
Default5 67+8
*. $or failure to seasonably ;le his Answer
despite due notice, A was declared in
default in a case instituted against
him by B. %he following day, AJs
mistress who is wor2ing as a cler2 in the
sala of the (udge before whom his
case is pending, informed him of the
declaration of default. #n the same
day, A presented a motion under oath to
set aside the order of default on the
ground that his failure to answer was
due to fraud and he has a meritorious
defense. %hereafter, he went abroad.
After his return a wee2 later, with the
case still undecided, he received
the order declaring him in default. %he
motion to set aside default was opposed
by B on the ground that it was ;led
before A received notice of his having
been declared in default, citing the rule
that the motion to set aside may be
made at anytime after notice but before
judgment. 0esolve the @otion.
67+8
SUGGESTED ANSWER4
D. A party may be declared in default
when he fails to answer within the
time allowed therefor, and upon
motion of the claiming party with
notice to
the defending party, and proof of
such failure.
(Sec. 3, Rule 9)
7. %he efect of an #rder of Default is
that the court may proceed to render
judgment granting the claimant such
relief as his pleading may warrant
unless the court in its discretion re?uires
the claimant to submit evidence
6&d.8 %he party in default cannot
ta2e part in the trial but shall be
entitled to notice of subse?uent
proceedings. (Sec. 3[-])
*. Assuming that the motion to set aside
complies with the other
re?uirements of the rule, it should
be granted. Although such a
motion may be
made after notice but before
judgment (Sec. 3[5] of Rule 9), with
more reason may it be ;led after
discovery even before receipt of
the order of default.
8efault" 1emedies" Party 8eclared in 8efault (199!)
3hat are the available remedies of a
party declared &n defaultO
D. Before the rendition of judgmentI
)D+,
7. After judgment but before its
;nalityI and )7+D
*. After ;nality of judgment5 )7+,
SUGGESTED ANSWER4
%he available remedies of a party
declared in default are as followsO
1. BEFORE THE RENDITION OF JUDGMENT
6a8 he may ;le a motion under oath
to set aside the order of default
on the grounds of fraud,
accident, mista2e or e9cusable
negligence and that he has a
meritorious
1, Rule
.()
by: sirdondee@gmail.com
Page 19 of 66
defense (Sec. 3[b], Rule 9); and if it
is denied, he may move to
reconsider, and if
reconsideration is denied, he may
;le the special civil action of
certiorari for grave abuse of
discretion tantamount to lac2 or
e9cess of the lower courtJs
jurisdiction. (Sec.
or
6b8 he may ;le a petition for certiorari if
he has been illegally declared in
default, e.g. during the pendency
of his motion to dismiss or
before the e9piration of the time to
answer.
(Matute vs. Court of )$$eals, 26
SC) 76/; )costa69falia vs.
Sun#ia,, /* SC) '&2.!
7. AFTER JUDGMENT BUT BEFORE ITS
FINALITY, he may ;le a motion for new
trial on the grounds of fraud, accident,
mista2e, e9cusable negligence, or a
motion for reconsideration on the
ground of e9cessive damages,
insuficient evidence or the decision
or ;nal order being contrary to law
(Sec. 2, Rule 37)O and thereafter. &f the
motion is denied, appeal to available
under 0ules >F or >D, whichever to
applicable.
*. AFTER FINALITY OF THE JUDGMENT, there
are three ways to assail the judgment,
which areO
a8 a petition for relief under 0ule
*A on the grounds of fraud,
accident, mista2e or e9cusable
negligenceI
b8 annulment of judgment under
0ule >E for e9trinsic fraud or
lac2 of jurisdictionI or
c8 certiorari if the judgment to void
on its face
or by the judicial record.
(Balangca# vs.
-ustices of the Court of )$$eals,
".. %o. /(///. 2e3ruar. &2,
&992, 206 /C) &7&!.
8efault" 1emedies" Party 8eclared in 8efault ('((+)
(ojie ;led with the 0egional %rial Court of
.aguna a complaint for damages against
(oe. During the pre- trial, (ojie 6sic8 and
her 6sic8 counsel failed to appear despite
notice to both of them. pon oral motion of
(ojie, (oe was declared as in default and
(ojie was allowed to present her evidence
e9 parte. %hereafter, the court rendered its
Decision in favor of (ojie.
(oe hired (ose as his counsel. 3hat are
the remedies available to him5 "9plain.
6<+8
SUGGESTED ANSWER4
%he remedies available to a party
against whom a default decision is
rendered are as followsO
D. B"$#0" the judgment in default
becomes ;nal and e9ecutoryO
a. @otion for 0econsideration
under 0ule *EI
b. @otion for 'ew %rial under 0ule
*EI and
c. Appeal under 0ule >D.
7. A$%"0 the judgment in default
becomes ;nal and e9ecutoryO
a. /etition for 0elief under 0ule *AI
b. Annulment of (udgment under
0ule >EI and
Dondee
c. Certiorari under 0ule K<.
(See 5alsan 4nter$rises, +nc. v. Baliwag
5ransit, +nc., ".. %o. &262*/, -ul. /,
&999!
8efault" 1emedies" Substantial Comliance ('((()
$or failure of 4.(. to ;le an answer
within the reglementary period, the
Court, upon motion of .@, declared 4(
in default. &n due time, 4( ;led an
unveri;ed motion to lift the order of
default without an afidavit of merit
attached to it. 4( however attached to
the motion his answer under oath,
stating in said answer his reasons for
his failure to ;le an answer on time,
as well as his defenses. 3ill the
motion to lift the order of default
prosper5 "9plain. 6*+8
SUGGESTED ANSWER4
Nes, there is substantial compliance with
the rule. Although the motion is
unveri;ed, the answer attached to the
motion is veri;ed. %he answer contains
what the motion to lift the order of default
and the afidavit of merit should contain,
which are the reasons of movantLs failure
to answer as well as his defenses. (Sec.
( F3D of ule 9, &997 ules of Civil
Proce#ure; Cf. Citi3anE, %.). v. Court
of )$$eals, (0' SC) 679, F&999D;
Consul v. Consul, &7 SC) 667, 67&
F&966D; 5olentino v. Carlos, 66 Phil, &'*0,
&'(6&'' F&9(/D, %asser v. Court of
)$$eals, &9& SC) 7/( F&992D!.
8emurrer to 9vidence ('((1)
Carlos ;led a complaint against /edro in the
0%C of #Gamis City for the recovery of the
ownership of a car. /edro ;led his answer
within the reglementary period. After the
pre-trial and actual trial, and after Carlos
has completed the presentation of his
evidence, /edro 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.
%he 0%C granted the motion for dismissal.
Carlos appealed the order of dismissal and
the appellate court reversed the order of
the trial court. %hereafter, /edro ;led a
motion with the 0%C as2ing the latter to
allow him to present his evidence.
Carlos objected to the presentation of
evidence by /edro.
!hould the 0%C grant /edroLs motion to
present his evidence5 3hy5 6<+8
SUGGESTED ANSWER4
'o. /edroLs motion should be denied. :e
can no longer present evidence. %he 0ules
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
Ciil !roce"ure)
ALTERNATI3E ANSWER4
'o, because when the appellate court
reversed the order of the trial court it
should have rendered judgment in favor of
Carlos. (7uebr%l . Court of -88e%ls, 2(2 SCR-
3(3, 199.)
66
8emurrer to 9vidence" Civil Case vs. Criminal
Case ('((.)
Compare the efects of a denial
of demurrer to evidence in a
civil case with those of a denial
of demurrer to evidence in a
criminal case. >+
SUGGESTED ANSWER4
&n a civil case, the defendant has
the right to ;le a demurrer to
evidence without leave of court. &f
his demurrer is denied, he has
the right to present evidence. &f his
demurrer is granted and on appeal by
the plaintif, the appellate court
reverses the order and renders
judgment for the plaintif, the defendant
loses his right to present evidence.
60ule **8.
&n a criminal case, the accused has
to obtain leave of court to ;le a
demurrer to evidence. &f he
obtains leave of court and his
demurrer to evidence is denied, he
has the right to present evidence in
his defense. &f his demurrer to
evidence is granted, he is
ac?uitted and the prosecution
cannot appeal.
&f 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.
%he court may also dismiss the
action on the ground of
insuficiency of the evidence on its
own initiative after giving the
prosecution the opportunity to be
heard. (Sec. 23 of Rule 119)
8iscovery" :odes of 8iscovery ('((()
Describe brie=y at least ;ve 6<8
modes of discovery under the
0ules of Court. 6<+8
SUGGESTED ANSWER4
$ive modes of discovery under
the 0ules of Court areO
D. DEPOSITION. By leave of court after
jurisdiction has been obtained
over any defendant or over
property which is the subject of
the action, or without such leave
after an answer has been served,
the testimony of any person, whether
a party or not, may be ta2en, at the
instance of any party, by deposition
upon oral e9amination or
written interrogatories. (Sec. 1, Rule
23, 1997 Rules of Ciil !roce"ure.)
7. INTERROGATORIES TO PARTIES. nder the
same conditions speci;ed in section D of
0ule 7*, any party shall ;le and serve
upon any adverse party written
interrogatories regarding material and
relevant facts to be answered by the
party served. 6Sec. 1, Rule 2(, 1997 Rules
of Ciil !roce"ure.)
*. ADMISSION BY ADVERSE PARTY. At any time
after issues have been joined, a party
may ;le and serve upon any other party
a written re?uest for the admission by
the latter of the genuineness of any
material and relevant document or of
the
truth of any material and relevant
matter of fact.
(Sec. 1, Rule 2., 1997 Rules of Ciil
!roce"ure.)
>. PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS. pon motion of any party showing
good cause therefore, a court may
order any party to produce and
permit the inspection and copying or
photographing of any designated
documents, etc. or order any party to
permit entry upon designated land
or property for inspecting,
measuring, surveying, or
photographing the property or any
designated
relevant object or operation
thereon. (Sec. 1, Rule 27, 1997 Rule 27
Rules of Ciil !roce"ure.)
8iscovery" :odes" Suboena 8uces %ecum (1997)
&n an admiralty case ;led by A against N
!hipping .ines 6whose principal ofices
are in @anila8 in the 0%C, Davao City, the
court issued a subpoena duces tecum
directing N, the president of the shipping
company, to appear and testify at the
trial and to bring with him several
documents.
6a8 #n what valid ground can N
refuse to comply with the subpoena
duces tecum5
6b8 :ow can A ta2e the testimony of N
and present the documents as e9hibits
other than through the
subpoena from the 0%C5
SUGGESTED ANSWER4
6a8 N can refuse to comply with the subpoena
duces tecum on the ground that he
resides more than <F 6now DFF8
2ilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 1) of new
Rule 21).
6b8 A can ta2e the testimony of N and
present the documents as e9hibits by
ta2ing his deposition
through oral e9amination or written
interrogatories. (Rule 24; new Rule 23) :e
may also ;le a motion for the production
or inspection of documents. (Rule 27).
ALTERNATI3E ANSWER4
6a8 %he witness can also refuse to
comply with the subpoena duces
tecum on the ground that the
documents are not relevant and there
was no tender of fees for one dayJs
attendance and the 2ilometrage allowed
by the rules.
8iscovery" Production and )nsection of 8ocuments
('((')
%he plaintif sued the defendant in the 0%C
to collect on a promissory note, the terms of
which were stated in the complaint and a
photocopy attached to the complaint as an
anne9. Before answering, the defendant ;led
a motion for an order directing the plaintif
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.
D. !hould the judge grant the
defendantLs motion for production and
inspection of the original of the
promissory note5 3hy5 67+8
7. Assuming that an order for production
and inspection was issued but the plaintif
failed to comply with it, how should the
defendant plead to the alleged e9ecution of
the note5 6*+8
66
SUGGESTED ANSWER4
6D8Nes, 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).
%he defendant has the right to
inspect and verify the original of
the promissory note so that he
could intelligently prepare his
answer.
678 %he defendant is not
re?uired to deny under oath the
genuineness and due e9ecution of
the promissory note, because of the
non-compliance by the plaintif with
the order for production and
inspection of the original thereof.
(Rule *, sec. *).
ALTERNATI3E ANSWER4
678 %he defendant may ;le a motion
to dismiss the complaint because of
the refusal of the plaintif to obey
the order of the court for the
production and inspection of the
promissory note. [Rule 29 Sec. 3(c)].
8ismissal" :otion to 8ismiss" 1es Judicata ('((()
AB, as mother and in her capacity as
legal guardian of her legitimate minor
son, CD, brought action for support
against "$, as father of CD and
ABLs lawfully wedded husband. "$
;led his answer denying his
paternity with counterclaim for
damages. !ubse?uently, AB ;led a
manifestation in court that in view of
the denial made by "$, it would be futile to
pursue the case against "$. AB agreed to
move for the dismissal of the
complaint, subject to the condition that
"$ will withdraw his counter claim for
damages. AB and "$ ;led a joint motion to
dismiss. %he court dismissed the case with
prejudice. .ater on, minor son CD,
represented by AB, ;led another
complaint for support against "$. "$ ;led a
motion to dismiss on the ground of res
judicata.
a8 &s res judicata a valid ground for
dismissal of the second complaint5
"9plain your answer 6*+8
b8 3hat are the essential re?uisite of res
judicata5
67+8
SUGGESTED ANSWER4
6a8 'o, res judicata is not a defense in an
action for support even if the ;rst case
was dismissed with prejudice on a joint
motion to dismiss. %he plaintifLs mother
agreed to the dismissal of the complaint for
support in view of the defendantLs answer
denying his paternity with a counterclaim
for damages. %his was in the nature of a
compromise of the right of support which is
prohibited by law. ()rt, 20(*, Civil Co#e; 0e
)sis v. Court of )$$eals, (0( SC) &76
F&999D!.
6b8 %he "ssential 0e?uisites of 0es
(udicata areO
D. the judgment or order
rendered must be ;nalI
7. the court rendering the same
must have jurisdiction of the
subject matter and of the partiesI
*. it must be a judgment or order on
the meritsI and
Dondee
SUGGESTED ANSWER4
A QUESTION OF LAW is when the doubt
&orum S,oing" 8efinition ('((+)
3hat is forum shopping5
67.<+8
SUGGESTED ANSWER4
$orum shopping is the act of a party which
consists of ;ling multiple suits,
simultaneously or successively, for the
purpose of obtaining a favorable judgment
(8e.son v. 9>ice of the 9,3u#s,an, "..
%o. &('990, )$ril 27, 2000; Lulienco v.
C), ".. %o. &(&692, -une &0,&999;
Che,$hil 47$ort N +,$ort Cor$. v. C),
".. %os. &&2'(/6(9, 0ece,3er &2, &99*!.
&orum S,oing" 9ffects" 0ac@ of Certification ('((+)
:oney ;led with the 0egional %rial
Court, %aal, Batangas a complaint for
speci;c performance against Bernie.
$or lac2 of certi;cation against
forum shopping, the judge dismissed the
complaint. :oneyJs lawyer ;led a
motion for reconsideration, attaching
thereto an amended complaint with
the certi;cation against forum
shopping. &f you were the judge, how will
you resolve the motion5 6<+8
SUGGESTED ANSWER4
&f & were the judge, the motion should be
denied after hearing because, as
e9pressly provided in the 0ules, failure
to comply with the re?uirement 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.
(, Rule 7, 1997 Rules of Ciil !roce"ure).
:owever, the trial court in the e9ercise of
its sound discretion, may choose to
be liberal and consider the amendment
as substantial compliance
("reat Southern Mariti,e Services Cor$. v.
)cuna, ".. %o. &'0&/9, 2e3ruar.
2/,200*; Chan v. 5C of
Ga,3oanga #el %orte, ".. %o. &'92*(,
)$ril &*, 200'; :. v. 8an# BanE, "..
&(6&00, -ul. 2', 2000!.
3en. Princiles" Auestions of 0a2 vs. Auestions of &act
('((?)
Distinguish Muestions of law from Muestions
of fact.
(Sec. 3 of Rule
13))
oficial receipts and
afidavits are without proof of
loss of the originals.
of t0e Reise" Rule on
Summ%r$ !roce"ure).
(Sec.
9
%he claim of defendant is valid, because
although summary procedure re?uires
merely the submission of position papers,
the evidence submitted with the position
paper must be admissible in evidence.
/hotocopies
of not
admissible
>. there must be between the two
cases identity of parties, identity
of subject matter, and identity
of causes of action. (San 0iego
v.
Car#ona, 70 Phil, 2/&
F&9'0D!
9vidence" Admissibility" P,otocoies ('((()
&f the photocopies of oficial
receipts and photocopies of
afidavits were attached to the
position paper submitted by plaintif in
an action for unlawful detainer ;led with
@unicipal %rial Court on which basis the
court rendered judgment in favor of
plaintif5 "9plain. 67+8
SUGGESTED ANSWER4
or diference arises as to what the law is on
a certain set of facts, while a QUESTION OF
FACT is when the doubt or diference arises
as to the truth or falsehood of alleged
facts. (a,os v. Pe$si6Cola Bottling Co., &9
SC) 2/9, F&9670D!.
Judgment" Annulment of Judgment" 3rounds (199!)
3hat are the grounds for the
annulment of a judgment of the 0%C
60%C85 )7+,
SUGGESTED ANSWER4
%he grounds for annulment of judgment
of the 0%C are "9trinsic $raud and
.ac2 of (urisdiction. (Sec, 2, Rule 47,
1997 Rules of Ciil !roce"ure.)
Judgment" 9nforcement" 7$year eriod (1997)
A, a resident of Dagupan City,
secured a favorable judgment in an
ejectment case against R, a resident of
MueGon City, from the @%Cof
@anila. %he judgment, entered on
D< (une DHHD, had not as yet been
e9ecuted.
a8 &n (uly DHHK, A decided to enforce the
judgment of the @%Cof @anila.
3hat is the procedure to be followed
by A in enforcing the judgment5
b8 3ith what court should A
institute the
proceedings5
SUGGESTED ANSWER4
6a8A can enforce the judgment by
another action reviving the (udgment
because it can no longer be enforced by
motion as the ;ve-year period within
which a judgment may be enforced by
motion has already e9pired. (Sec. . of
former %n" new Rule 39).
6b8 A may institute the proceedings in
the 0%C in accordance with the rules
of venue because the enforcement of
the (udgment is a personal action
incapable of pecuniary estimation.
ALTERNATI3E ANSWER4
6b8 A may institute the proceeding in
a @%Cwhich has jurisdiction over the
area where the real property involved is
situated. (Sec. 1 of Rule 4).
Judgment" 9nforcement" &oreign Judgment ('((7)
nder Article DD>> of the 'ew Civil
Code, an action upon a judgment
must be brought within DF years
from the time the right of action
accrues. &s this provision applicable
to an action ;led in the
/hilippines to enforce a foreign
judgment5 "9plain. 6DF+8
ALTERNATI3E ANSWER4
Article DD>> of the Civil Code which re?uires
that an action upon a judgment 6though
without distinction8 must be brought
within DF years from the time the right
of action accrues, does not apply to an
action ;led in the /hilippines to enforce a
foreign judgment. 3hile we can say that
where the law does not distinguish, we
should not distinguish, still the law does
not evidently contemplate the inclusion
of
Dondee
foreign judgments. A local judgment may
be enforced by motion within ;ve years
and by action within the ne9t ;ve
years. (Rule 39) %hat is not the case
with respect to foreign judgments
which cannot be enforced by mere
motion.
ALTERNATI3E ANSWER4
Article DD>> of the Civil Code re?uires
that an action upon a judgment
6though without distinction8 must be
brought within DF years from the time
the right of action accrues. %here
seems no cogent reason to e9clude
foreign judgments from the operation of
this rule, subject to the re?uirements of
0ule *H, !ec. >A of the 0ules of
Court which establishes certain
re?uisites for proving the foreign
judgment. /ursuant to these provisions,
an action for the enforcement of the
foreign judgment may be brought at
any time within DF years from the
time the right of action accrues.
Judgment" 9;ecution ending Aeal ('((')
%he trial court rendered judgment
ordering the defendant to pay the
plaintif moral and e9emplary damages.
%he judgment was served on the plaintif on
#ctober D, 7FFD and on the defendant on
#ctober <, 7FFD. #n #ctober A, 7FFD,
the defendant ;led a notice of appeal from
the judgment, but the following day,
#ctober H, 7FFD, the plaintif moved for
the e9ecution of the judgment pending
appeal. %he trial court granted the motion
upon the posting by the plaintif of a
bond to indemnify the defendant for
damages it may sufer as a result of the
e9ecution. %he court gave as a special
reason for its order the imminent
insolvency of the defendant.
&s the order of e9ecution pending
appeal correct5 3hy5 6<+8
SUGGESTED ANSWER4
'o, because awards for moral and
e9emplary damages cannot be the subject of
e9ecution pending appeal. %he e9ecution
of any award for moral and e9emplary
damages is dependent on the outcome of the
main case. .iabilities for moral and
e9emplary damages, as well as the
e9act amounts remain uncertain and
inde;nite pending resolution by the Court
of Appeals or !upreme Court. FCP+ v.
8antin,
&(' SC) (9* (&9/*!; +nternational
School, +nc. v. Court of )$$eals, (09 SC)
'7' (&999!D.
ALTERNATI3E ANSWER4
Nes, because only moral and e9emplary
damages are awarded in the judgment and
they are not dependent on other types of
damages.
@oreover, the motion for e9ecution was
;led while the court had jurisdiction over
the case and was in possession of the
original record.
&t is based on good reason which is the
imminent insolvency of the defendant. 60ule *H,
sec. 78
66
Judgment" )nterlocutory *rder" Partial
Summary Judgments ('((?)
After defendant has served and ;led
his answer to plaintifs complaint for
damages before the proper 0%C,
plaintif served and ;led a motion
6with supporting afidavits8 for a
summary judgment in his favor upon
all of his claims. Defendant served
and ;led his opposition 6with
supporting afidavits8 to the motion.
After due hearing, the court issued an
order 6D8 stating that the court has
found no genuine issue as to any
material fact and thus concluded that
plaintif is entitled to judgment in
his favor as a matter of law e9cept
as to the amount of damages
recoverable, and 678 accordingly
ordering that plaintif shall have
judgment summarily against defendant
for such amount as may be found
due plaintif for damages, to be
ascertained by trial on #ctober E,
7FF>, at AO*F oJcloc2 in the morning.
@ay defendant properly ta2e an
appeal from said order5 #r, may
defendant properly challenge said order
thru a special civil action for certiorari5
0eason. 6<+8
SUGGESTED ANSWER4
'o, plaintif may not properly ta2e
an appeal from said order because it
is an interlocutory order, not a ;nal and
appealable order (Sec. 4 of Rule 3(). &t
does not dispose of the action or
proceeding 6Sec. 1 of Rule 398.
/A0%&A. !@@A0N
(D1@"'%! are interlocutory.
%here is still something to be done,
which is the trial for the
adjudication of damages
(Province of Pangasinan v. Court of
)$$eals, 220 SC) 726 F&99(-;
"uevarra v. Court of )$$eals, 209
Phil. 2'& F&9/(D!, but the defendant
may properly challenge said order
thru a special civil action for
certiorari. (Sec. 1 [c] %n" l%st 8%r. of
Rule 41)
Judgment" Judgment on t,e Pleadings (1999)
a8 3hat are the grounds for
judgment on the pleadings5
67+8
b8 AJs Answer admits the material
allegations of BJs Complaint. @ay the
court motu 8ro8rio render judgment
on the pleadings5 "9plain. 67+8
c8 A brought an action against her
husband B for annulment of their
marriage on the ground of
psychological incapacity, B ;led his
Answer to the Complaint
admitting all the allegations
therein contained. @ay A move for
judgment on the pleadings5 "9plain.
67+8
SUGGESTED ANSWER4
a8 %he grounds for judgment on the
pleadings are where an answer
fails to tender an issue, or
otherwise admits the material
allegations of the adverse partyJs
pleading. (Sec. 1, Rule 34).
b8 'o, a motion must be ;led by the
adverse party.
(Sec. 1, Rule 34) %he court cannot
motu 8ro8rio
render judgment on the pleadings.
c8 'o, because even if BJs answer to AJs
complaint for annulment of their
marriage admits all the allegations
therein contained, the material facts
alleged in the complaint must always
be proved.
(Sec. 1 of Rule 34.)
ANOT5ER ANSWER4
c. 'o. %he court shall order the
prosecutor to investigate whether or not
a collusion between the parties e9ists, and
if there is no collusion, to intervene for the
!tate in order to see to it that the
evidence submitted is not fabricated. (Sec.
3[9], Rule 9) "vidence must have to be
presented in accordance with the
re?uirements set down by the !upreme
Court in
e$u3lic vs. Court of )$$eals an#
Molina (26/ SC) &9/.!
Judgment" Judgment on t,e Pleadings ('((7)
&n a complaint for recovery of real
property, the plaintif averred, among
others, that he is the owner of the said
property by virtue of a deed of sale
e9ecuted by the defendant in his favor.
Copy of the deed of sale was appended
to the complaint as Anne9 PAP thereof.
&n his unveri;ed answer, the defendant
denied the allegation concerning the sale
of the property in ?uestion, as well as
the appended deed of sale, for lac2 of
2nowledge or information suficient to form a
belief as to the truth thereof. &s it proper for
the court to render judgment without trial5
"9plain. 6>+8
SUGGESTED ANSWER4
Defendant cannot deny the sale of the
property for lac2 of 2nowledge or
information suficient to form a belief as to
the truth thereof. %he answer amounts to an
admission. %he defendant must aver or
state positively how it is that he is
ignorant of the facts alleged. (Phil,
)#vertising Counselors, +nc. v. evilla,
".. %o. 86(&/69, )ugust /, &97(; Sec.
&0, ule /!
@oreover, the genuineness and due
e9ecution of the deed of sale can only
be denied by the defendant under
oath and failure to do so is also an
admission of the deed. (Sec. *, Rule *)
:ence, a judgment on the pleadings can
be rendered by the court without need
of a trial.
Judgment" :andamus vs. Auo Barranto ('((1)
/etitioner $abian was appointed "lection
0egistrar of the @unicipality of !evilla
supposedly to replace the respondent
"lection 0egistrar /ablo 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 e9ercise his functions
thereto. /etitioner $abian then ;led a
petition for mandamus against /ablo but the
trial court dismissed $abianLs petition
contending that ?uo warranto is the proper
remedy.
&s the court correct in its ruling5 3hy5 6<+8
SUGGESTED ANSWER4
Nes, the court is correct in its ruling. @andamus
will not lie. %his remedy applies only where
petitionerLs right is founded clearly in law,
not when it is doubtful. /ablo was
transferred without his consent
which is tantamount to removal
without cause,
contrary to the fundamental guarantee
on non-
removal e9cept
for
cause. Considering
that /edro
continued to occupy the disputed
position and e9ercise his functions
therein, the proper remedy is ?uo
warranto, not mandamus. O"arces v.
Court of
)$$eals, 2*9 SC) 99 (&996!D
ALTERNATI3E ANSWER4
Nes, the court is correct in its ruling.
@andamus lies when the
respondent unlawfully e9cludes
another from the use and
enjoyment of a right or ofice to
which such other is entitled. (Sec.
2, Rule .(). &n this case, /ablo has
not unlawfully e9cluded $abian from
the #fice of "lection 0egistrar.
%he remedy of $abian is to ;le
an action of ?uo warranto in his
name against /ablo for usurping the
ofice. (Sec. (, Rule ..)
Judgment" Soundness" Attac,ment ('((')
%he plaintif obtained a writ of
preliminary attachment upon a bond of
/D million. %he writ was levied on
the defendantLs property, but it
was discharged upon the posting by
the defendant of a counterbond in the
same amount of /D million. After trial,
the court rendered judgment ;nding
that the plaintif 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 plaintif and its surety to pay jointly to
the defendant /D.< million as actual
damages, /F.< million as moral damages
and /F.< million as e9emplary damages.
"valuate the soundness of the
judgment from the point of view of
procedure. 6<+8
SUGGESTED ANSWER4
%he judgment against the surety is not
sound if due notice was not given to
him of the applicant for damages.
(Rule (7, sec. 2)) @oreover, the
judgment against the surety cannot
e9ceed the amount of its counterbond
of /D million.
Judgments" 9nforcement" 9;amination of
8efendant ('((')
%he plaintif, a @anila resident, sued the
defendant, a resident of @alolos
Bulacan, in the 0%C-@anila for a sum
of money. 3hen the sherif tried to
serve the summons with a copy of
the complaint on the defendant at
his Bulacan residence, the sherif
was told that the defendant had
gone to @anila for business and
would not be bac2 until the evening of
that day. !o, the sherif served the
summons, together with a copy of the
complaint, on the defendantLs DA- year-
old daughter, who was a college student.
$or the defendantLs failure to answer
the complaint within the reglementary
period, the trial court, on motion of the
plaintif, 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.
Dondee
A. After the judgment had become
;nal, a writ of e9ecution was issued by the
court. As the writ was returned unsatis;ed,
the plaintif ;led a motion for an order
re?uiring the defendant to appear before it
and to be e9amined regarding his
property and income. :ow should the court
resolve the motion5 67+8
SUGGESTED ANSWER4
Jurisdiction" 6abeas Corus" Custody of :inors ('((7)
3hile @arietta was in her place of wor2
in @a2ati City, her estranged husband
Carlo barged into her house in /arana?ue
City, abducted their si9-year old son,
/ercival, and brought the child to his
hometown in Baguio City. Despite @ariettaJs
pleas, Carlo refused to return their child.
@arietta, through counsel, ;led a petition
for habeas corpus against Carlo in the Court
of Appeals in @anila to compel him to
produce their son, before the court and for
her to regain custody. !he alleged in the
petition that despite her eforts, she could
no longer locate her son.
&n his comment, Carlo alleged that the
petition was erroneously ;led in the Court
of Appeals as the same should have been
;led in the $amily Court in Baguio City
which, under 0epublic Act 'o. A*KH,
has e9clusive jurisdiction, over the
petition. @arietta replied that under 0ule
DF7 of the 0ules of Court, as amended, the
petition may be ;led in the Court of
Appeals and if granted, the writ of
habeas corpus shall be enforceable
anywhere in the /hilippines. 3hose
contention is correct5 "9plain. 6<+8
SUGGESTED ANSWER4
@ariettaJs contention is correct. %he
Court of Appeals has concurrent
jurisdiction with the family courts and the
!upreme Court in petitions for habeas
corpus where the custody of minors is at
issue, notwithstanding the provision in
the $amily Courts A:. (R.-. 'o. *3.9) that
family courts have e9clusive jurisdiction in
such cases. (5hornton v. 5hornton, "..
%o. &*'*9/, )ugust, 200'!
Jurisdiction" 0ac@ of Jurisdiction" Proer Action of t,e
Court ('((?)
/laintif ;led a complaint for a sum of money
against defendant with the @e%C-@a2ati,
the total amount of the demand,
e9clusive of interest, damages of
whatever 2ind, attorneyJs fees, litigation
e9penses, and costs, being /D,FFF,FFF. &n due
time, defendant ;led a motion to dismiss the
complaint on the ground of the @e%CJs lac2 of
jurisdiction over the subject matter. After due
hearing, the @e%C 6D8 ruled that the court
indeed lac2ed jurisdiction over the subject
matter of the complaintI and 678 ordered that the
case therefore should be forwarded to the
proper 0%C immediately. 3as the courtJs
ruling concerning jurisdiction correct5 3as the
courtJs order to forward the case proper5 "9plain
brie=y. 6<+8
SUGGESTED ANSWER4
(Sec. 1. of
Rule
Nes. %he @e%C did not have
jurisdiction
over
case because the total amount
of the
deman
e9clusive of interest,
damages
of whatever
2ind,
attorneyJs fees, litigation
e9penses, and costs, was /D@. &ts
jurisdictional amount at this time
should not e9ceed />FF.FFF.FF
(Sec. 33 of 5.!. 5i3. 129, %s %men"e"
b$ R.-. 'o. 7.91).
%he courtJs order to forward the case to
the 0%C is not proper. &t should
merely dismiss the complaint. nder
!ec. * of 0ule DK, 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.
Parties" 8eat, of a Party" 9ffect (199!)
A ;led a complaint for the recovery
of ownership of land against B who
was represented by her counsel R.
&n the course of the trial, B died.
:owever, R failed to notify the
court of BJs death. %he court
proceeded to hear the case and
rendered judgment against B.
After the (udgment became ;nal, a
writ of e9ecution was issued
against C, who being BJs sole
heir, ac?uired the property.
&f you were counsel of C, what
course of action would you ta2e5
)*+,
SUGGESTED ANSWER4
As counsel of C, & would move to set aside
the writ of e9ecution and the judgment for
lac2 of jurisdiction and lac2 of due process
in the same court because the judgment is
void. &f R had noti;ed the court of BJs death,
the court would have ordered the
substitution
of the deceased by C, the sole heir of B.
3) %he court ac?uired no jurisdiction
over C upon whom the trial and the
judgment are not binding.
(2erreira us. +3arra =#a. #e "onCales, &0'
Phil. &'(; =#a. #e la CruC vs. Court of
)$$eals, // SC) 69*; 8awas us. Court of
)$$eals, &'6 SC) &7(.! & could also ;le
an action to annul the judgment for lac2 of
jurisdiction because C, as the successor of
B, was deprived of due process and
should have been heard before judgment.
(Rule 47)
ALTERNATI3E ANSWER4
3hile there are decisions of the !upreme
Court which hold that if the lawyer failed to
notify the court of his clientJs death, the
court may proceed even without
substitution of heirs and the judgment is
valid and binding on the heirs of the
deceased
(2loren#o vs. Colo,a, &29 SC) (0.!, as
counsel of C, & will assail the judgment
and e9ecution for lac2 of due process.
Parties" 8eat, of a Party" 9ffect (1999)
3hat is the efect of the death of a
party upon a pending action5 67+8
SUGGESTED ANSWER4
D. 3hen the claim in a pending
action is purely personal, the
death of either of the parties
e9tinguishes the claim and
the action is dismissed.
Dondee
2. 3hen the claim is not purely
personal and is not thereby
e9tinguished, the party should
be substituted by his heirs or
his e9ecutor or administrator.
(Sec. 1., Rule 3)
3. &f the action is for recovery of money
arising from contract, e9press or
implied, and the defendant dies before
entry of ;nal judgment in the court in
which the action was pending at the
time of such death, it shall not be
dismissed but shall instead be allowed to
continue until entry of ;nal judgment.
A favorable judgment obtained by the
plaintif shall be enforced in the
manner provided in the rules for
prosecuting claims
against the estate of a deceased
person. (Sec. 2), Rule 3)
Parties" 8eat, of a Party" 9ffect (1999)
3hen A 6buyer8 failed to pay the
remaining balance of the contract price
after it became due and demand- able,
B 6seller8 sued him for collection
before the 0%C. After both parties
submitted their respective evidence,
A perished in a plane
accident. Conse?uently, his heirs
brought an action for the settlement
of his estate and moved for the dismissal
of the collection suit.
D. 3ill you grant the motion5 "9plain.
67+8
7. 3ill your answer be the same if A
died while the case is already on
appeal to the Court of Appeals5
"9plain. 67+8
*. &n the same case, what is the efect
if B died
before the 0%C has rendered
judgment5 67+8
SUGGESTED ANSWER4
D. 'o, because the action will not be
dismissed but shall instead be
allowed to continue until entry of
;nal judgment. 6&d.8
7. 'o. &f A died while the case was
already on appeal in the Court of
Appeals, the case will continue
because there is no entry yet of
*. %he efect is the same. %he
action will not be dismissed but will
be allowed to continue until entry of
Parties" %,ird Party Claim ('((()
(4Ls real property is being attached by the
sherif in a civil action for damages against
.@. (4 claims that he is not a party to
the caseI that his property is not
involved in said caseI and that he is the sole
registered owner of said property. nder
the 0ules of Court, what must (4 do
to prevent the !herif from attaching
his property5 6<+8
SUGGESTED ANSER4
&f the real property has been attached, the
remedy is to ;le a third-party claim. %he
third-party claimant should ma2e an afidavit
of his title to the property
attached, stating the grounds of his title
thereto, and
serve such afidavit upon the sherif
while the latter
has possession of the attached property,
and a copy
thereof upon the attaching party. (Sec.
14, Rule (7) %he third-party claimant
may also intervene or ;le a
separate action to vindicate his claim to
the property involved and secure the
necessary reliefs, such as preliminary
injunction, which will not be
considered as interference with a court
of coordinate jurisdiction.
(9ng v. 5ating, &'9 SC) 26*, F&9/7D!
Parties" %,ird$Party Claim ('((7)
A obtained a money judgment
against B. After the ;nality of
the decision, the court issued a
writ of e9ecution for the
enforcement thereof. Conformably
with the said writ, the sherif
levied upon certain properties
under BJs name. C ;led a third-party
claim over said properties
claiming that B had already
transferred the same to him. A
moved to deny the third-party
claim and to hold B and C
jointly and severally liable to
him for the money judgment
alleging that B had transferred said
properties to C to defraud him 6A8.
After due hearing, the court
denied the third-party claim and
rendered an amended decision
declaring B and C jointly and
severally liable to A for the money
judgment.
&s the ruling of the court correct5
"9plain. 6>+8
SUGGESTED ANSWER4
'#. C has not been properly impleaded
as a party defendant. :e cannot be held
liable for the judgment against A without a
trial. &n fact, since no bond was ;led by B,
the sherif is liable to C for damages. C can
;le a separate action to enforce his third-
party claim. &t is in that suit that B can raise
the ground of fraud against C. :owever,
the e9ecution may proceed where there
is a ;nding that the claim is fraudulent.
(5anongan v. Sa,son, ".. %o. &'0//9,
Ma. 9, 2002!
Petition for Certiorari ('((()
AB mortgaged his property to CD. AB failed
to pay his obligation and CD ;led an action
for foreclosure of mortgage. After trial,
the court issued an #rder granting CDLs
prayer for foreclosure of mortgage and
ordering AB to pay CD the full amount
of the mortgage debt including interest
and other charges not later than D7F
days from date of receipt of the #rder.
AB received the #rder on August DF,
DHHH. 'o other proceeding too2 place
thereafter. #n December 7F, DHHH, AB
tendered the full amount adjudged by the
court to CD but the latter refused to accept
it on the ground that the amount was
tendered beyond the D7F-day period
granted by the court. AB ;led a motion in
the same court praying that CD be directed
to receive the amount tendered by him
on the ground that the #rder does not
comply with the provisions of !ection 7,
0ule KA of the 0ules of Court which give AB
D7F days from entry of judgment, and
Dondee
not from date of receipt of the
#rder. %he court denied his motion on
the ground that the #rder had already
become ;nal and can no longer be
amended to conform with !ection 7,
0ule KA. Aggrieved, AB ;les a
petition for certiorari against the
Court and CD. 3ill the petition for
certiorari prosper5 "9plain. 6<+8
SUGGESTED ANSWER4
Nes. %he court erred in issuing an #rder
granting CDLs prayer for foreclosure of
mortgage and ordering AB to pay CD the
full amount of the mortgage debt including
interest and other charges not later than D7F
days from receipt of the #rder. %he court
should have rendered a judgment which is
appealable. !ince no appeal was ta2en,
the judgment became ;nal on August 7<,
DHHH, which is the date of entry of
judgment. (Sec 2, Rule 3.) :ence, AB
had up to December 7>, DHHH within
which to pay the amount due. (Sec. 2, Rule
.*) %he court gravely abused its
discretion amounting to lac2 or e9cess of
jurisdiction in denying ABLs motion praying
that CD be directed to receive the amount
tendered.
Petition for 1elief - Action for Annulment ('((')
@ay an order denying the probate of
a will still be overturned after the
period to appeal therefrom has
lapsed5 3hy5 6*+8
SUGGESTED ANSWER4
Nes, an order denying the probate of a
will may be overturned after the period
to appeal therefrom has lapsed. A
/"%&%&#' $#0 0".&"$ may be ;led on the
grounds of fraud, accident, mista2e or
e9cusable negligence within a period of
si9ty 6KF8 days after the petitioner learns of
the judgment or ;nal order and not more
than si9 6K8 months after such judgment or
;nal order was entered Fule (/, secs. & N (;
Soriano v.
)si, &00 Phil. 7/* (&9*7!D.
An AC%&#' $#0 A''.@"'% may also
be ;led on the ground of e9trinsic fraud
within four 6>8 years from its
discovery, and if based on lac2 of
jurisdiction, before it is barred by laches
or estoppel.
(Rule 47, secs. 2 6 3)
Petition for 1elief" )n/unction ('((')
A default judgment was rendered by
the 0%C ordering D to pay / a sum of
money. %he judgment became ;nal, but D
;led a petition for relief and obtained a
writ of preliminary injunction staying the
enforcement of the judgment. After hearing,
the 0%C dismissed DLs petition,
whereupon / immediately moved for the
e9ecution of the judgment in his favor.
!hould /Ls motion be granted5 3hy5 6*+8
SUGGESTED ANSWER4
/Ls immediate motion for e9ecution of the
judgment in his favor should be granted
because the dismissal of DLs petition for
relief also dissolves the writ of
preliminary injunction staying the
enforcement of the
judgment, even if the dismissal is not yet
;nal. F"oleC v. 8eoni#as, &07 SC) &/7
(&9/&!D.
Pleadings" Amendment of Comlaint" By 0eave of Court
('((.)
After an answer has been ;led, can
the plaintif amend his complaint,
with leave of court, by changing
entirely the nature of the action5 >+
SUGGESTED ANSWER4
Nes, the present rules allow amendments
substantially altering the nature of the
cause of action. (Sec. 3, Rule 1), 1977
Rules of Ciil !roce"ure; <eirs of
Marcelino Pago3o v. Court of )$$eals, 2/0
SC) /70 F&997D!.
%his should only be true, however,
when the substantial change or alteration
in the cause of action or defense shall
serve the higher interests of
substantial justice and prevent delay
and e?ually promote the laudable objective
of the rules which is to secure a just, speedy
and ine9pensive disposition of every action
and proceeding. 6-alenGuela v. Court of
Appeals, *K* !C0A EEH )7FFD,8.
Pleadings" Amendment of Comlaint" By 0eave
of Court" Prescritive Period ('((()
R, an illegitimate child of N, celebrated
her DAth birthday on @ay 7, DHHK. A
month before her birthday, N died. %he
legitimate family of N refused to
recogniGe R as an illegitimate child of N.
After countless eforts to convince them, R
;led on April 7<, 7FFF an action for
recognition against S, wife of N. After S
;led her answer on August D>, 7FFF, R
;led a motion for leave to ;le an amended
complaint and a motion to admit the
said amended complaint impleading the
three 6*8 legitimate children of N. %he trial
court admitted the amended complaint
on August 77, 7FFF. 3hat is the efect of the
admission of the amended complaint5
:as the action of R prescribed5 "9plain.
6<+8
SUGGESTED ANSWER4
'o. %he action ;led on April 7<, 7FFF is still
within the four-year prescriptive period
which started to run on @ay 7, DHHK. %he
amended complaint impleading the three
legitimate children, though admitted on
August 77, 7FFF beyond the four-year
prescriptive period, retroacts to the date
of ;ling of the original complaint.
Amendments impleading new defendants
retroact to the date of the ;ling of the
complaint because they do not constitute a
new cause of action.
(=erCosa v. Court of )$$eals, 299 SC)
&00 F&99/D!.
6'oteO %he four-year period is based on Article 7A< of the
Civil Code8
ALTERNATI3E ANSWER4
nder the DHHE 0ules of Civil
/rocedure, if an additional defendant
is impleaded in a later pleading, the
action is commenced with regard to him
on the date of the ;ling of such later
pleading, irrespective of whether the
motion for its admission, if necessary, is
denied by the court. (Sec. ( of Rule 1).
Dondee
Conse?uently, the action of R has
prescribed with respect to the three 6*8
legitimate children of N who are
indispensable parties.
ANOT5ER ALTERNATI3E ANSWER4
nder Article DE< of the $amily
Code, the action must be brought
within the lifetime of R if the action is
based on a record of birth or an
admission of ;liation in a public
document or a private
handwritten instrument signed by N. &n
such case, the action of R has not
prescribed.
:owever, if the action is based on
the open and continuous possession of
the status of an illegitimate child, the
action should have been brought during
the lifetime of N. &n such case, the
action of R has prescribed.
Pleadings" Amendment of Comlaint" :atter of 1ig,t
('((7)
#n @ay D7, 7FF<, the plaintif ;led a
complaint in the 0%C of MueGon City
for the collection of /7<F,FFF.FF. %he
defendant ;led a motion to dismiss the
complaint on the ground that the court
had no jurisdiction over the action since the
claimed amount of /7<F,FFF.FF is within the
e9clusive jurisdiction of the @etropolitan
%rial Court, of MueGon City. Before the
court could resolve the motion, the
plaintif, without leave of court, amended
his complaint to allege a new cause of
action consisting in the inclusion of an
additional amount of /7FF,FFF.FF, thereby
increasing his total claim to
/><F,FFF.FFF. %he plaintif thereafter ;led
his opposition to the motion to dismiss,
claiming that the 0%C had jurisdiction,
over his action.
0ule on the motion of the defendant
with reasons. 6>+8
SUGGESTED ANSWER4
%he motion to dismiss should be denied.
Basic is the rule that a motion to dismiss
is not a responsive pleading. Under the
Rules, a pleader may amend his
pleading as a matter of right before the
other party has served his responsive
pleading. (Sec. 2, Rule 1), Rules of
Court) %he court, in allowing the
amendment, would not be acting without
jurisdiction because allowing an amendment
as a matter of right does not re?uire the
e9ercise of discretion. %he court therefore
would not be PactingP and thus, could not
have acted without jurisdiction. &t would have
been diferent had the amendments been
made after a responsive pleading had been
served. %he court then would have been
e9ercising its discretion in allowing or
disallowing the amendment. &t cannot do
so however, because it would be then acting
on an amendment of a complaint over which
it has no jurisdiction. (Sole#a# v. Ma,angun,
".. %o. 86&79/(,
Ma. (0, &96(; "u,a3a. v. Baralin, "..
%o. 86 (06/(, Ma. (&, &977; Pru#ence
ealt. v. C), ".. %o. &&027', March 2&,
&99'!
ALTERNATI3E ANSWER4
%he motion to dismiss should be
granted. (urisdiction
must be conferred by the contents of the
original
complaint. Amendments are not proper
and should
be denied where the court has no
jurisdiction over the original
complaint and the purpose of the
amendment is to confer jurisdiction
on the court.
(osario v. Caran#ang, ".. %o. 86
7076, )$ril 2/, &9**!
3hile a plaintif is entitled to amend
the complaint before a responsive
pleading is served (Sec. 2, Rule 1),
1997 Rules of Ciil !roce"ure;
e,ington +n#ustrial Sales
Cor$oration v. Court of )$$eals,
".. %o. &((6*7, Ma. 29, 2002),
still, a complaint cannot be
amended to confer jurisdiction on a
court where there was none to
begin with.
Pleadings" Amendment of Comlaint" %o
Conform 2C 9vidence ('((?)
During trial, plaintif was able to
present, without objection on the
part of defendant in an ejectment
case, evidence showing that
plaintif 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 ;le.
@ay the corresponding pleading still
be amended to conform to the
evidence5 "9plain. 6<+8
SUGGESTED ANSWER4
Nes. %he 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 plaintif in evidence
without objection on the part of the
defendant. "ven 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. $ailure to amend,
however, does not afect the result of the
trial on these issues. 6!ec. < of 0ule DF8.
A.%"0'A%&-" A'!3"0O
&t depends. &n forcible entry, the motion
may be allowed at the discretion of the
court, the demand having been presented
at the trial without objection on the part
of the defendant. &n unlawful detainer,
however, the demand to vacate is
jurisdictional and since the court did not
ac?uire jurisdiction from the very
beginning, the motion to conform to
the evidence cannot be entertained.
%he amendment cannot be allowed
because it will in efect confer
jurisdiction when there is otherwise no
jurisdiction.
Pleadings" Ans2er" 8efense" Secific 8enial ('((?)
&n his complaint for foreclosure of
mortgage to which was duly attached a
copy of the mortgage deed, plaintif //
alleged inter alia as followsO 6D8 that
defendant DD duly e9ecuted the
mortgage deed,
Dondee
copy of which is Anne9 PAP of the
complaint and made an integral part
thereofI and 678 that to prosecute his
complaint, plaintif contracted a lawyer,
CC, for a fee of /<F.FFF. &n his
answer, defendant alleged, inter alia,
that he had no 2nowledge of the
mortgage deed, and he also denied any
liability for plaintifs contracting with a
lawyer for a fee.
Does defendantJs answer as to
plaintifLs allegation no. D as well as no.
7 suficiently raise an issue of fact5
0eason brie=y. 6<+8
SUGGESTED ANSWER4
As to plaintifs allegation no. D,
defendant does not suficiently raise an
issue of fact, because he cannot allege
lac2 of 2nowledge of the mortgage deed
since he should have personal 2nowledge as
to whether he signed it or not and
because he did not deny under oath the
genuineness and due e9ecution of the
mortgage deed, which is an actionable
document. As to plaintifLs allegation no.
7, defendant did not properly deny
liability as to plaintifs contracting with a
lawyer for a fee. :e did not even deny for
lac2 of 2nowledge. (Sec. 1) of Rule *).
Pleadings" Certification Against &orum S,oing ('((()
As counsel for A, B, C and D, Atty. RN
prepared a complaint for recovery of
possession of a parcel of land against
S. Before ;lling the complaint, RN
discovered that his clients were not
available to sign the certi;cation of
non-forum shopping. %o avoid further
delays in the ;ling of the complaint,
RN signed the certi;cation and
immediately ;led the complaint in
court. &s RN justi;ed in signing the
certi;cation5 3hy5 6<+8
SUGGESTED ANSWER4
'#, counsel cannot sign the anti-forum
shopping certi;cation because it must
be e9ecuted by the Tplaintif or
principal partyU himself (Sec. *, ule 7;
47cor$iCo v. :niversit. of Baguio, (06 SC)
'97, F&999D!, since the rule re?uires
personal 2nowledge by the party
e9ecuting the certi;cation, '."!!
counsel gives a good reason why he is not
able to secure his clientsL signatures and
shows that his clients will be deprived
of substantial justice (9rtiC v. Court
of )$$eals, 299 SC) 70/, F&99/D! or
unless he is authoriGed to sign it by his
clients through a special power of attorney.
Pleadings" Counterclaim against t,e Counsel of t,e
Plaintiff ('((?)
/R ;led a suit for damages against DN. &n his
answer, DN incorporated a counterclaim for
damages against /R and AC, counsel for plaintif
in said suit, alleging in said counterclaim,
inter alia, that AC, as such counsel,
maliciously induced /R to bring the suit
against DN despite ACJs 2nowledge of its
utter lac2 of factual and legal basis. &n due
time, AC ;led 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 plaintifs counsel. &s the
counterclaim
of DN compulsory or not5
!hould
ACJs motion
to
dismiss the counterclaim be granted
or not5 0eason. 6<+8
SUGGESTED ANSWER4
Nes. %he counterclaim of DN 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 partyJs claim and
does not re?uire for its
adjudication the presence of third
parties of whom the court
cannot ac?uire jurisdiction.(Sec. 7
of Rule .).
%he motion to dismiss of
plaintifs counsel should not be
granted because bringing in
plaintifs counsel as a defendant
in the counterclaim is authoriGed
by the 0ules. 3here it is
re?uired for the grant of
complete relief in the
determination of the
counterclaim, the court shall
order the defendantJs counsel to
be brought in since jurisdiction over
him can be obtained. (Sec. &2 of
ule 6; )urelio v. Court of )$$eals,
&96 SC) 67' F&99'D!. :ere, the
counterclaim was against both
the plaintif and his lawyer who
allegedly maliciously induced the
plaintif to ;le the suit.
ALTERNATI3E ANSWER4
%he counterclaim should be
dismissed because it is not a compulsory
counterclaim. 3hen a lawyer ;les a case
for a client, he should not be sued
on a counterclaim in the very same case
he has ;led as counsel. &t should be ;led
in a separate and distinct civil action.
(ChaveC v. San#igan3a.an, &9( SC) 2/2
F&99&D!
Pleadings" :otions" Bill of Particulars ('((.)
D. 3hen can a bill of particulars be
availed of5
7. 3hat is the efect of non-compliance
with the
order of a bill of particulars5 >+
SUGGESTED ANSWER4
1. Before responding to a pleading, a
party may move for a bill or particulars
of any matter which is not averred
with suficient de;niteness or
particularity to enable him properly to
prepare his responsive pleading. &f the
pleading is a reply, the motion must be
;led within ten 6DF8 days from service
thereof. (Sec. 1 of Rule 12)
2. &f the order is not complied with, the
court may order the stri2ing out
of the pleading or the portions
thereof to which the order was
directed or ma2e such other order
as it deems just. (Sec. 4 of Rule 12)
Pleadings" 1ely" 9ffect of =on$&iling of 1ely ('((()
R ;les a complaint in the 0%C for the
recovery of a sum of money with damages
against N. N ;les his answer denying
liability under the contract of sale and
praying for the dismissal of the
complaint on the ground of lac2 of
cause of action because the contract of
sale was superseded by a contract of lease,
Dondee
e9ecuted and signed by R and N two
wee2s after the contract of sale was
e9ecuted. %he contract of lease was
attached to the answer. R does not
;le a reply. 3hat is the efect of the
non-;ling of a reply5 "9plain. 6*+8
SUGGESTED ANSWER4
A reply is generally optional. &f it is not ;led,
the new matters alleged in the
answer are deemed controverted. (Sec.
1) of Rule .). :owever, since the contract
of lease attached to the answer is the basis
of the defense, by not ;ling a reply denying
under oath the genuineness and due
e9ecution of said contract, the plaintif
is deemed to have admitted the
genuineness and due e9ecution thereof.
(Secs. 7 an# /
ule /; 5ori3io v. Bi#in, &(2 SC) &62
F&9/*D!.
Pre/udicial Auestion" 9/ectment vs. Secific
Performance ('((()
BB ;les a complaint for ejectment in the
@%Con the ground of non-payment of
rentals against ((. After two days, ((
;les in the 0%C a complaint against BB
for speci;c performance to enforce
the option to purchase the parcel of
land subject of the ejectment case.
3hat is the efect of ((Ls action
on BBLs complaint5 "9plain. 6<+8
SUGGESTED ANSWER4
%here is no efect. %he ejectment case
involves possession de facto only. %he
action to enforce the option to purchase
will not suspend the action of ejectment
for non-payment of rentals. (Kill,an )uto
Su$$l. Cor$. v. Court of )$$eals, 20/ SC)
&0/ F&992D!.
Pre$%rial" 1e<uirements ('((1)
.ilio ;led a complaint in the @unicipal
%rial Court of .anuGa for the recovery
of a sum against (uan. %he latter
;led his answer to the complaint serving
a copy thereof on .ilio.
After the ;ling of the answer of (uan,
whose duty is it to have the case set for
pre-trial5 3hy5 6<+8
SUGGESTED ANSWER4
After the ;ling of the answer of
(uan, the /.A&'%&$$ has the duty to
promptly move e9 parte that the case
be set for pre-trial. (Sec. 1, Rule1*).
%he reason is that it is the plaintif who
2nows when the last pleading has been
;led and it is the plaintif who has the
duty to prosecute.
ALTERNATI3E ANSWER4
&n the event the plaintif ;les a reply, his
duty to move that the case be set for pre-
trial arises after the reply has been served
and ;led.
Provisional 1emedies (1999)
3hat are the provisional remedies under
the rules5 67+8
SUGGESTED ANSWER4
%he provisional remedies under the
rules are preliminary attachment,
preliminary injunction, receivership,
replevin, and support pendente lite. (Rules (7
to .1, Rules of Court).
(Sec. 2 of
Rule
66
Provisional 1emedies" Attac,ment (1999)
&n a case, the property of an
incompetent under guardianship
was in custodia legis. Can it be
attached5 "9plain. 67+8
SUGGESTED ANSWER4
Although the property of an
incompetent under guardianship is in
custodia legis, it may be attached as in
fact it is provided that in such case, a
copy of the writ of attachment shall be
;led with the proper court and notice
of the attachment served upon
the custodian of such property. (Sec. 7,
l%st 8%r., Rule (7)
Provisional 1emedies" Attac,ment (1999)
@ay damages be claimed by a
party prejudiced by a wrongful
attachment even if the judgment is
adverse to him5 "9plain. 67+8
SUGGESTED ANSWER4
Nes, damages may be claimed by a
party prejudiced by a wrongful
attachment even if the judgment is
adverse to him. %his is authoriGed by
the 0ules. A claim, for damages may
be made on account of improper,
irregular or e9cessive attachment,
which shall be heard with notice to the
adverse party and his surety or
sureties. (Sec. 20, ule *7; -avellana v.
0. 9.
PlaCa 4nter$rises +nc., (2 SC) 2/&.!
Provisional 1emedies" Attac,ment ('((1)
@ay a writ of preliminary
attachment be issued e9- parte5
Brie=y state the reason6s8 for
your answer. 6*+8
SUGGESTED ANSWER4
Nes, an order of attachment may be
issued e9-parte
or upon motion with notice and hearing.
(7) %he reason why the order may be
issued e9 parte isO that re?uiring 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. (Min#anao Savings an#
8oan )ssociation, +nc. v.
Court of )$$eals, &72 SC) '/0!.
Provisional 1emedies" Attac,ment ('((7)
4aty ;led an action against %yrone for
collection of the sum of /D @illion in the
0%C, with an e9-parte application for a
writ of preliminary attachment. pon
posting of an attachment bond, the court
granted the application and issued a
writ of preliminary attachment.
Apprehensive that %yrone might withdraw
his savings deposit with the ban2, the
sherif immediately served a notice of
garnishment on the ban2 to implement
the writ of preliminary attachment. %he
following day, the sherif proceeded to
%yroneJs house and served him the
summons, with copies of the complaint
containing the application for writ of
preliminary attachment, 4atyJs afidavit,
order of attachment, writ of preliminary
attachment and attachment bond.
3ithin ;fteen 6D<8 days from service
of the summons, %yrone ;led a motion
to dismiss and to
Dondee
dissolve the writ of preliminary
attachment on the following groundsO
6i8 the court did not ac?uire
jurisdiction over his person because
the writ was served ahead of the
summonsI 6ii8 the writ was
improperly implementedI and 6iii8
said writ was improvidently issued
because the obligation in ?uestion
was already fully paid. 0esolve the
motion with reasons. 6>+8
SUGGESTED ANSWER4
%he motion to dismiss and to
dissolve the writ of preliminary
attachment should be denied.
6D8 %he fact that the writ of attachment
was served ahead of the summons did not
afect the jurisdiction of the court over his
person. &t ma2es the writ, unenforceable.
(Sec. (, Rule. (7) :owever, all that is
needed to be done is to re-serve the
writ. (9nate v.
)3rogar, "M. %o. &97(9(, 2e3ruar. 2(,
&9/*!
678 %he writ was improperly
implemented. !erving a notice of
garnishment, particularly before
summons is served, is not proper. &t
should be a copy of the writ of
attachment that should be served
on the defendant, and a notice that
the ban2 deposits are attached
pursuant to the writ. (Sec. 7["], Rule (7)
6*8 %he writ was improvidently issued if
indeed it can be shown that the obligation
was already fully paid. %he writ is only
ancillary to the main action. (Sec. 13,
%he alleged payment of the
account cannot,
serve as a ground for resolving the
improvident issuance of the writ,
because this matter delves into the
merits of the case, and re?uires full-
blown trial. /ayment, however, serves
as a ground for a motion to dismiss.
Provisional 1emedies" Attac,ment vs.
3arnis,ment (1999)
Distinguish attachment from
garnishment. 67+8
SUGGESTED ANSWER4
Attachment and garnishment are
distinguished from each other as
followsO A%%AC:@"'% is a provisional
remedy that efects a levy on property of a
party as security for the satisfaction of any
judgment that may be recovered, while
1A0'&!:@"'% is a levy on debts due the
judgment obligor or defendant and other
credits, including ban2 deposits, royalties
and other personal property not capable
of manual delivery under a writ of
e9ecution or a writ of attachment.
Provisional 1emedies" )n/unction ('((1)
@ay a writ of preliminary injunction
be issued e9- parte5 3hy5 6*+8
SUGGESTED ANSWER4
'o, a writ of preliminary injunction may
not be issued e9 parte. As provided in
the 0ules, no preliminary injunction
shall be granted without hearing and
prior notice to the party or person sought to
be enjoined. (Sec. ( of Rule (*) %he reason
is that a
Rules of Ciil
!roce"ure)
(Sec. 4, Rule
(* 1997
Rule
(7)
3)4
[1917]).
(:%"%r%n3 .
S%nt%m%ri%, 37 !0il.
preliminary injunction may cause
grave and irreparable injury to the
party enjoined.
Provisional 1emedies" )n/unction ('((.)
Can a suit for injunction be aptly
;led with the !upreme Court to
stop the /resident of the
/hilippines from entering into a
peace agreement with the 'ational
Democratic $ront5 6>+8
SUGGESTED ANSWER4
'o, a suit for injunction cannot aptly be ;led
with the !upreme Court to stop the
/resident of the /hilippines from
entering into a peace agreement with the
'ational Democratic $ront, which is a
purely political ?uestion.
%he /resident of the
/hilippines is
immune from suit.
Provisional 1emedies" )n/unctions" Ancillary 1emedy
vs. :ain Action ('((+)
Distinguish between injunction as an
ancillary remedy and injunction as a
main action. 67.<+8
SUGGESTED ANSWER4
&njunction as an ancillary remedy
refers to the preliminary injunction which
re?uires the e9istence of a pending
principal caseI while injunction as a main
action refers to the principal case itself that
prays for the remedy of permanently
restraining the adverse party from doing
or not doing the act complained of.
Provisional 1emedies" )n/unctions" )ssuance 2Cout
Bond ('((+)
@ay a 0egional %rial Court issue
injunction without bond5 67+8
SUGGESTED ANSWER4
Nes, if the injunction that is issued is
a ;nal injunction. 1enerally,
however, preliminary injunction
cannot issue without bond unless
e9empted by the trial court (Sec. 4[b] of Rule
(*).
Provisional 1emedies" )n/unctions" 1e<uisites ('((+)
3hat are the re?uisites for the issuance of
6a8 a writ of preliminary injunctionI and
6b8 a ;nal writ of
injunction5
0e?uisites for the issuance of aO
SUGGESTED ANSWER4
a. 3rit of /reliminary &njunction
are V
6D8 A veri;ed complaint showingI
678 %he e9istence of a right in esseI
6*8 -iolation or threat of violation of such
rightI
6>8 Damages or injuries sustained or that
will be sustained by reason of such
violationI
6<8 'otice to all parties of raBe and of
hearingI
6K8 :earing on the applicationI
6E8 $iling of an appropriate bond and
service thereof.
SUGGESTED ANSWER4
b. 3hile a ;nal writ of injunction may be
rendered by judgment after trial,
showing applicant to be entitled to the
writ (Sec. 9, Rule (* 1997 Rules of Ciil
!roce"ure).
Provisional 1emedies" 1eceivers,i ('((1)
(oa?uin ;led a complaint against (ose
for the foreclosure of a mortgage of a
furniture factory with a large number of
machinery and e?uipment. During the
pendency of the foreclosure suit, (oa?uin
learned from reliable sources that (ose
was ?uietly and gradually disposing of
some of his machinery and e?uipment to
a businessman friend who was also
engaged in furniture manufacturing such
that from con;rmed reports (oa?uin
gathered, the machinery and e?uipment
left with (ose were no longer suficient
to answer for the latterLs mortgage
indebtedness. &n the meantime
judgment was rendered by the court in
favor of (oa?uin but the same is not yet
;nal.
4nowing what (ose has been doing.
&f you were (oa?uinLs lawyer, what
action would you ta2e to preserve
whatever remaining machinery
and e?uipment are left with (ose5 3hy5
6<+8
SUGGESTED ANSWER4
%o preserve whatever remaining
machinery and e?uipment are left with
(ose, (oa?uinLs lawyer should ;le a veri;ed
application for the appointment by the court
of one or more receivers. %he 0ules
provide that receivership is proper in
an action by the mortgagee for the
foreclosure of a mortgage when it appears
that the property is in danger of being
wasted or dissipated or materially injured
and that its value is probably insuficient to
discharge the mortgage debt.
(Sec. 1 of Rule (9).
Provisional 1emedies" 1elevin (1999)
3hat is 0eplevin5 67+8
SUGGESTED ANSWER4
0eplevin or delivery of personal property
consists in the delivery, by order of
the court, of personal property by the
defendant to the plaintif, upon the ;ling
of a bond. (Calo v. ol#an, 76 Phil. ''*
F&9'6D!
Provisional 1emedies" Suort Pendente 0ite (1999)
Before the 0%C, A was charged with
rape of his DK- year old daughter.
During the pendency of the case, the
daughter gave birth to a child
allegedly as a conse?uence of the
rape. %hereafter, she as2ed the
accused to support the child, and
when he refused, the former ;led a
petition for support pendente lite. %he
accused, however, insists that he cannot
be made to give such support
arguing that there is as yet no
;nding as to his guilt. 3ould you agree
with the trial court if it denied the
application for support pendente lite5
"9plain. 67+8
SUGGESTED ANSWER4
'o. %he provisional remedy of support
pendente lite may be granted by the 0%C in
the criminal action for rape. &n criminal
actions where the civil liability includes
support for the ofspring as a
conse?uence of the crime and the civil
aspect thereof has not been
waived, reserved or instituted prior
to its ;ling, the accused may be
ordered to provide support pendente
lite to the child born to the ofended
party allegedly because of the crime.
(Sec. . of Rule .1.)
Provisional 1emedies" Suort Pendente 0ite ('((1)
@odesto was accused of seduction by
-irginia, a poor, unemployed young girl,
who has a child by @odesto. -irginia
was in dire need of pecuniary assistance
to 2eep her child, not to say of herself,
alive. %he criminal case is still pending
in court and although the civil liability
aspect of the crime has not been waived or
reserved for a separate civil action, the
trial for the case was foreseen to ta2e
two long years because of the heavily
clogged court calendar before the
judgment may be rendered.
&f you were the lawyer of -irginia, what
action should you ta2e to help -irginia
in the meantime especially with the
problem of feeding the child5 6<+8
SUGGESTED ANSWER4
%o help -irginia in the meantime, her
lawyer should apply for Su88ort
!en"ente +ite as provided in the
0ules. &n criminal actions where the
civil liability included support for the
ofspring as a conse?uence of the crime
and the civil aspect thereof has not been
waived or reserved for a separate
civil action, the accused may be
ordered to provide support pendent
elite to the child born to the ofended
party. (Sec. . of Rule .1)
Provisional 1emedies" %1* ('((1)
An application for a writ of preliminary
injunction with a prayer for a temporary
restraining order is included in a
complaint and ;led in a multi-sala 0%C
consisting of Branches D,7,* and >. Being
urgent in nature, the "9ecutive (udge,
who was sitting in Branch D, upon the
;ling of the aforesaid application
immediately raBed the case in the
presence of the judges of Branches 7,* and
>. %he case was raBed to Branch > and
judge thereof immediately issued a
temporary restraining order.
&s the temporary restraining order valid5
3hy5 6<+8
SUGGESTED ANSWER4
'o. &t is only the "9ecutive (udge who
can issue immediately a temporary
restraining order efective only for
seventy-two 6E78 hours from issuance. 'o
other (udge has the right or power
to issue a temporary restraining order
e9 parte. %he (udge to whom the case
is assigned will then conduct a
summary hearing to determine
whether the temporary restraining order
shall be e9tended, but in no case beyond
7F days, including the original E7- hour
period. (Sec. ( of Rule (*)
ALTERNATI3E ANSWER4
%he temporary restraining order is not
valid because the ?uestion does not
state that the matter is of e9treme
urgency and the applicant will sufer
grave injustice and irreparable injury.
(Sec. ( of Rule (*)
Dondee
Provisional 1emedies" %1* ('((+)
De;ne a temporary restraining order
6%0#8. 67+8
SUGGESTED ANSWER4
A temporary restraining order is an
order issued to restrain the opposite
party and to maintain the status ?uo
until a hearing for determining the
propriety of granting a preliminary
injunction (Sec. 4[c] %n" ["], Rule
(*,1997 Rules of Ciil !roce"ure).
Provisional 1emedies" %1* vs. Status Auo *rder ('((+)
Diferentiate a %0# from a status ?uo
order. 67+8
SUGGESTED ANSWER4
A status ?uo order 6!M#8 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 %0# is
only good for 7F days if issued by the 0%CI
KF days if issued by the CAI until further
notice if issued by the !C. %he !M# is
without any prescriptive period and may
be issued without a bond. A %0# dies a
natural death after the allowable periodI
the !M# does not. A %0# is provisional.
!M# lasts until revo2ed. A %0# is not
e9tendible, but the !M# may be subject to
agreement of the parties.
Provisional 1emedies" %1*" CA Justice 8et. ('((+)
@ay a justice of a Division of the Court
of Appeals issue a %0#5 67+8
SUGGESTED ANSWER4
Nes, a justice of a division of the Court
of Appeals may issue a %0#, as authoriGed
under 0ule <A and by !ection <, 0ule &-
of the &0CA which additionally re?uires
that the action shall be submitted on the
ne9t wor2ing day to the absent members
of the division for the rati;cation,
modi;cation or recall (<eirs of the late
-ustice -ose B.8. e.es v. Court of
)$$eals, ".. %os. &(*'2*626, %ove,3er
&', 2000!.
Provisional 1emedies" %1*" 8uration ('((+)
3hat is the duration of a %0#
issued by the "9ecutive (udge of a
0egional %rial Court5 67+8
SUGGESTED ANSWER4
&n cases of e9treme urgency, when the
applicant will sufer grave injustice
and irreparable injury, the duration
of a %0# issued e9 parte by an
"9ecutive (udge of a 0egional %rial
Court is E7 hours (2n" 8%r. of Sec. (, Rule
(* 1997 Rules of Ciil !roce"ure). &n the
e9ercise of his regular functions over
cases assigned to his sala, an "9ecutive
(udge may issue a %0# for a duration not
e9ceeding a total of 7F days.
1eglementary Period" Sulemental Pleadings ('((()
%he 0%C rendered judgment against !%, copy
of which was received by his counsel on
$ebruary 7A, 7FFF. #n @arch DF, 7FFF, !%,
through counsel, ;led a motion for
reconsideration of the decision with notice to
the Cler2 of Court submitting the motion for
the consideration of the court. #n @arch D<,
7FFF, realiGing that the @otion lac2ed a
notice of hearing, !%Ls counsel ;led a
supplemental pleading.
66
3as the motion for 0econsideration
;led within the reglementary
period5 "9plain. 6<+8
SUGGESTED ANSWER4
Nes, because the last day of ;ling a
motion for reconsideration was
@arch D< if $ebruary had 7A days or
@arch DK if $ebruary had 7H days.
Although the original motion for
reconsideration was defective because
it lac2ed a notice of hearing, the defect
was cured on time by its ;ling
on @arch D< of a supplemental
pleading, provided that motion was set
for hearing and served on the
adverse party at least three 6*8 days
before the date of hearing.(Sec. 4, Rule
1().
ALTERNATI3E ANSWER4
!ince the supplemental pleading
was not set for hearing, it did
not cure the defect of the
original motion.
1emedies" Aeal to SC" Aeals to CA ('((')
a8 3hat are the modes of appeal
to the !upreme Court5 67+8
b8 Comment on a proposal to amend
0ule D77, !ection 76b8, in relation
to !ection *6c8, of the 0evised
0ules of Criminal /rocedure to
provide for appeal to the Court
of Appeals from the decisions of
the 0%C in criminal cases, where the
penalty imposed is reclusion
perpetua or life imprisonment,
subject to the right of the accused
to appeal to the !upreme Court.
6*+8
SUGGESTED ANSWER4
A. %he modes of appeal to the !upreme
Court areO 6a8 A//"A. BN C"0%&#0A0& on
pure ?uestions of law under 0ule ><
through a petition for review on
certiorariI and 6b8 #0D&'A0N A//"A. 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 ofenses
committed on the same occasion or which
arose out of the same occurrence that
gave rise to the more serious ofense.
(Rule 122, sec. 3) Convictions imposing the
death penalty are elevated through
automatic review.
B. %here is no constitutional
objection to providing in the 0ules of
Court for an appeal to the Court of
Appeals from the decisions of the 0%C
in criminal cases where the penalty
imposed is reclusion perpetua or life
imprisonment subject to the right of the
accused to appeal to the !upreme Court,
because it does not deprive the
!upreme Court of the right to e9ercise
ultimate review of the judgments in
such cases.
1emedies" Aeal" 1%C to CA (1999)
a. 3hen is an appeal from the 0%C to
the Court of Appeals deemed
perfected5 67+W
b. RRR received a copy of the 0%C decision
on (une H, DHHHI NNN received it on the
ne9t day, (une DF, DHHH. RRR ;led a
'otice of Appeal on (une D<, DHHH. %he
parties entered into a compromise on
Dondee
(une DK, DHHH. #n (une D*, DHHH, NNN,
who did not appeal, ;led with the 0%C
a motion for approval of the
Compromise Agreement. RRR changed
his mind and opposed the motion on the
ground that the 0%C has no more
jurisdiction. 0ule on the motion
assuming that the records have not yet
been forwarded to the CA. 67+8
SUGGESTED ANSWER4
a. An appeal from the 0%C to the
Court of Appeals is deemed perfected
as to the appellant upon the ;ling of a
notice of appeal in the 0%C in due time
or within the reglementary period of
appeal. An appeal by record on
appeal is deemed perfected as to the
appellant with respect to the
subject matter thereof upon the
approval of the record on appeal
;led in due time. (Sec. 9, Rule 41)
b. %he contention of RRR that the 0%C has
no more jurisdiction over the case is not
correct because at the time that the
motion to approve the compromise had
been ;led, the period of appeal of NNN
had not yet e9pired. Besides, even if that
period had already e9pired, the records of
the case had not yet been forwarded to
the Court of Appeals. %he rules provide
that in appeals by notice of appeal, the court
loses jurisdiction over the case upon
the perfection of the appeals ;led in due
time and the
e9piration of the time to appeal of the
other parties.
(Sec. 9, t0ir" 8%r., Rule 41)
%he rules also provide that prior to the
transmittal of the record, the court
may, among others, approve
compromises. (Sec. 9, 1ft0 8%r., Rule 41)
6'oteO (une D*, the date of the ;ling
of the motion for approval of the
Compromise Agreement, appears to be a
clerical error8
1emedies" Aeal" 1ule ?7 vs. 1ule +7 (1999)
a8 Distinguish a petition for certiorari
as a mode of appeal from a special
civil action for certiorari. 67+8
b8 @ay a party resort to certiorari when
appeal is
still available5 "9plain. 67+8
SUGGESTED ANSWER4
a. A /"%&%&#' $#0 0"-&"3 #'
C"0%&#0A0& as a mode of appeal may
be distinguished from a special civil
action for certiorari in that the petition for
certiorari as a mode of appeal is governed by
0ule >< and is ;led from a judgment or ;nal
order of the 0%C, the !andiganbayan or the
Court of Appeals, within ;fteen 6D<8 days from
notice of the judgment appealed from or of the
denial of the motion for new trial or
reconsideration ;led in due time on ?uestions of
law only (Secs. 1 %n" 2)I !/"C&A. C&-&. AC%&#'
$#0 C"0%&#0A0& is governed by 0ule K<
and is ;led to annul or modify judgments,
orders or resolutions rendered or issued
without or in e9cess of jurisdiction or with
grave abuse of discretion tantamount to
lac2 or e9cess of jurisdiction, when
there is no appeal nor any plain, speedy
and ade?uate
remedy in the ordinary course of law, to
be ;led
within si9ty 6KF8 days from notice of the
judgment,
order or resolution subject of the
petition.
6!ecs.
D
and >.8
ADDITIONAL ANSWER4
D8 &n appeal by certiorari under 0ule ><,
the petitioner and respondent are the
original parties to the action and the
lower court is not impleaded. &n
certiorari, under 0ule K<, the lower
court is impleaded.
78 &n appeal by certiorari, the
;ling of a motion for
reconsideration is not re?uired,
while in the special civil action
of certiorari, such a motion is
generally re?uired.
SUGGESTED ANSWER4
b. '#, because as a general rule,
certiorari is proper if there is no
appeal (Sec. 1 of Rule .(.) :owever, if
appeal is not a speedy and ade?uate
remedy, certiorari may be resorted
to. (4chaus v. Court of )$$eals, &99
SC) (/&.! Certiorari is
sanctioned, even if appeal is
available, on the basis of a patent,
capricious and whimsical e9ercise
of discretion by a trial judge as
when an appeal will not promptly
relieve petitioner from the
injurious efects of the disputed
order
(=as?ueC vs. o3illa6)lenio, 27& SC)
67!
1emedies" 5oid 8ecision" Proer 1emedy ('((?)
After plaintif in an ordinary civil
action before the 0%CI SS has
completed presentation of his evidence,
defendant without prior leave of
court moved for dismissal of
plaintifs complaint for insuficiency
of plaintifLs evidence. After due
hearing of the motion and the
opposition thereto, the court issued an
order, reading as followsO %he
Court hereby grants defendantJs
motion to dismiss and accordingly
orders the dismissal of plaintifLs
complaint, with the costs ta9ed
against him. &t is so ordered.P &s the
order of dismissal valid5 @ay plaintif
properly ta2e an appeal5 0eason. 6<+8
SUGGESTED ANSWER4
%he order or decision is void because it
does not state ;ndings of fact and of
law, as re?uired by !ec. D>, Article
-&&& of the Constitution and !ec. D, 0ule
*K. Being void, appeal is not
available. %he proper remedy is
certiorari under 0ule K<.
ANOT5ER ANSWER4
"ither certiorari or ordinary appeal
may be resorted to on the ground that
the judgment is void. Appeal, in fact,
may be the more e9pedient remedy.
ALTERNATI3E ANSWER4
Nes. %he order of dismissal for
insuficiency of the plaintifs evidence
is valid upon defendantJs motion to
dismiss even without prior leave of
court. (Sec. 1 of Rule 33).
Nes, plaintif may properly ta2e an appeal
because the dismissal of the complaint is
a ;nal and appealable order. :owever, if
the order of dismissal is reversed
on appeal, the plaintif is deemed to
have waived his right to present
evidence. 6&d.8
Secial Civil Action" 9/ectment (1997)
#n DF (anuary DHHF, R leased the
warehouse of A under a lease contract
with a period of ;ve years. #n FA (une
DHHK, A ;led an unlawful detainer
case against R without a prior demand
for R to vacate the premises.
6a8 Can R contest his ejectment on the
ground that there was no prior
demand for him to vacate the
premises5
6b8 &n case the @unicipal %rial Court
renders judgment in favor of A, is the
judgment immediately
e9ecutory5
SUGGESTED ANSWER4
6a8 Nes. R can contest his ejectment on
the ground that there was no prior
demand to vacate the premises.
6Sec. 2 of ule 70; Casilan vs.5o,assi
l0 SC) 26&; +esaca vs.Cuevas. &2* SC)
((*8.
6b8 Nes, because the judgment of the
@unicipal %rial Court against the
defendant R is immediately e9ecutory
upon motion unless an appeal has been
perfected, a supersedeas bond has been ;led
and the periodic deposits of current
rentals. &f any, as determined by the
judgment will be made with the appellate
court. (Sec. * of former Rule 7); Sec. 19 of new
Rule 7)).
ALTERNATI3E ANSWER4
6a8 Nes, R can contest his ejectment on
the ground that since he continued
enjoying the thing leased for ;fteen days
after the termination of the lease on
(anuary H, DHH< with the ac?uiescence of
the lessor without a notice to the
contrary, there was an &@/.&"D '"3
."A!". (-rt. 1.7). Ciil Co"e).
Secial Civil Action" 9/ectment (199!)
&n an action for unlawful detainer in
the @unicipal %rial Court 6@%C8,
defendant R raised in his Answer the
defense that plaintif A is not the real
owner of the house subject of the suit. R
;led a counterclaim against A for the
collection of a debt of /AF,FFF plus
accrued interest of /D<,FFF and
attorneyJs fees of /7F,FFF.
D. &s RJs defense tenable5 )*+,
7. Does the @%C have jurisdiction
over the counterclaim5 )7+,
SUGGESTED ANSWER4O
5i3. 129, %s
%men"e".)
D. 'o. RJs defense is not tenable if the
action is ;led by a lessor against a
lessee. :owever, if the right of
possession of the plaintif depends
on his ownership then the defense is
tenable.
7. %he counterclaim is within the
jurisdiction of the @unicipal %rial Court
which does not e9ceed /DFF,FFF,
because the principal demand is /AF,FFF,
e9clusive of interest and attorneyJs fees.
(Sec. 33, 5.!.
:owever, inasmuch as all
actions of
forcible entry and unlawful detainer are
subject to
summary procedure and since the
counterclaim is only permissive, it
cannot be entertained by the
@unicipal Court. (Reise" Rule on Summ%r$
!roce"ure.)
Secial Civil Action" &oreclosure ('((.)
A borrowed from the Development Ban2
of the /hilippines 6DB/8 the amount of /D
million secured by the titled land of his
friend B who, however, did not assume
personal liability for the loan. A defaulted
and DB/ ;led an action for judicial
foreclosure of the real estate mortgage
impleading A and B as defendants. &n
due course, the court rendered
judgment directing A to pay the outstanding
account of /D.< million 6principal plus
interest8 to the ban2. 'o appeal was ta2en
by A on the Decision within the
reglementary period. A failed to pay the
judgment debt within the period speci;ed
in the decision. Conse?uently, the court
ordered the foreclosure sale of the
mortgaged land. &n that foreclosure sale,
the land was sold to the DB/ for /D.7
million. %he sale was subse?uently
con;rmed by the court, and the
con;rmation of the sale was registered
with the 0egistry of Deeds on F< (anuary
7FF7.
#n DF (anuary 7FF*, the ban2 ;led
an e9-parte motion with the court for
the issuance of a writ of possession
to oust B from the land. &t also ;led
a de;ciency claim for /AFF,FFF.FF
against A and B. the de;ciency claim
was opposed by A and B.
6a80esolve the motion for the issuance of
a writ of possession.
6b8 0esolve the de;ciency claim of
the ban2. K+
SUGGESTED ANSWER4
6a8 &n judicial foreclosure by ban2s such
as DB/, 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 6or
registration of the sale8. :owever,
the purchaser at the auction sale has
the right to obtain a writ of
possession after the ;nality of the
order con;rming the sale. (Sec. 3 of
Rule .*; Sec. 47 of R- *791. ;0e ,ener%l
5%n4in3 +%w of 2)))). %he motion for writ
of possession, however, cannot be
;led e9 parte. %here must be a
notice of hearing.
6b8 %he de;ciency claim of the ban2 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.
Secial Civil Action" Petition for Certiorari ('((')
%he defendant was declared in default in the
0%C for his failure to ;le an answer to a
complaint for a sum of money. #n the
basis of the plaintifLs e9 parte
presentation of evidence, judgment by
default was rendered against the
defendant. %he default judgment was served
on the defendant on #ctober D, 7FFD. #n
#ctober DF, 7FFD, he ;les a veri;ed motion
to lift the
Dondee
order of default and to set aside the
judgment. &n his motion, the defendant
alleged that, immediately upon receipt of
the summon, he saw the plaintif and
confronted him with his receipt
evidencing his payment and that the
plaintif assured him that he would
instruct his lawyer to withdraw the
complaint. %he trial court denied the
defendantLs motion because it was not
accompanied by an afidavit of merit. %he
defendant ;led a special civil action for
certiorari under 0ule K< challenging the
denial order.
A. &s certiorari under 0ule K< the
proper remedy5 3hy5 67+8
B. Did the trial court abuse its discretion
or act without or in e9cess of its jurisdiction
in denying the defendantLs motion to lift
the order of default
judgment5 3hy5 6*+8
SUGGESTED ANSWER4
A. %he petition for certiorari
under 0ule K< ;led by the defendant is
the proper remedy because appeal is
not a plain, speedy and ade?uate remedy
in the ordinary course of law. &n appeal,
the defendant in default can only
?uestion the decision in the light of the
evidence of the plaintif. %he defendant
cannot invo2e the receipt to prove
payment of his obligation to the
plaintif.
ALTERNATI3E ANSWER4
A. nder ordinary circumstances, the proper
remedy of a party wrongly declared in
default is either to appeal from the
judgment by default or ;le a petition for
relief from judgment. F-ao, +nc. v. Court of
)$$eals,
2*& SC) (9& (&99*!
SUGGESTED ANSWER4
B. Nes, the trial court gravely abused its
discretion or acted without or in e9cess of
jurisdiction in denying the defendantLs
motion because it was not
accompanied by a separate afidavit of
merit. &n his veri;ed 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 plaintif and
confronted him with his receipt showing
payment and that the plaintif assured
him that he would instruct his lawyer to
withdraw the complaint. !ince the good
defense of the defendant was already
incorporated in the veri;ed motion, there
was not need for a separate afidavit of
merit. FCa$uC v. Court of )$$eals, 2(( SC)
'7& (&99'!; Mago v. Court of )$$eals, (0(
SC) 600 (&999!D.
Secial Civil Action" Auo Barranto ('((1)
A group of businessmen formed an
association in Cebu City calling itself Cars
C. to distribute C sell cars in said city. &t did
not incorporate itself under the law nor did
it have any government permit or license to
conduct its business as such. %he
!olicitor 1eneral ;led before a 0%C in
@anila a veri;ed petition for ?uo
warranto ?uestioning and see2ing to
stop the operations of Cars Co. %he
latter ;led a motion to dismiss the
petition on the ground of improper venue
claiming that its main ofice and
operations are in Cebu City and not in
@anila.
&s the contention of Cars Co. correct5
3hy5 6<+8
SUGGESTED ANSWER4
'o. As e9pressly provided in the
0ules, when the !olicitor 1eneral
commences the action for ?uo
warranto, it may be brought in a 0%C in
the City of @anila, as in this case, in the
Court of Appeals or in the !upreme
Court. (Sec. 7 of Rule ..)
Secial Civil Actions" :andamus ('((+)
&n DHHK, Congress passed 0epublic Act
'o. ADAH, otherwise 2nown as the -oterJs
0egistration Act of DHHK, providing for
computeriGation of elections. /ursuant
thereto, the C#@"."C approved the
-oterJs 0egistration and &denti;cation
!ystem 6-0&!8 /roject. &t issued invitations
to pre-?ualify and bid for the project. After
the public bidding, $oto2ina was declared
the winning bidder with a bid of /K billion
and was issued a 'otice of Award. But
C#@"."C Chairman 1ener 1o objected
to the award on the ground that under the
Appropriations Act, the budget for the
C#@"."CJs moderniGation is only /D
billion. :e announced to the public that
the -0&! project has been set aside. %wo
Commissioners sided with Chairman 1o, but
the majority voted to uphold the contract.
@eanwhile, $oto2ina ;led with the 0%C a
petition for mandamus compel the
C#@"."C to implement the contract. %he
#fice of the !olicitor 1eneral 6#!18,
representing Chairman 1o, opposed the
petition on the ground that mandamus does
not lie to enforce contractual
obligations. During the proceedings,
the majority Commissioners ;led a
manifestation that Chairman 1o was not
authoriGed by the C#@"."C "n Banc to
oppose the petition.
+s a $etition for ,an#a,us an
a$$ro$riate re,e#. to enforce
contractual o3ligations; (*H!
SUGGESTED ANSWER4
'o, the petition for mandamus is not an
appropriate remedy because it is not
available to enforce a contractual
obligation. @andamus is directed only to
ministerial acts, directing or commanding a
person to do a legal duty (C9M484C v.
IuiAano6Pa#illa, "..
%o. &*&992, Se$te,3er &/, 2002; Sec. (,
ule 6*!.
Summons
!even years after the entry of judgment,
the plaintif ;led an action for its
revival. Can the defendant
successfully oppose the revival of the
judgment by contending that it is null
and void because the 0%C- @anila did
not ac?uire jurisdiction over his
person5 3hy5 6*+8
SUGGESTED ANSWER4
%he 0%C-@anila should deny the motion
because it is in violation of the rule that
no judgment obligor shall be re?uired to
appear before a court, for the purpose of
e9amination concerning his property and
Dondee
income, outside the province or city
in which such obligor resides. &n this
case the judgment obligor resides in
Bulacan. (Rule 39, sec.3.).
Summons (1999)
a8 3hat is the efect of absence of
summons on the judgment rendered
in the case5 67+8
b8 3hen additional defendant is
impleaded in the action, is it
necessary that summons be served
upon him5 "9plain. 67+8
c8 &s summons re?uired to be
served upon a defendant who was
substituted for the deceased5
"9plain. 67+8
d8 A sued RR Corporation 6RRC8, a
corporation organiGed under
/hilippine laws, for speci;c
performance when the latter failed to
deliver %- shirts to the former as
stipulated in their contract of sale.
!ummons was served on the
corporationJs cashier and director.
3ould you consider service of
summons on either oficer
suficient5 "9plain. 67+8
SUGGESTED ANSWER4
a8 %he efect of the absence of summons
on a judgment would ma2e the
judgment null and void because the
court would not have jurisdiction
over the person of the defendant, but if
the defendant voluntarily appeared
before the court, his appearance is
e?uivalent to the service of summons.
(Sec. 2), Rule 14)
b8 Nes. !ummons must be served on an
additional defendant impleaded in
the action so that the court can
ac?uire jurisdiction over him, unless
he ma2es a voluntary appearance.
c8 'o. A defendant who was
substituted for the deceased need not
be served with summons because it
is the court which orders him as the
legal representative of the deceased to
appear and substitute the deceased.
(Sec. 1. of Rule 3.)
d8 !ummons on a domestic corporation
through its cashier and director are
not valid under the present rules.
(Sec. 11, Rule 14) %hey have been
removed from those who can be
served with summons for a domestic
corporation. Cashier was substituted by
treasurer. 6&d.8
Summons" Substituted Service ('((?)
!ummons was issued by the @@ 0%C and
actually received on time by defendant from his
wife at their residence. %he sherif earlier that
day had delivered the summons to her at
said residence because defendant was not
home at the time. %he sherifs return or proof
of service ;led 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 sherifs return or proof
of service
does not show that the sherif
;rst made a genuine attempt to
serve the summons on
defendant personally before
serving it thru his wife.
&s the motion to dismiss
meritorious5 3hat is the purpose
of summons and by whom may it be
served5 "9plain. 6<+8
SUGGESTED ANSWER4
%he motion to dismiss is not
meritorious because the defendant
actually received the summons on
time from his wife. !ervice on
the wife was suficient.
(Boticano v. Chu, &'/ SC) *'& F&9/7D!.
&t is the duty of the court to loo2 into
the suficiency of the service. %he
sherifs negligence in not stating in
his return that he ;rst made a
genuine efort to serve the
summons on the defendant, should
not prejudice the plaintif. (Ma$a v.
Court of )$$eals, 2&' SC)
'&71&992!. %he purpose of the
summons is to inform the defendant
of the complaint ;led against him and
to enable the court to ac?uire
jurisdiction over his person. &t
maybe served by the sherif or his
deputy or any person authoriGed by
the court.
ALTERNATI3E ANSWER4
Nes. %he motion to dismiss is
meritorious. !ubstituted service
cannot be efected unless the sherifs
return shows that he made a genuine
attempt to efect personal service on the
husband.
Summons" 5alidity of Service" 9ffects ('((+)
%ina 1uerrero ;led with ;led the
0egional %rial Court of Binan, .aguna, a
complaint for sum of money amounting to
/D @illion against Carlos Corro. %he
complaint alleges, among others, that
Carlos borrowed from %ina 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 .inda, his
secretary. :owever, Carlos failed to ;le
an answer to the complaint within the
D<-day reglementary period. :ence, %ina
;led with the court a motion to declare
Carlos in default and to allow her to present
evidence e9 parte. $ive days thereafter,
Carlos ;led his veri;ed answer to the
complaint, denying under oath the
genuineness and due e9ecution of the
promissory note and contending that he
has fully paid his loan with interest at
D7+ per annum.
&. Kas the su,,ons vali#l.
serve# on Carlos;
(2.*H!
ALTERNATI3E ANSWER4
%he summons was not validly served on
Carlos because it was served on his
secretary and the re?uirements for
substituted service have not been
followed, such as a showing that eforts
have been e9erted to serve the same on
Carlos and such attempt has failed despite
due diligence (Manotoc v. C), "..
%o. &(097', )ugust &6, 2006; )ngPing
v. C), ".. %o. &269'7, -ul. &*, &999!.
ALTERNATI3E ANSWER4
Dondee
!ervice of !ummons on Carlos was
validly served upon him if the 0eturn
will show that it was done through
!ubstituted !ervice because the defendant
can not be served personally within a
reasonable time despite diligent eforts
made to serve the summons personally.
.inda, the secretary of defendant Carlos,
must li2ewise be shown to be a competent
person in charge of defendantJs ofice
where summons was served (Sec. 7, Rule
14).
2. +f .ou were the Au#ge, will .ou
grant 5inaMs ,otion to #eclare
Carlos in #efault; (2.*H!
ALTERNATI3E ANSWER4
&f & were the judge, & will not grant
%inaJs motion to declare Carlos in
default because summons was not
properly served and anyway, a veri;ed
answer to the complaint had already
been ;led. @oreover, it is better to
decide a case on the merits rather than
on technicality.
ALTERNATI3E ANSWER4
Nes. &f it was shown that summons
was validly served, and that the
motion to declare Carlos in default
was duly furnished on Carlos, and
after conducting a hearing on the same
motion.
5enue" )mroer 5enue" Comulsory Counterclaim
(199!)
A, a resident of .ingayen, /angasinan
sued R, a resident of !an $ernando
.a nion in the 0%C 60%C8 of MueGon
City for the collection of a debt of /D
million.
R did not ;le a motion to dismiss for
improper venue but ;led his answer
raising therein improper venue as an
afirmative defense. :e also ;led a
counterclaim for /AF,FFF against A for
attorneyJs fees and e9penses for
litigation. R moved for a preliminary
hearing on said afirmative defense.
$or his part, A ;led a motion to
dismiss the counterclaim for lac2
of jurisdiction.
D. 0ule on the afirmative defense of
improper venue. )*+,
7. 0ule on the motion to dismiss the
counterclaim on the ground of lac2
of jurisdiction over the
subject matter. )7+,
SUGGESTED ANSWER4
D. %here is improper venue. %he case for a
sum of money, which was ;led in MueGon City, is
a personal action. &t must be ;led in the
residence of either the plaintif, which is in
/angasinan, or of the defendant, which is in
!an $ernando, .a nion. (Sec. 2 of Rule 4)
%he fact that it was not raised in a motion to
dismiss does not matter because the rule that
if improper venue is not raised in a motion
to dismiss it is deemed waived was removed
from the DHHE 0ules of Civil /rocedure. %he
new 0ules provide that if no motion to dismiss
has been ;led, any of the grounds for dismissal
may be pleaded as an afirmative defense
in the answer. (Sec. . of Rule 1..)
(Sec, 2 of
Rule 4).
7. %he motion to dismiss on the
ground of lac2 of
jurisdiction over the subject matter
should be denied.
%he counterclaim for attorneyJs fees and
e9penses of
litigation is a compulsory
counterclaim because it
necessarily arose out of and is
connected with the complaint. &n
an original action before the 0%C,
the counterclaim may be
considered compulsory
regardless of the amount. (Sec. 7 of
Rule .)
5enue" Personal Actions (1997)
R, a resident of Angeles City, borrowed
/*FF,FFF.FF from A, a resident of
/asay City. &n the loan agreement,
the parties stipulated that Pthe
parties agree to sue and be sued in the
City of @anila.P
a8 &n case of non-payment of the
loan, can A ;le his complaint
to collect the loan from R in
Angeles City5
b8 !uppose the parties did not
stipulate in the loan agreement
as to the venue, where can A ;le
his complaint against R5
c8 !uppose the parties stipulated in
their loan agreement that Pvenue
for all suits arising from this
contract shall be the courts in
MueGon City,P
can A ;le his complaint against R
in /asay City5
SUGGESTED ANSWER4
6a8 Nes, because the stipulation in the
loan agreement that Pthe parties agree to
sue and be sued in the City of @anilaP
does not ma2e @anila the Pe9clusive
venue thereof.P (Sec, 4 of Rule 4, %s %men"e"
b$ Circul%r 'o. 13< 9(= Sec. 4 of new Rule 4)
:ence, A can ;le his complaint in
Angeles City where he resides,
6b8 &f the parties did not stipulate on
the venue, A can ;le his complaint
either in Angeles City where he resides
or in /asay City where R resides, 6&d8.
6c8 Nes, because the wording of the
stipulation does
not ma2e MueGon City the e9clusive
venue.
(Phil3anEing v. 5ensuan. 2(0 SC)
'&(; :ni,asters Conglo,eration, +nc. v.
C). C6&&96*7, 2e3. 7, &997!
ALTERNATI3E ANSWER4
6c8 'o. &f the parties stipulated that the
venue Pshall be in the courts in MueGon
CityP, A cannot ;le his complaint in /asay
City because the use of the word PshallP
ma2es MueGon City the e9clusive
venue thereof. (<oechst Phili$$ines vs.
5orres, /( SC) 297!.
CRIMINAL PROCEDURE
Ac<uittal" 9ffect ('((')
Delia sued -ictor for personal injuries
which she allegedly sustained when she
was struc2 by a car driven by -ictor. @ay
the court receive in evidence, over proper
and timely objection by Delia, a certi;ed
true copy of a judgment of ac?uittal in a
criminal prosecution charging -ictor with
hit-and-run driving in connection with
DeliaLs injuries5 3hy5 6*+8
SUGGESTED ANSWER4
Dondee
&f the judgment of ac?uittal in the
criminal case ;nds that the act or
omission from which the civil liability
may arise does not e9ist, the court may
receive it in evidence over the
objection by Delia. [Rule 111, sec. 2,
l%st 8%r%3r%80].
ALTERNATI3E ANSWER4
&f the judgment of ac?uittal 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 re?uires only a
preponderance of the evidence. (-rt.
29, Ciil Co"e).
Actions" BP''" Civil Action deemed included ('((1)
!aturnino ;led a criminal action against
Ale9 for the latterLs bouncing chec2.
#n the date of the hearing after the
arraignment, !aturnino manifested to
the court that he is reserving his
right to ;le a separate civil action.
%he court allowed !aturnino to ;le a
civil action separately and proceeded to
hear the criminal case. Ale9 ;led a
motion for reconsideration
contending that the civil action is
deemed included in the criminal case.
%he court reconsidered its order and
ruled that !aturnino could not ;le a
separate action.
&s the courtLs order granting the
motion for reconsideration correct5
3hy5 6<+8
SUGGESTED ANSWER4
Nes, the courtLs order granting the
motion for reconsideration is correct.
%he 0ules provide that the criminal
action for violation of B./. Blg. 77 shall
be deemed to include the corresponding
civil action, and that no reservation to
;le such civil action separately shall be
allowed. [Sec. 1(b), Rule 111, Reise" Rules
of Crimin%l !roce"ure]
Actions" BP''" 8emurrer to 9vidence ('((.)
&n an action for violation of Batas /ambansa
Big. 77, the court granted the accusedLs
demurrer to evidence which he ;led
without leave of court. Although he was
ac?uitted of the crime charged, he, however,
was re?uired by the court to pay the private
complainant the face value of the chec2.
%he accused ;led a @otion of
0econsideration regarding the order to pay
the face value of the chec2 on the following
groundsO
a8 the demurrer to evidence applied
only too the criminal aspect of the
caseI and
b8 at the very least, he was entitled
to adduce controverting evidence
on the civil liability.
0esolve the @otion for 0econsideration.
6K+8
SUGGESTED ANSWER4
6a8 %he @otion for 0econsideration
should be denied. %he 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 /ambansa Blg.
77 included the corresponding civil
action. (Sec. 1(b) of Rule 111).
6b8 %he accused was not entitled
to adduce controverting evidence on the
civil liability, because
he ;led his demurrer to evidence
without leave of court. (Sec. 23 of Rule
119).
Actions" Commencement of an Action" 8ouble
Jeoardy ('((?)
!/#D C'C ;led with the @%C in MueGon
City 6@e%C-MC8 a sworn written
statement duly subscribed by him,
charging 010 6an actual resident of Cebu
City8 with the ofense of slight physical
injuries allegedly in=icted on !/! 6an
actual resident of MueGon City8. %he
(udge of the branch to which the case was
raBed thereupon issued an order
declaring that the case shall be governed by
the 0ule on !ummary /rocedure in
criminal cases. !oon thereafter, the
(udge ordered the dismissal of the case for
the reason that it was not
commenced by information, as re?uired by
said 0ule.
!ometime later, based on the same facts
giving rise to the slight physical
injuries case, the City /rosecutor
;led with the same @e%C-MC an
information for attempted homicide
against the same 010. &n due time,
before arraignment, 010 moved to
?uash the information on the ground
of double jeopardy and after due
hearing, the (udge granted his motion.
3as the dismissal of the complaint
for slight physical injuries proper5 3as
the grant of the motion to ?uash the
attempted homicide information correct5
0eason 6<+8
SUGGESTED ANSWER4
Nes, the dismissal of the complaint for
slight physical injuries is proper
because in @etropolitan @anila and in
chartered cities, the case has to be
commenced only by information. (Sec.
11, Reise" Rule on Summ%r$
!roce"ure).
'o, the grant of the motion to ?uash the
attempted homicide information on
the ground of double jeopardy was
not correct, because there was no valid
prosecution for slight physical injuries.
Actions" 8iscretionary Po2er of &iscal (1999)
A ;led with the #fice of the $iscal a
Complaint for estafa against B. After
the preliminary investigation, the $iscal
dismissed the Complaint for lac2 of
merit. @ay the $iscal be compelled by
mandamus to ;le the case in court5
"9plain. 67+8
SUGGESTED ANSWER4
'o. %he public prosecutor may not be
compelled by mandamus to ;le the
case in court because the
determination of probable cause is
within the discretion of the prosecutor.
%he remedy is an appeal to the
!ecretary of (ustice. (Sec. 4 Rule 112.)
Actions" )n/unction (1999)
3ill injunction lie to restrain the
commencement of a criminal action5
"9plain. 67+8
SUGGESTED ANSWER4
As a general rule, injunction will not lie
to restrain a criminal prosecution
e9ceptO
Dondee
a8 %o aford ade?uate
protection to the
constitutional rights of the accusedI
b8 3hen necessary for the orderly
administration of justice or to
avoid oppression or multiplicity of
actionsI
c8 3hen double jeopardy is clearly
apparentI
d8 3here the charges are
manifestly false and motivated by
the lust for vengeanceI
e8 3here there is clearly no prima facie
case against the accused and a
motion to ?uash on that
ground has been denied.
(See cases cite# in o3erts, -r., vs.
Court of )$$eals, 2*' SC) (07
F&996D an# BrocEa v. 4nrile, &92 SC)
&/( F&990D.!
Arrest" Barrantless Arrest" Preliminary
)nvestigation ('((?)
AR swindled 0N in the amount of /DF,FFF
sometime in mid-7FF*. #n the strength of
the sworn statement given by 0N
personally to !/#D (uan 0amos
sometime in mid-7FF>, and without
securing a warrant, the police oficer
arrested AR. $orthwith the police oficer
;led with the City /rosecutor of @anila a
complaint for estafa supported by 0NPs
sworn statement and other documentary
evidence. After due in?uest, the prosecutor
;led the re?uisite information with the @@
0%C. 'o preliminary investigation was
conducted either before or after the ;ling
of the information and the accused at no
time as2ed for such an investigation.
:owever, before arraignment, the accused
moved to ?uash the information on the
ground that the prosecutor sufered from
a want of authority to ;le the information
because of his failure to conduct a
preliminary investigation before ;ling the
information, as re?uired by the 0ules of
Court. &s the warrantless arrest of AR valid5
&s he entitled to a preliminary investigation
before the ;ling of the information5
"9plain. 6<+8
SUGGESTED ANSWER4
'o. %he warrantless arrest is not
valid because the alleged ofense has
not just been committed. %he crime
was allegedly committed one year
before the arrest. (Sec. ( (b) of Rule 113).
Nes, he is entitled to a
preliminary investigation because he
was not lawfully arrested without
a warrant (See Sec. 7 of Rule 112). :e
can move for a reinvestigation.
ALTERNATI3E ANSWER4
:e is not entitled to a preliminary
investigation because the penalty for estafa
is the sum of /DF,FFF does not e9ceed >
years and 7 months. nder !ec. D, second
par., 0ule DD7, a preliminary investigation
is not re?uired. ('ote= ;0e 8en%lt$ is not
st%te" in t0e >uestion.)
Arrest" Barrantless Arrests - Searc,es (1997)
A was 2illed by B during a ?uarrel over a
hostess in a nightclub. %wo days after the
incident, and upon complaint of the
widow of A, the police arrested B
(,o s. Court of -88e%ls. 2).
SCR- 13*).
113)
.
(Sec. (,
Rule
without a warrant of arrest and
searched his house without a search
warrant.
a8 Can the gun used by B in shooting A,
which was seiGed during the
search of the house of B, be
admitted in evidence5
b8 &s the arrest of B legal5
c8 nder the circumstances, can B be
convicted of
homicide5
SUGGESTED ANSWER4
6a8 'o. %he gun seiGed during the
search of the house of B without a search
warrant is not admissible in evidence.
(Secs. 2 %n" 3[2], -rt. /// of Constitution).
@oreover, the search was not an
incident to a lawful arrest of a person
under !ec. D7 of 0ule D7K.
6b8 'o. A warrantless arrest re?uires that
the crime has in fact just been
committed and the police arresting has
personal 2nowledge of facts that the
person to be arrested has committed it.
:ere, the crime has not just been
committed
since a period of two days had already
lapsed, and the police arresting has no
such personal 2nowledge because he
was not present when the incident
happened.
6c8 Nes. %he gun is not
indispensable in the conviction of
A because the court may rely on
testimonial or other evidence.
Arrest" Barrantless Arrests - SeiDures ('((.)
&n a buy-bust operation, the police operatives
arrested the accused and seiGed from
him a sachet of shabu and an unlicensed
;rearm. %he accused was charged in two
&nformations, one for violation of the
TDangerous Drug ActU, as amended, and
another for illegal possession of ;rearms.
%he accused ;led an action for
recovery of the ;rearm in another
court against the police oficers with
an application for the issuance of a
writ of replevin. :e alleged in his
Complaint that he was a military
informer who had been issued a
written authority to carry said
;rearm. %he police oficers moved to
dismiss the complaint on the ground
that the subject ;rearm was in
custodia legis. %he court denied the
motion and instead issued the writ of
replevin.
6a8 3as the seiGure of the ;rearm
valid5
6b83as the denial of the motion to
dismiss proper5
K+
SUGGESTED ANSWER4
6a8 Nes, the seiGure of the ;rearm was valid
because it was seiGed in the course of a
valid arrest in a buy-bust operation. (Sec.
12 %n" 13 of Rule 12.) A search warrant
was not necessary. (Peo$le v. SalaCar, 266
SC) 607
F&997D!.
6b8 %he denial of the motion to
dismiss was not proper. %he court had
no authority to issue the writ of replevin
whether the ;rearm was in custodia
legis
Dondee
or not. %he motion to recover the
;rearm should be ;led in the court
where the criminal action is
pending.
Arrest" Barrantless Arrests" *b/ection ('((()
$1 was arrested without a warrant
by policemen while he was wal2ing
in a busy street. After preliminary
investigation, he was charged with
rape and the corresponding
information was ;led in the 0%C. #n
arraignment, he pleaded not guilty. %rial
on the merits ensued. %he court
rendered judgment convicting him.
#n appeal, $1 claims that the
judgment is void because he was
illegally arrested. &f you were the
!olicitor 1eneral, counsel for the
/eople of the /hilippines, how would you
refute said claim5 6<+8
SUGGESTED ANSWER4
Any objection to the illegality of the
arrest of the accused without a warrant is
deemed waived when he pleaded not guilty
at the arraignment without raising the
?uestion. % is too late to complain about
a warrantless arrest after trial is
commenced and completed and a
judgment of conviction rendered against
the accused. (Peo$le v. Ca3iles, 2/' SC)
&99,
F&999D!
Bail ('((')
D was charged with murder, a capital
ofense. After arraignment, he
applied for bail. %he 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 DLs guilt was strong
for purposes of bail. &s the ruling
correct5 3hy5 6*+8
SUGGESTED ANSWER4
'o, the prosecution is only re?uired
to present as much evidence as is
necessary to determine whether the
evidence of DLs guilt is strong for
purposes of bail.(Rule 114, sec. *).
Bail" Aeal (199!)
&n an information charging them of
@urder, policemen A, B and C were
convicted of :omicide. A appealed from the
decision but B and C did not. B started
serving his sentence but C escaped and
is at large. &n the Court of Appeals, A
applied for bail but was denied. $inally, the
Court of Appeals rendered a decision ac?uitting
A on the ground that the evidence pointed to the
'/A as the 2illers of the victim.
D. 3as the Court of AppealJs denial
of AJs application for bail proper5 )7+,
7. Can B and C be bene;ted by the decision
of the
Court of Appeals5 )*+,
SUGGESTED ANSWER4
D, Nes, the Court of Appeals properly denied
AJs application for bail. %he court had the
discretion to do so. Although A was convicted of
homicide only, since he was charged with a
capital ofense, on appeal
Crimin%l
!roce"ure.)
(Sec. 11 [%]. Rule 122,
Rules of
66
he could be convicted of the capital
ofense. (93osa
vs. Court of )$$eals, 266 SC) 2/&.!
ALTERNATI3E ANSWER4
nder Circular 'o. 7-H7, A is
entitled to bail because he was
convicted of homicide and hence the
evidence of guilt of murder is not
strong.
SUGGESTED ANSWER4
7. B, who did not appeal, can be
bene;ted by the decision of the Court
of Appeals which is favorable
and applicable to him.
%he bene;t will also
apply to C even
if his appeal is dismissed because of
his escape.
Bail" Alication" 5enue ('((')
&f an information was ;led in
the 0%C-@anila charging D with
homicide and he was arrested in
MueGon City, in what court or
courts may he apply for bail5
"9plain. 6*+8
SUGGESTED ANSWER4
D may apply for bail in the 0%C-
@anila where the information
was ;led or in the 0%C-MueGon
City where he was arrested, or if
no judge, thereof is available,
with any metropolitan trial judge,
municipal trial judge or municipal
circuit trial judge therein. (Rule 114,
sec. 17).
Bail" &orms of Bail (1999)
&n what forms may bail be given5
67+8
SUGGESTED ANSWER4
Bail may be given by a corporate
surety, or through a property bond,
cash deposit or recogniGance.
Bail" :atter of 1ig,t (1999)
3hen the accused is entitled as a
matter of right to bail, may the
Court refuse to grant him bail on
the ground that there e9ists a high
degree of probability that he will
abscond or escape5 "9plain. 67+8
SUGGESTED ANSWER4
&f bail is a matter of right, it cannot
be denied on the ground that there
e9ists a high degree of probability
that the accused will abscond or
escape. 3hat the court can do is
to increase the amount of the
bail. #ne of the guidelines that the
judge may use in ;9ing a reasonable
amount of bail is the probability of the
accused appearing in trial.
Bail" :atter of 1ig,t vs. :atter of 8iscretion (1999)
3hen is bail a matter of right and when
is it a matter of discretion5 67+8
SUGGESTED ANSWER4
Khen Bail is a ,atter of rightB
All persons in custody shall 6a8 before
or after conviction by the metropolitan
and municipal trial courts, and 6b8 before
conviction by the 0%C of an ofense not
punishable by death, reclusion perpetua
or life imprisonment, be admitted to bail as a
matter of right, with suficient sureties,
or be released on recogniGance as
prescribed by law or 0ule DD>. (Sec. 4, Rule
114, Rules of Court, %s %men"e" b$ Circul%r 'o.
12<94.)
Khen 3ail is a ,atter of #iscretionB
pon conviction by the 0%C of an
ofense not punishable by death,
reclusion perpetua or life
imprisonment, on application of the
accused. &f the penalty of
imprisonment e9ceeds si9 years but
not more than 7F years, bail shall be
denied upon a showing by the
prosecution, with notice to the
accused, of the following or
other similar circumstancesO
D. %hat the accused is a recidivist,
?uasi-re-cidivist or habitual
delin?uent, or has committed the
crime aggravated by the
circumstance of reiterationI
7. %hat the accused is found to have
previously escaped from legal
con;nement, evaded sentence, or
has violated the conditions of his
bail without valid justi;cationI
*. %hat the accused committed the
ofense while on probation, parole,
or under conditional pardonI
>. %hat the circumstances of the
accused or his case indicate the
probability of =ight if released on
bailI or
<. %hat there is undue ris2 that during
the pendency of the appeal, the
accused may commit another
crime. 6!ec. D, &d.8
Bail" :atter of 1ig,t vs. :atter of 8iscretion ('((+)
3hen is bail a matter of right and when
is it a matter of discretion5 6<+8
SUGGESTED ANSWER4
Bail is a matter of right 6a8 before or
after conviction by the inferior courtsI
6b8 before conviction by the 0%C of
an ofense not punishable by death,
reclusion perpetua or life
imprisonment., when the evidence of
guilt is not strong (Sec. 4, Rule 114,
2))) Rules of Crimin%l !roce"ure).
Bail is discretionaryO pon conviction by
the 0%C of an ofense not
punishable by death, reclusion
perpetua or life imprisonment (Sec. (,
Rule 114, 2))) Rules of Crimin%l !roce"ure).
Bail" Bitness Posting Bail (1999)
@ay the Court re?uire a witness to post
bail5 "9plain your answer. 67+8
SUGGESTED ANSWER4
Nes. %he court may re?uire a witness to
post bail if he is a material witness and
bail is needed to secure his appearance. %he
rules provide that when the court is
satis;ed, upon proof or oath, that a material
witness will not testify when re?uired, it
may, upon motion of either party, order
the witness to post bail in such sum as
may be deemed proper. pon refusal to post
bail, the court shall commit him to
prison until he complies or is legally
discharged after his testimony is ta2en. (Sec.
., Rule 119)
Comlaint vs. )nformation (1999)
Distinguish a Complaint from &nformation.
67+8
SUGGESTED ANSWER4
&n criminal procedure, a complaint is a
sworn written
statement charging a person with
an ofense,
subscribed by the ofended party, any peace
oficer or
other peace oficer charged with the
enforcement of
the law
violated.
(Sec. 3, Rule
11), 19*(
Rules of
Crimin%l
!roce"ure);
while an
informati
on
is
an
accusation
writing charging a person with an
ofense subscribed by the
prosecutor and ;led with the court.
(Sec. 4, /".)
8emurrer to 9vidence" Contract of Carriage ('((?)
AR, a @a2ati-bound paying passenger
of /B, 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 truc2 that happened
while the bus was still travelling on
"D!A towards @a2ati. %he foregoing
facts, among others, were duly
established on evidence-in-chief by the
plaintif %N, sole heir of AR, in %NLs
action against the subject common
carrier for breach of contract of
carriage. After %N had rested his
case, the common carrier ;led a
demurrer to evidence, contending
that plaintifLs evidence is
insuficient because it did not show
6D8 that defendant was negligent
and 678 that such negligence was
the pro9imate cause of the collision.
!hould the court grant or deny
defendantJs demurrer to evidence5
0eason brie=y. 6<+8
SUGGESTED ANSWER4
'o. %he court should not grant defendantJs
demurrer to evidence because the case is
for breach of contract of carriage. /roof
that the defendant was negligent and that
such negligence was the pro9imate cause of
the collision is not re?uired. ()rticles
&&70 an# 220&,
Civil Co#e; (Men#oCa v. Phil. )irlines, +nc.,
90 Phil. /(6 F&9*2D; Batangas
5rans$ortation Co. v. Cagui,3al, 22
SC)&7& : 96/D; )3eto v. P)8, &&*
SC) '/9 F&9/2D; )3oitiC v. Court of
)$$eals, &29 SC) 9* F&9/'D!.
8emurrer to 9vidence" 2Co 0eave of Court (199!)
$acing a charge of @urder, R ;led a
petition for bail. %he petition was
opposed by the prosecution but after
hearing the court granted bail to R. #n
the ;rst scheduled hearing on the
merits, the prosecution manifested
that it was not adducing
additional evidence and that it was
resting its case. R ;led a demurrer
to evidence without leave of court
but it was denied by the court.
D. Did the court have the discretion
to deny the demurrer to evidence
under the circumstances mentioned
above5 67+8
7. &f the answer to the preceding ?uestion is
in the afirmative, can R adduce evidence
in his defense after the denial of his
demurrer to evidence5 )D+,
*. 3ithout further proceeding and on
the sole basis of the evidence of the
prosecution, can the court legally
convict R for @urder5 67+8
SUGGESTED ANSWER4
D. Nes. %he Court had the discretion to
deny the demurrer to the evidence,
because although the
Dondee
evidence presented by the prosecution
at the hearing for bail was not strong,
without any evidence for the defense, it
could be suficient for conviction.
7. 'o. Because he ;led the
demurrer to the
evidence without leave.
!roce"ure.) :owever, the trial court should
in?uire as to why the accused ;led the
demurrer without leave and whether his
lawyer 2new that the efect of ;ling it
without leave is to waive the
presentation of the
evidence for the accused.
62.!
*. Nes. 3ithout any evidence from the
accused, the prima facie evidence of
the prosecution has been converted to
proof beyond reasonable doubt.
ALTERNATI3E ANSWER4
&f the evidence of guilt is not strong
and beyond reasonable doubt then
the court cannot legally convict R
for murder.
8emurrer to 9vidence" 2Co 0eave of Court ('((1)
Carlos, the accused in a theft case, ;led
a demurrer to evidence without leave of
court. %he court denied the demurrer
to evidence and Carlos moved to
present his evidence. %he court
denied CarlosL motion to present
evidence and instead judgment on
the basis of the evidence for the
prosecution.
3as the court correct in preventing
Carlos from presenting his evidence
and rendering judgment on the basis
of the evidence for the prosecution5
3hy5 6<+8
SUGGESTED ANSWER4
Nes, because the demurrer to the evidence
was ;led without leave of court. %he 0ules
provide that when the demurrer to
evidence is ;led without leave of court, the
accused waives the right to present
evidence and submits the case for judgment
on the basis of the evidence for the prosecution.
(Sec. 23 of Rule 119, Reise" Rules of Crimin%l
!roce"ure)
8emurrer to 9vidence" 2Co 0eave of Court ('((?)
%he information for illegal possession of ;rearm
;led against the accused speci;cally alleged that
he had no license or permit to possess the
caliber .>< pistol mentioned therein. &n its
evidence-in-chief, the prosecution established
the fact that the subject ;rearm was
lawfully seiGed by the police from the
possession of the accused, that is, while the pistol
was tuc2ed at his waist in plain view, without the
accused being able to present any license or
permit to possess the ;rearm. %he prosecution
on such evidence rested its case and within a
period of ;ve days therefrom, the accused
;led 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 ac?uitted of the ofense charged.
(Peo$le vs. 2ores, 269
SC)
(Sec. 1(, Rule 119, Rules
of Crimin%l
%he 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. &n due time, the court
rendered judgment ;nding the
accused guilty of the ofense
charged beyond reasonable doubt
and accordingly imposing on him the
penalty prescribed therefor. &s the
judgment of the trial court valid and
proper5 0eason. 6<+8
SUGGESTED ANSWER4
Nes. %he judgment of the trial court
is valid. %he accused did not as2 for
leave to ;le the demurrer to evidence.
:e is deemed to have waived his
right to present evidence. (Sec. 2( of
ule &&9; Peo$le v. 2lores,
269 SC) 62 F&997D; Bernar#o v.
Court of )$$eals, 27/ SC) 7/2
F&997D. :owever, the judgment is not
proper or is erroneous because there
was no showing from the proper
ofice li2e the $irearms "9plosive nit
of the /hilippine 'ational /olice that
the accused has a permit to own or
possess the ;rearm, which is fatal to
the conviction of the accused.
(Mallari v. Court of
)$$eals NPeo$le,26* SC)
'*6F&996D!.
8ismissal" &ailure to Prosecute ('((.)
3hen a criminal case is dismissed
on nolle 8rose>ui, can it later be
re;lled5 6>+8
SUGGESTED ANSWER4
As a general rule, when a criminal
case is dismissed on nolle 8rose>ui before
the accused is placed on trial and before
he is called on to plead, this is not
e?uivalent to an ac?uittal and does
not bar a subse?uent prosecution for the
same ofense. ("alveC v. Court of )$$eals,
2(7 SC) 6/* F&99'D!.
8ismissal" Provisional 8ismissal ('((.)
Before the arraignment for the crime of
murder, the private complainant
e9ecuted an Afidavit of Desistance
stating that she was not sure if the accused
was the man who 2illed her husband.
%he public prosecutor ;led a @otion to
Muash the &nformation on the ground
that with private complainantLs
desistance, he did not have evidence
suficient to convict the accused. #n F7
(anuary 7FFD, the court without further
proceedings granted the motion and
provisionally dismissed the case. %he
accused gave his e9press consent to the
provisional dismissal of the case. %he
ofended party was noti;ed of the dismissal
but she refused to give her consent.
!ubse?uently, the private
complainant urged the public
prosecutor to re;le the murder charge
because the accused failed to pay the
consideration which he had promised
for the e9ecution of the Afidavit of
Desistance. %he public prosecutor
obliged and re;led the murder charge
against the accused on FD $ebruary
7FF*, the accused ;led a @otion
to Muash the &nformation on the
ground that the provisional
dismissal of the case had already
become permanent. 6K+8
Dondee
a8 3as the provisional dismissal of the
case proper5
b8 0esolve the @otion to Muash.
SUGGESTED ANSWER4
6a8 %he provisional dismissal of the
case was proper because the accused
gave his e9press consent thereto and
the ofended party was noti;ed. &t
was not necessary for the ofended
party to give her consent thereto. (Sec.
* of Rule 117).
6b8 %he motion to ?uash the information
should be denied because, while the
provisional dismissal had already become
permanent, the prescriptive period for
;ling the murder charge had not
prescribed. %here was no double jeopardy
because the ;rst case was dismissed
before the accused had pleaded to the
charge. (Sec. 7 of Rule 117).
8ouble Jeoardy ('((')
D was charged with slight physical
injuries in the @%C. :e 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. #n 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. %he court
reconsidered its order and directed D
to present his evidence. Before the ne9t
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. %he
prosecutor then ;led an information in
the 0%C, 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
in=icted 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 ?uash the second information on the
ground that its ;ling had placed him in
double jeopardy. :ow should DLs motion to
?uash be resolved5 6>+8
SUGGESTED ANSWER4
DLs motion to ?uash should be
granted on the ground of double
jeopardy because the ;rst ofense charged is
necessarily included in the second ofense
charged. F0raculan v. 0onato, &'0 SC) '2*
(&9/*!D.
ALTERNATI3E ANSWER4
DLs motion to ?uash should be denied
because the two dismissals of the case
against him were on his motion 6hence
with his e9press consent8 and his right to a
speedy trial was not violated.
8ouble Jeoardy" Egrading" *riginal C,arges ('((7)
$or the multiple stab wounds sustained by
the victim, 'oel was charged with
frustrated homicide in the 0%C. pon
arraignment, he entered a plea of guilty to
said crime. 'either the court nor the
prosecution
was aware that the victim had died two days
earlier on
account of his stab wounds. Because of
his guilty
plea, 'oel was convicted of frustrated
homicide and
meted the corresponding penalty.
3hen the prosecution learned of
the victimJs death, it ;led within
;fteen 6D<8 days therefrom a motion to
amend the information to upgrade
the charge from frustrated
homicide to consummated homicide.
'oel opposed the motion claiming
that the admission of the amended
information would place him in double
jeopardy. 0esolve the motion with
reasons. 6>+8
SUGGESTED ANSWER4
%he amended information to
consummated homicide from frustrated
homicide does not place the accused in
double jeopardy. As provided in
the second paragraph of Sec. 7, Rule
117,2))) Rules of Crimin%l !roce"ure, the
conviction of the accused shall not
be a bar to another prosecution for an
ofense which necessarily includes the
ofense charged in the former complaint
or information whenO 6a8 the
graver ofense developed due to
supervening facts arising from the
same act or omission constituting the
former chargeI or 6b8 the facts
constituting the graver charge became
2nown or were discovered only after
a plea was entered in the former
complaint or information. :ere,
when the plea to frustrated homicide
was made, neither the court nor the
prosecution was aware that the victim had
died two days earlier on account of his stab
wounds.
9;tradition ('((?)
0/ and !tate RR have a subsisting
"9tradition %reaty. /ursuant thereto 0/Js
!ecretary of (ustice 6!#(8 ;led a /etition
for "9tradition before the @@ 0%C alleging
that (uan 4wan is the subject of an
arrest warrant duly issued by the proper
criminal court of !tate RR in connection
with a criminal case for ta9 evasion and
fraud before his return to 0/ as a
bali2bayan. /etitioner prays that (uan be
e9tradited and delivered to the proper
authorities of !tate RR for trial, and that
to prevent (uanJs =ight in the interim, a
warrant for his immediate arrest be issued.
Before the 0%C could act on the
petition for e9tradition, (uan ;led before it
an urgent motion, in sum praying 6D8 that
!o(Js application for an arrest warrant be
set for hearing and 678 that (uan be
allowed to post bail in the event the court
would issue an arrest warrant. !hould the
court grant or deny (uanJs prayers5
0eason. 6<+8
SUGGESTED ANSWER4
nder the "9tradition %reaty and
.aw, the application of the !ecretary of
(ustice for a warrant of arrest need not be
set for hearing, and (uan cannot be allowed
to post bail if the court would issue a
warrant of arrest. %he provisions in the
0ules of Court on arrest and bail are
not basically applicable.
("overn,ent of the :nite# States of
),erica v. Puruganan, (/9 SC) 62(
F2002D!
Dondee
)nformation ('((1)
%he prosecution ;led an information
against (ose for slight physical injuries
alleging the acts constituting the
ofense but without anymore alleging
that it was committed after (oseLs
unlawful entry in the
complainantLs abode.
3as the information correctly
prepared by the prosecution5 3hy5
6<+8
SUGGESTED ANSWER4
'o. %he aggravating circumstance of
unlawful entry in the complainantLs
abode has to be speci;ed in the
informationI otherwise, it cannot be
considered as aggravating. (Sec. * of
Rule 11), Reise" Rules of Crimin%l
!roce"ure)
ALTERNATI3E ANSWER4
%he information prepared by the
prosecutor is not correct because
the accused should have been
charged with ?uali;ed trespass to
dwelling.
)nformation" Amendment ('((1)
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 ofense of serious
physical injuries. %he prosecution
then ;led an amended information
for serious physical injuries against
Amando.
3hat steps or action should the
prosecution ta2e so that the amended
information against Amando which
downgrades the nature of the ofense
could be validly made5 3hy5 6<+8
SUGGESTED ANSWER4
&n order that the amended
information which downgrades the
nature of the ofense could be validly
made, the prosecution should ;le a
motion to as2 for leave of court with
notice to the ofended party.
(Sec.14 of Rule 11), Reise" Rules of Crimin%l
!roce"ure). %he new rule is for the
protection of the interest of the
ofended party and to prevent possible
abuse by the prosecution.
)nformation" Amendment" 8ouble Jeoardy" Bail ('((')
A. D and " were charged with
homicide in one information.
Before they could be arraigned, the
prosecution moved to amend the
information to e9clude " therefrom.
Can the court grant the motion to
amend5 3hy5 67+8
B. #n the facts above stated, suppose
the prosecution, instead of ;ling a motion to
amend, moved to withdraw the
information altogether and its motion was
granted. Can the prosecution re-;le the
information although this time for
murder5 "9plain 6*+8
SUGGESTED ANSWER4
A. Nes, provided notice is given to the
ofended party and the court states its
reasons for granting the same. (Rule 11), sec.
14).
B. Nes, the
prosecutio
n can re-;le
information for murder in
substitution of the information for
homicide because no double jeopardy
has as yet attached. F"alveC v. Court
of )$$eals, 2(7
SC) 6/* (&99'!D.
)nformation" Amendment" Suervening 9vents
(1997)
A was accused of homicide for
the 2illing of B. During the trial,
the public prosecutor received a
copy of the marriage certi;cate of A
and B.
6a8 Can the public prosecutor
move for the amendment of the
information to charge A with the
crime of parricide5
6b8 !uppose instead of moving for
the amendment
of the
informatio
n, the public
prosecu
presente
d in
eviden
ce
th
e
marria
ge
certi;cat
without objection on the part of
the defense, could Abe convicted
of parricide5
SUGGESTED ANSWER4
6a8 'o. %he &nformation cannot
be amended to change the
ofense charged from homicide
to parricide. $irstly, the marriage
is not a supervening fact arising
from the act constituting the
charge of homicide. (Sec. 7[%] of
Rule 117). !econdly, after plea,
amendments may be done only as to
matters of form. %he amendment is
substantial because it will change the
nature of the ofense. (Sec. &' of ule
&&0; 0ional#o us. 0acu.cu.. &0/ SC)
7(6!.
6b8 'o. A can be convicted only of
homicide not of parricide which is a
graver ofense. %he accused has the
constitutional rights of due process
and to be informed of the nature
and the cause of the accusation
against him. (Secs. 1, 14 (1) %n" (2? -rt. ///.
19*7 Constitution),
)nformation" Bail ('((.)
After the re?uisite proceedings, the
/rovincial /rosecutor ;led an &nformation
for homicide against R. %he latter,
however, timely ;led a /etition for
0eview of the 0esolution of the
/rovincial /rosecutor with the !ecretary of
(ustice who, in due time, issued a 0esolution
reversing the resolution of the /rovincial
/rosecutor and directing him to
withdraw the &nformation.
Before the /rovincial /rosecutor
could comply with the directive of
the !ecretary of (ustice, the court
issued a warrant of arrest against R.
%he /ublic /rosecutor ;led a @otion to
Muash the 3arrant of Arrest and to
3ithdraw the &nformation, attaching to it
the 0esolution of the !ecretary of
(ustice. %he court denied the motion. 6K+8
a8 3as there a legal basis for the court
to deny the motion5
b8 &f you were the counsel for the
accused, what
remedies, if any, would you pursue5
SUGGESTED ANSWER4
Dondee
Remedial Law Bar Examination Q & A (1997-2006) a.
Nes, there is a legal basis for the court to
deny the motion to ?uash the
warrant of arrest and to withdraw
the information. %he court is not bound by
the 0esolution of the !ecretary of (ustice.
(Cres$o v.
Mogul, &*& SC) '62 F&9/7D!.
b. &f & were the counsel for the
accused, & would surrender the
accused and apply for bail because the
ofense is merely homicide, a non-capital
ofense. At the pre-trial, & would ma2e a
stipulation of facts with the prosecution
which would show that no ofense
was committed.
)nformation" :otion to Auas, ('((()
BC is charged with illegal possession of
;rearms under an &nformation signed
by a /rovincial /rosecutor. After
arraignment but before pre-trial, BC found out
that the /rovincial /rosecutor had no authority
to sign and ;le the information as it was the City
/rosecutor who has such authority. During
the pre-trial, BC moves that the case against
him be dismissed on the ground that the
&nformation is defective because the oficer
signing it lac2ed the authority to do so.
%he /rovincial /rosecutor opposes the motion
on the ground of estoppel as BC did not move
to ?uash the &nformation before
arraignment. &f you are counsel for BC, what is
your argument to refute the opposition of the
/rovincial /rosecutor5 6<+8
SUGGESTED ANSWER4
& would argue that since the /rovincial
/rosecutor had no authority to ;le the
information, the court did not ac?uire
jurisdiction over the person of the accused
and over the subject matter of the ofense
charged.
F&999D!. :ence, this ground is not waived if not
raised in a motion to ?uash and could be
raised at the pre-
trial.
)nformation" :otion to Auas, ('((7)
0odolfo is charged with possession of
unlicensed ;rearms in an &nformation
;led in the 0%C. &t was alleged therein
that 0odolfo was in possession of two
unlicensed ;rearmsO a .>< caliber and-a .
*7 caliber. nder 0epublic Act 'o. A7H>,
possession of an unlicensed .>< caliber
gun is punishable by prision mayor in
its minimum period and a ;ne of
/*F.FFF.FF, while possession of an
unlicensed .*7 caliber gun is punishable by
prision correctional in its ma9imum period
and a ;ne of not less than
/D<,FFF.FF.
As counsel of the accused, you intend to ;le
a motion to ?uash the &nformation. 3hat
ground or grounds should you invo2e5
"9plain. 6>+8
SUGGESTED ANSWER4
%he ground for the motion to ?uash is that
more than one ofense is charged in the
information. (Sec. 3[f], Rule 117, 2))) Rules of
Crimin%l !roce"ure) .i2ewise, the 0%C has no
jurisdiction over the second ofense of
(Sec. *, Rule 117, Rules
of Court).
(Sec.
3,
(Cu#ia v. Court of )$$eals, 2/'
SC) &7(
possession of an unlicensed .*7
caliber gun,
punishable by prision correctional in its
ma9imum
period and a ;ne of not less than
/D<.FFF.FF. &t is the
@%C that has e9clusive and original
jurisdiction over all ofenses
punishable by imprisonment
not e9ceeding si9 years. (Sec. 2, R.-.
'o. 7.91, %men"in3 5.!. 5l3. 129)
)nformation" :otion to Auas," 3rounds (199!)
D. 1ive two 678 grounds
to ?uash an &nformation.
)7+,
7. &f the &nformation is not
accompanied by a certi;cation
that a preliminary investigation
has
been conducted. &s the
&nformation void5 )*+,
SUGGESTED ANSWER4
D. %wo grounds to ?uash an
&nformation areO
a8 %hat the facts charged do not
constitute an ofenseI and
b8 %hat the court trying the
case has no jurisdiction
over the ofense charged
or the person of the
accused.
c8 %hat the oficer who ;led
the information had no
authority to do soI
d8 %hat it does not conform
substantially to the
prescribed formI
e8 %hat more than one
ofense is charged e9cept
in those cases in which
e9isting laws prescribe a
single punishment for various
ofensesI
f8 %hat the criminal action or
liability has been e9tinguishedI
g8 %hat it contains averments
which, if true, would
constitute a legal e9cuse
or justi;cationI and
h8 %hat the accused has been
previously convicted or in jeopardy
of being convicted,
or ac?uitted of the ofense
charged.
Rule 117. Rules of Crimin%l !roce"ure.)
SUGGESTED ANSWER4
7. 'o. %he certi;cation which is
provided in !ec. >, 0ule DD7. 0ules of
Criminal /rocedure, is not an
indispensable part of the information.
(Peo$le vs.
8a$ura, 2** SC) /*.!
Judgment" Promulgation of Judgment (1997)
R, the accused in a homicide case
before the 0%C. Dagupan Cay, was
personally noti;ed of the
promulgation of judgment in his case
set for DF December DHHK. #n said
date. R was not present as he had to
attend to the trial of another criminal
case against him in %arlac, %arlac.
%he trial court denied the motion of
the counsel of R to postpone the
promulgation.
6a8 :ow shall the court promulgate the
judgment in the absence of the
accused5
6b8 Can the trial court also order the
arrest of R5
SUGGESTED ANSWER4
6a8 &n the absence of the accused, the
promulgation shall be made by recording
the (udgment in the
Dondee
Parties" Prosecution of *ffenses ('((()
Nour friend NN, an orphan, DK years old,
judgme
nt.
86(*/0, March 22,
&9*0!
(Melo v. Peo$le,
".. %o.
%o secure the proper and most e9peditious
release of @ariano from the 'ational
/enitentiary, his counsel should ;leO 6a8 a
petition for habeas corpus for the illegal
con;nement of @ariano 60ule DF78, or 6b8
a motion in the court which convicted
him, to nullify the e9ecution of his
sentence or the order of his commitment
on the ground that a supervening
development had occurred
despite the ;nality
of the
criminal doc2et and a copy thereof
served upon the accused or counsel.
(Sec. .. t0ir" 8%r., Rule 12))
6b8 'o, the trial court cannot order the arrest
of R if the judgment is one of ac?uittal and,
in any event, his failure to appear was with
justi;able cause since he had to attend to
another criminal case against him.
Jurisdiction" Comle; Crimes ('((.)
&n comple9 crimes, how is the jurisdiction
of a court determined5 >+
SUGGESTED ANSWER4
&n a comple9 crime, jurisdiction over the
whole comple9 crime must be lodged with
the trial court having jurisdiction to impose
the ma9imum and most serious penalty
imposable on an ofense forming part of the
comple9 crime. (Cu.os v. "arcia, &60 SC)
(02
F&9//
D!.
Jurisdiction" &inality of a Judgment ('((7)
@ariano was convicted by the 0%C
for raping -ictoria and meted the
penalty of reclusion perpetua. 3hile
serving sentence at the 'ational
/enitentiary, @ariano and -ictoria
were married. @ariano ;led a motion
in said court for his release from
the penitentiary on his claim that under
0epublic Act 'o. A*<*, his marriage
to -ictoria e9tinguished the criminal
action against him for rape, as well
as the penalty imposed on him.
:owever, the court denied the motion on
the ground that it had lost jurisdiction
over the case after its decision had
become ;nal and e9ecutory. 6E+8
a) Is the fling of the court
correct? Explain.
SUGGESTED ANSWER4
'o. %he court can never lose jurisdiction so
long as its decision has not yet been fully
implemented and satis;ed. $inality of a
judgment cannot operate to divest a court
of its jurisdiction. %he court retains an
interest in seeing the proper
e9ecution and implementation of its
judgments, and to that e9tent, may issue
such orders necessary and appropriate for
these purposes. (4chegara. v. Secretar. of
-ustice, "..
%o. &(20*, -anuar.
&9, &999!
b) hat remedy!remedies should
the counsel of "ariano ta#e to
secure his proper and most
expeditious release from the $ational
%enitentiary? Explain.
SUGGESTED ANSWER4
see2s your legal advice. !he tells
you that SS, her uncle, subjected
her to acts of lasciviousnessI that when
she told her grandparents, they told her
to just 2eep ?uiet and not to ;le
charges against SS, their son. $eeling
very much aggrieved, she as2s you how
her uncle SS can be made to answer for
his crime.
a8 3hat would your advice be5 "9plain.
6*+8
b8 !uppose the crime committed against
NN by her uncle SS is rape,
witnessed by your mutual friend
RR. But this time, NN was prevailed
upon by her grandparents not to ;le
charges. RR as2s you if she can
initiate the complaint against SS.
3ould your answer be the same5
"9plain. 67+8.
SUGGESTED ANSWER4
6a8& would advise the minor, an orphan of DK
years of age, to ;le the complaint herself
independently of her grandparents,
because she is not incompetent or
incapable to doing so upon grounds
other than her minority. (Sec. (, Rule 11),
Rules of Crimin%l !roce"ure.)
6b8 !ince rape is now classi;ed as a
Crime Against /ersons under the Anti-0ape
.aw of DHHE (R- *3(3), & would advise RR to
initiate the complaint against SS.
Plea of 3uilty" to a 0esser *ffense ('((')
D was charged with theft of an
article worth pD<,FFF.FF. pon being
arraigned, he pleaded not guilty to the
ofense charged. %hereafter, before trial
commenced, he as2ed the court to allow
him to change his plea of not guilty to a
plea of guilt but only to estafa involving
/<,FFF.FF. Can the court allow D to change
his plea5 3hy5 67+8
SUGGESTED ANSWER4
'o, because a plea of guilty to a lesser
ofense may be allowed if the lesser
ofense is necessarily included in the
ofense charged. (Rule 11., sec. 2).
"stafa involving /<,FFF.FF is not
necessarily included in theft of an
article worth /D<,FFF.FF
Pre/udicial Auestion (1999)
3hat is a prejudicial ?uestion5 67+8
SUGGESTED ANSWER4
A prejudicial ?uestion is an issue
involved in a civil action which is
similar or intimately related to the
issue raised in the criminal action,
the resolution of which determines
whether or not the criminal action may
proceed. (Sec. ( of Rule 111.)
ANOT5ER ANSWER4
A prejudicial ?uestion is one based on a
fact distinct and separate from the
crime but so intimately connected
with it that it determines the guilt
or innocence of the accused.
Pre/udicial Auestion ('((()
CR is charged with estafa in court for failure
to remit to @@ sums of money collected
by him 6CR8 for @@ in payment for goods
purchased from @@, by
Dondee
depositing the amounts in his 6CRLs8
personal ban2 account. CR ;les a
motion to suspend proceedings pending
resolution of a civil case earlier ;led in
court by CR against @@ for accounting
and damages involving the amounts
subject of the criminal case. As the
prosecutor in the criminal case, brie=y
discuss your grounds in support of
your opposition to the motion to
suspend proceedings. 6<+8.
SUGGESTED ANSWER4
As the prosecutor, & will argue that
the motion to suspend is not in order
for the following reasonsO
D. %he civil case ;led by CR
against @@ for accounting and
damages does not involve an issue
similar to or intimately related to the
issue of estafa raised in the criminal
action.
7. %he resolution of the issue in the
civil case for accounting will not
determine whether or not the
criminal action for estafa may
proceed.
111, Rules of Crimin%l !roce"ure.)
Pre/udicial Auestion" Susension of Criminal Action
(1999)
A allegedly sold to B a parcel of land which A
later also sold to R. B brought a
civil action for nulli;cation of the second
sale and as2ed that the sale made by A in
his favor be declared valid. A theoriGed that
he never sold the property to B and
his purported signatures appearing in the
;rst deed of sale were forgeries.
%hereafter, an &nformation for estafa was
;led against A based on the same double sale
that was the subject of the civil action. A ;led a
P@otion for !uspension of ActionP in the
criminal case, contending that the resolution of
the issue in the civil case would necessarily
be determinative of his guilt or innocence. &s
the suspension of the criminal action in order5
"9plain. 67+8
SUGGESTED ANSWER4
Nes. %he suspension of the criminal action is in
order because the defense of A in the civil action,
that he never sold the property to B and that his
purported signatures in the ;rst deed of sale
were forgeries, is a prejudicial ?uestion the
resolution of which is determinative of his
guilt or innocence. &f the ;rst sale is null and
void, there would be no double sale and A
would be innocent of the ofense of estafa.
(as v. asul, &00 SC) &2*.!
Pre$%rial Agreement ('((?)
@ayor %@ was charged of malversation
through falsi;cation of oficial documents.
Assisted by Atty. #/ as counsel de parte
during pre-trial, he signed together with
#mbudsman /rosecutor %1 a P(oint !tipulation
of $acts and Documents,P which was
presented to the !andiganbayan. Before the
court could issue a pre-trial order but after
some delay caused by Atty. #/, he was
substituted by Atty. M0 as defense counsel. Atty.
M0 forthwith ;led a motion to withdraw the
P(oint !tipulation,P alleging that it is prejudicial
to the accused because it contains, inter
(Sec. 1 of former Rule 2); Sec,
1 of new Rule
(Rule
11*,
(Sec. (,
Rule
alia, the statement that the PDefense
admitted all the
documentary evidence of the
/rosecution,P thus
leaving the
accused
little or no room to
defend
himself, and violating his
right against self- incrimination.
!hould the court grant or deny
M0Js motion5 0eason. 6<+8
SUGGESTED ANSWER4
%he court should deny M0Js
motion. &f 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. :is
lawyer cannot ;le a motion to
withdraw. A pre-trial order is not
needed. (Ba.as v. San#igan3a.an, (9&
SC) '&*(2002P!. %he admission of
such documentary evidence is
allowed by the rule.
(Sec. 2 of ule &&/; Peo$le v.
<ernan#eC, 260 SC) 2* F&996D!.
Pre$%rial" Criminal Case vs. Civil Case (1997)
1ive three distinctions between
a pre-trial in a criminal case
and a pre-trial in a civil case.
SUGGESTED ANSWER4
%hree distinctions between a pre-
trial in a criminal case and a pre-
trial in a civil case are as followsO 1.
%he pre-trial in a criminal case is
conducted only
Pwhere the accused and counsel
agreeP
Sec. 1)O while the pre-trial in
a civil case is
mandatory.
1*).
7. %he pre-trial in a criminal case does not
consider the possibility of a
compromise, which is one
important aspect of the pre-trial in a
civil case.
(Sec. 1 of former Rule 2); Sec. 2 of new
Rule 1*).
*. &n a criminal case, a pre-trial
agreement is re?uired to be reduced to
writing and signed by the accused and
his counsel (See; Rule 11*, Sec. 4)I
while in a civil case, the agreement
may be
contained in the pre-trial order. (Sec.
4 of former Rule 2); See 7 of new Rule
7*).
Provisional 8ismissal ('((')
&n a prosecution for robbery against
D, the prosecutor moved for the
postponement of the ;rst scheduled hearing
on the ground that he had lost his records
of the case. %he 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. &f DLs counsel does not object, may
the court grant the motion of the
prosecutor5 3hy5 6*+8
SUGGESTED ANSWER4
'o, because a case cannot be
provisionally dismissed e9cept upon the
e9press consent of the accused and
with notice to the ofended party. (Rule
117, sec. *).
1emedies" 5oid Judgment ('((?)
AR was charged before the NN 0%C with
theft of jewelry valued at /7F.FFF,
punishable with
Dondee
imprisonment of up to DF years of
prision mayor under the 0evised /enal
Code. After trial, he was convicted of
the ofense charged, notwithstanding
that the material facts duly established
during the trial showed that the
ofense committed was estafa,
punishable by imprisonment of up to
eight years of prision mayor under the
said Code. 'o appeal having been ta2en
therefrom, said judgment of conviction
became ;nal. &s the judgment of conviction
valid5 &s the said judgment reviewable
thru a special civil action for certiorari5
0eason. 6<+8
SUGGESTED ANSWER4
Nes, the judgment of conviction for
theft upon an information for theft is
valid because the court had jurisdiction
to render judgment. :owever, the
judgment was grossly and blatantly
erroneous. %he 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. %he elements of the
two crimes are not the same. (8auro
Santos v. Peo$le, &/& SC) '/7!. #ne
ofense does not necessarily include or is
included in the other. (Sec. ( of Rule 12)).
%he judgment of conviction is
reviewable by certiorari even if no appeal
had been ta2en, because the judge
committed a grave abuse of discretion
tantamount to lac2 or e9cess of his
jurisdiction in convicting the accused of
theft and in violating due process and
his right to be informed of the nature
and the cause of the accusation against
him, which ma2e the judgment void.
3ith the mista2e in charging the
proper ofense, the judge should have
directed the ;ling of the proper
information and thereafter dismissed the
original information. (Sec. 19 of Rule 119).
Searc, Barrant" :otion to Auas, ('((7)
/olice operatives of the 3estern /olice
District, /hilippine 'ational /olice,
applied for a search warrant in the
0%C for the search of the house of (uan
!antos and the seiGure of an
undetermined amount of shabu. %he team
arrived at the house of !antos but failed
to ;nd him there. &nstead, the team found
0oberto Co. %he team conducted a search in
the house of !antos in the presence of
0oberto Co and barangay oficials and
found ten 6DF8 grams of shabu. 0oberto
Co was charged in court with illegal
possession of ten grams of shabu.
Before his arraignment, 0oberto Co ;led a
motion to ?uash the warrant on the
following grounds 6a8 it was not the
accused named in the search warrantI
and 6b8 the warrant does not describe the
article to be seiGed with suficient
particularity. 0esolve the motion with
reasons. 6>+8
SUGGESTED ANSWER4
%he motion to ?uash should be denied.
%he name of the person in the search
warrant is not important. &t is not even
necessary that a particular person be
implicated (Mantaring v. o,an, ).M. %o.
5-69(690', 2e3ruar. 2/, &996!, so long as
the search is conducted in the place
where the search warrant will be served.
@oreover, describing the shabu in an
undetermined amount is suficiently
particular. (Peo$le v. 5ee, "..
%os. &'0*'66'7, -anuar. 20, 200(!
%rial" %rial in Absentia" Automatic 1evie2 of Conviction
(199!)
D. 3hat are the re?uisites of a trial
in absentia5 )7+,
7.&f an accused who was sentenced to
death escapes, is there still a legal
necessity for the !upreme Court to
review the decision of conviction5 )*+,
SUGGESTED ANSWER4
D. %he re?uisites of trial in absentia areO
6a8 the accused has already been
arraignedI 6b8 he has been duly noti;ed
of the trialI and 6c8 his failure to appear is
unjusti;able. (Sec. &' F2D, )rticle +++.
Constitution;
Para#a vs. =eneracion, 269 SC) (7&
F&997D.!
7. Nes, there is still a legal necessity
for the !upreme Court (%s of 2))4 t0e
Court of -88e%ls 0%s t0e @uris"iction to
suc0 reiew) to review the decision
of conviction sentencing the accused to
death, because he is entitled to an
automatic review of the death sentence.
(Sees.
(FeD an# &0, ule &22, ules of
Cri,inal Proce#ure; Peo$le vs. 4s$argas,
260 SC) *(9.!
5enue (1997)
3here is the proper venue for the
;ling of an information in the
following cases5
a8 %he theft of a car in /asig City
which was brought to #bando,
Bulacan, where it was
cannibaliGed.
b8 %he theft by R, a bill collector of ABC
Company, with main ofices in
@a2ati City, of his collections from
customers in %agaytay City. &n the
contract of employment, R was
detailed to the Calamba branch ofice,
.aguna, where he was to turn in his
collections.
c8 %he malversation of public funds by a
/hilippine consul detailed in the
/hilippine "mbassy in
.ondon.
SUGGESTED ANSWER4
6a8 %he proper venue is in /asig City where
the theft of the car was committed, not
in #bando where it was cannibaliGed.
%heft is not a continuing ofense.
(Peo$le v Merca#o, 6* Phil 66*!.
6b8 &f the crime charged is theft, the
venue is in Calamba where he did not turn
in his collections. &f the crime of R is
estafa, the essential ingredients of the
ofense too2 place in %agaytay City
where he received his collections, in
Calamba where he should have turned in
his collections, and in @a2ati City where
the ABC Company was based. %he
information may therefore be ;led in
%agaytay City or Calamba or @a2ati
which have concurrent territorial
(urisdiction. (Catingu3 vs. Court of )$$eals,
&2& SC) &06!.
6c8 %he proper court is the !andiganbayan
which has jurisdiction over crimes
committed by a consul or higher
oficial in the diplomatic service. (Sec.
'(c!. P0 &606, as a,en#e# 3. ).
%o. 797*!. %he !andiganbayan is a
national court. (%uneC v.
San#igan3a.an, &&& SC) '(( F&9/2D. &t
has only one venue at present, which is
in @etro @anila, until 0A. 'o. EHE<,
providing for two other branches in Cebu
and in Cagayan de #ro, is implemented.
A(%&#"(i$% A#'-%&'4
6b8 %he information may be ;led
either in Calamba or in @a2ati City, not
in %agaytay City where no ofense had
as yet been committed,
6c8 Assuming that the
!andiganbayan has no jurisdiction,
the proper venue is the ;rst 0%C in
which the charge is ;led (Sec. 1(("). Rule
11)).
E3IDENCE
Admissibility (199!)
%he barangay captain reported to the
police that R was illegally 2eeping in his
house in the barangay an Armalite @DK
ri=e. #n the strength of that
information, the police conducted a
search of the house of R and indeed
found said ri=e. %he police raiders seiGed
the ri=e and brought R to the police
station. During the investigation, he
voluntarily signed a !worn !tatement that
he was possessing said ri=e without license
or authority to possess, and a 3aiver of
0ight to Counsel. During the trial of R for
illegal possession of ;rearm, the
prosecution submitted in evidence the ri=e.
!worn !tatement and 3aiver of 0ight to
Counsel, individually rule on the
admissibility in evidence of theO
D. 0i=eI )7+,
7. !worn !tatementI and )7+D
*. 3aiver of 0ight to Counsel of R. )D+,
SUGGESTED ANSWER4
D. %he ri=e is not admissible in evidence
because it was seiGed without a proper
search warrant. A warrantless search is
not justi;ed. %here was time to secure a
search warrant. (Peole us. 9ncinada 3.1. Bo.
11+7'(E *ctober '. 1997 and ot,er cases)
7. %he sworn statement is not admissible in
evidence because it was ta2en without
informing him of his custodial rights and
without the assistance of counsel which should
be independent and competent and preferably
of the choice of the accused. (Peole us.
JanuarioE '+7 SC1A +(!.)
*. %he waiver of his right to counsel is not
admissible because it was made without the
assistance of counsel of his choice. (Peole us.
3omeCE '7( SC1A =...)
Admissibility ('((')
Acting on a tip by an informant,
police oficers
stopped a car being driven by D and
ordered him to
open the trun2. %he oficers found a bag
containing
several 2ilos of cocaine. %hey seiGed the
car and the cocaine as evidence and
placed D under arrest. 3ithout
advising him of his right to remain silent
and to have the assistance of an
attorney, they ?uestioned him
regarding the cocaine. &n reply, D said,
T& donLt 2now anything about it. &t isnLt
even my car.U D was charged with
illegal possession of cocaine, a
prohibited drug. pon 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. &n
his direct e9amination, D testi;ed
that he owned the car but had
registered it in the name of a friend for
convenience. #n cross-e9amination,
the attorney representing the police
as2ed, TAfter your arrest, did you
not tell the arresting oficers that it
wasnLt your car5U &f you were DLs
attorney, would you object to the
?uestion5 3hy5 6<+8
SUGGESTED ANSWER4
Nes, because his admission made
when he was ?uestioned 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.
:ence, it is inadmissible in evidence.
FConstitutionE Art. )))E sec. 1'"
1.A. 7=.! (199')E secE '" Peole v. :a,inayE .(' SC1A =77G.
ALTERNATI3E ANSWER4
Nes, because the ?uestion did not lay the
predicate to justify the cross-
e9amination ?uestion.
Admissibility ('((?)
!gt. 10 of 3/D arrested two '/A
suspects, @a9 and Bri9, both aged 77, in
the act of robbing a grocery in "rmita. As
he handcufed them he noted a pistol
tuc2ed in @a9Js waist and a dagger
hidden under Bri9Js shirt, which he
promptly con;scated. At the police
investigation room, @a9 and Bri9 orally
waived their right to counsel and to
remain silent. %hen under oath, they
freely answered ?uestions as2ed by the
police des2 oficer. %hereafter they signed
their sworn statements before the
police captain, a lawyer. @a9 admitted
his part in the robbery, his possession of
a pistol and his ownership of the pac2et of
shabu found in his poc2et. Bri9 admitted
his role in the robbery and his possession of
a dagger. But they denied being '/A hit
men. &n due course, proper charges
were ;led by the City /rosecutor
against both arrestees before the @@
0%C.
@ay the written statements signed
and sworn to by @a9 and Bri9 be
admitted by the trial court as
evidence for the prosecution5 0eason.
6<+8
SUGGESTED ANSWER4
'o. %he sworn written statements of @a9
and Bri9 may not be admitted in evidence,
because they were not assisted by
counsel. "ven if the police captain
Dondee
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.
3aiver of the right to a lawyer must be
done in writing and in the presence of
independent counsel. (Peole v.
:a,inayE .(' SC1A =77 11999G" Peole v. 9sirituE .(' SC1A
7.. F1999G).
Admissibility" Admission of 3uilt" 1e<uirements ('((+)
3hat are the re?uirements in order that
an admission of guilt of an accused
during a custodial investigation be
admitted in evidence5 67.<+8
SUGGESTED ANSWER4
D. %he admission must be voluntary.
7. %he admission must be in writing.
*. %he admission must be made
with the assistance of competent,
independent counsel.
>. %he admission must be e9press
(Peo$le v.
Prinsi$e, ".. %o. &(*/62, Ma. 2,
2002!.
<. &n case the accused waives his
rights to silence and to counsel,
such waiver must be in writing,
e9ecuted with the assistance
of competent, independent
counsel.
Admissibility" 8ocument" =ot raised in t,e Pleading
('((?)
&n a complaint for a sum of money ;led
before the @@ 0%C, plaintif did not
mention or even just hint at any demand
for payment made on defendant before
commencing suit. During the trial,
plaintif duly ofered "9h. PAP in evidence
for the stated purpose of proving the
ma2ing of e9trajudicial demand on
defendant to pay /<FF.FFF, the subject of
the suit. "9h. PAP was a letter of
demand for defendant to pay said sum of
money within DF days from receipt,
addressed to and served on defendant
some two months before suit was begun.
3ithout objection from defendant, the
court admitted "9h. PAP in evidence. 3as
the courtJs admission of "9h. PAP in
evidence erroneous or not5 0eason. 6<+8
SUGGESTED ANSWER4
%he courtJs admission of "9h. PAP in
evidence is not erroneous. &t was
admitted in evidence without
objection on the part of the defendant. &t
should be treated as if it had been
raised in the pleadings. %he complaint
may be amended to conform to
the evidence, but if it is not so
amended, it does not afect the result
of the trial on this issue. (Sec. ( of Rule
1)).
Admissibility" 9lectronic 9vidence ('((.)
a8 !tate the rule on the admissibility of
an electronic evidence.
b8 3hen is an electronic evidence
regarded as being the e?uivalent of
an original document under the
Best "vidence 0ule5 >+
SUGGESTED ANSWER4
6a8 3henever a rule of evidence refers to
the term writing, document, record,
instrument, memorandum or any other
form of writing, such term shall be
deemed to include an electronic
document as de;ned in these 0ules.
(Sec. 1 of Rule 3, Rules of 9lectronic
9i"ence eAectie -u3ust 1, 2))1).
An electronic document is admissible in
evidence if it complies with the rules on
admissibility prescribed by the 0ules
of Court and related laws and is
authenticated in the manner
prescribed by these 0ules. (Sec. 2 of
Rule 3, /".). %he authenticity of any
private electronic document must
be proved by evidence that it had
been digitally signed and other
appropriate security measures have
been applied. (Sec. 2 of Rule (, /".).
6b8 An electronic document shall be
regarded as the e?uivalent of an
original document under the Best
"vidence 0ule if it is a printout or output
readable by sight or other means,
shown to re=ect the data accurately.
(Sec. 1 of Rule 4)
Admissibility" *b/ect or 1eal 9vidence (199?)
At the trial of Ace for violation of the
Dangerous Drugs Act, the prosecution
ofers in evidence a photocopy of the
mar2ed /DFF.FF bills used in the Tbuy-
bustU operation. Ace objects to the
introduction of the photocopy on the
ground that the Best "vidence 0ule
prohibits the introduction of secondary
evidence in lieu of the original.
a8 &s the photocopy real 6object8
evidence or documentary
evidence5
b8 &s the photocopy admissible in
evidence5
SUGGESTED ANSWER4
a8%he photocopy of the mar2ed bills is
real 6object8 evidence not
documentary evidence, because the
mar2ed bills are real evidence.
b8 Nes, the photocopy is admissible in
evidence, because the best evidence
rule does not apply to object or real
evidence.
Admissibility" *b/ections (1997)
3hat are the two 2inds of objections5
"9plain each brie=y. 1iven an e9ample
of each.
SUGGESTED ANSWER4
%wo 2inds of objections areO 6D8 the
evidence being presented is not relevant
to the issueI and 678 the evidence is
incompetent or e9cluded by the law or the
rules, (Sec. 3, Rule 13*). An e9ample of
the ;rst is when the prosecution ofers
as evidence the alleged ofer of an
&nsurance company to pay for the
damages sufered by the victim in a
homicide case.
(See 1997 'o. 14).
"9amples of the second are evidence
obtained in violation of the
Constitutional prohibition against
unreasonable searches and seiGures
and confessions and admissions in
violation of the rights of a person under
custodial &nvestigation.
ALTERNATI3E ANSWERS4
Dondee
D8 !peci;c objectionsO "9ampleO parol
evidence and best evidence rule
1eneral #bjectionsO "9ampleO
continuing objections 6!ec. *E of 0ule
D*78.
78 %he two 2inds of objections areO 6D8
objection to a ?uestion propounded in the
course of the oral e9amination of the
witness and 678 objection to an ofer of
evidence in writing. #bjection to a ?uestion
propounded in the course of the oral
e9amination of a witness shall be made
as soon as the grounds therefor shall
become reasonably apparent otherwise, it is
waived. An ofer of objection in writing shall
be made within three 6*8 days after notice
of the ofer, unless a diferent period is
allowed by the court. &n both instances
the grounds for objection must be
speci;ed. An e9ample of the ;rst is when the
witness is being cross-e9amined and the
cross e9amination is on a matter not
relevant. An e9ample of the second is that
the evidence ofered is not the best evidence.
Admissibility" *ffer to :arry" Circumstantial
9vidence (199!)
A was accused of having raped R.
0ule on the admissibility of the
following pieces of evidenceO
D. an ofer of A to marry RI and 6*+,
7. a pair of short pants allegedly left by
A at the crime which the court, over
the objection of A, re?uired him to put
on, and when he did, it ;t
him well. )7+,
SUGGESTED ANSWER4
D. AJs ofer to marry R is admissible
in evidence as an &mplied admission of
guilt because rape cases are not
allowed to be compromised. (Sec. 27 of
ule &(9;
Peo$le vs. 0o,ingo, 226 SC) &*6.!
7. %he pair of short pants, which ;t
the accused well, is circumstantial
evidence of his guilt, although
standing alone it cannot be the basis
of conviction. %he accused cannot
object to the court re?uiring him to put
the short pants on. &t is not part of his
right against self-incrimination because
it is a mere physical act.
Admissibility" *ffer to Pay 9;enses (1997)
A, while driving his car, ran over B. A
visited B at the hospital and ofered to
pay for his hospitaliGation e9penses.
After the ;ling of the criminal case against
A for serious physical injuries through
rec2less imprudence. AJs insurance carrier
ofered to pay for the injuries and damages
sufered by B. %he ofer was rejected
because B considered the amount ofered as
inade?uate.
a8 &s the ofer by A to pay the
hospitaliGation e9penses of B admissible
in evidence5
b8 &s the ofer by AJs insurance carrier to
pay for the injuries and damages of
B admissible in evidence5
of
Court)
(Sec. 1, Rule 13), Rules
of Court)
66
SUGGESTED ANSWER4
6a8 %he ofer by A to pay
the hospitaliGation e9penses of B
is not admissible in evidence to
prove his guilt in both the civil and
criminal cases. (Rule 13), Sec. 27,
fourt0 8%r.).
6b8 'o. &t is irrelevant. %he
obligation of the insurance
company is based on the contract
of insurance and is not admissible in
evidence against the accused because
it was not ofered by the accused but by
the insurance company which is not his
agent.
Admissibility" Private 8ocument ('((7)
@ay a private document be ofered,
and admitted in evidence both as
documentary evidence and as object
evidence5 "9plain.
SUGGESTED ANSWER4
Nes, it can be considered as both
documentary and object evidence. A
private document may be ofered and
admitted in evidence both as
documentary evidence and as object
evidence. A document can also be
considered as an object for purposes
of the case. #bjects as evidence are
those addressed to the
senses of the court.
Documentary evidence consists of
writings or any material containing
letters, words, numbers, ;gures,
symbols or other modes of written
e9pressions, ofered ns proof of their
contents. 6Sec. 2, Rule 13), Rules
:ence, a private document may be
presented
as object evidence in order to
Jestablish certain physical evidence or
characteristics that are visible on the paper
and writings that comprise the document.
Admissibility" Proof of &iliation" Action of
Partition ('((()
.inda and spouses Arnulfo and 0egina
Ceres were co-owners of a parcel of
land. .inda died intestate and without
any issue. %en 6DF8 persons headed by
(ocelyn, claiming to be the collateral
relatives of the deceased .inda, ;led an
action for partition with the 0%C praying for
the segregation of .indaLs X share,
submitting in support of their petition the
baptismal certi;cates of seven of the
petitioners, a family bible belonging to
.inda in which the names of the
petitioners have been entered, a
photocopy of the birth certi;cate of
(ocelyn, and a certi;cation of the local civil
registrar that its ofice had been completely
raGed by ;re. %he spouses Ceres refused to
partition on the following groundsO D8 the
baptismal certi;cates of the parish
priest are evidence only of the
administration of the sacrament of baptism
and they do not prove ;liation of the alleged
collateral relatives of the deceasedI 78 entry
in the family bible is hearsayI *8 the
certi;cation of the registrar on non-
availability of the records of birth does not
prove ;liationO >8 in partition cases where
;liation to the deceased is in dispute,
prior and separate judicial declaration of
heirship in a settlement of estate
proceedings is necessaryI and <8 there is
need for publication as real
Dondee
property is involved. As counsel for
(ocelyn and her co-petitioners, argue
against the objections of the spouses
Ceres so as to convince the court to
allow the partition. Discuss each of the
;ve 6<8 arguments brie=y but
completely. 6DF+8
SUGGESTED ANSWER4
6D8 %he baptismal certi;cate can show
;liation or prove pedigree. &t is one of the
other means allowed under the 0ules of
Court and special laws to show pedigree.
(5rini#a# v. Court of )$$eals, 2/9 SC)
&//
F&99/D; <eirs of +8gnacio Conti v. Court of
)$$eals, (00 SC) ('* F&99/D!.
678 "ntries in the family bible may be
received as evidence of pedigree. (Sec.
'0, ule &(0, ules of
Court!.
6*8 %he certi;cation by the civil registrar
of the non- availability of records is
needed to justify the presentation
of secondary evidence, which is the
photocopy of the birth certi;cate of
(ocelyn. (<eirs of
+gnacio Conti v. Court of )$$eals, su$ra.!
6>8Declaration of heirship in a settlement
proceeding is not necessary. &t can be
made in the ordinary action for partition
wherein the heirs are e9ercising the
right pertaining to the decedent,
their predecessor-in- interest, to as2
for partition as co-owners 6&d.8
6<8"ven if real property is involved, no
publication is necessary, because what is
sought is the mere segregation of
.indaLs share in the property. (Sec. 1 of
Rule .9; /".)
Admissibility" 1ules of 9vidence (1997)
1ive the reasons underlying the
adoption of the following rules of
evidenceO
6a8 Dead @an 0ule
6b8 /arol "vidence 0ule
6c8 Best "vidence 0ule
6d8 %he rule against the admission
of illegally obtained e9trajudicial
confession
6e8 %he rule against the admission of an
ofer of
compromise in civil cases
SUGGESTED ANSWER4
%he reasons behind the following rules
are as followsO 6a8 &E'& "'$ RU(EO
if death has closed the lips of one party, the
policy of the law is to close the lips of the
other. ("oni v. Court of)$$eals, 8677'('.
Se$te,3er 2(, &9/6, &'' SC) 222!. %his is
to prevent the temptation to perjury
because death has already sealed the lips
of the party.
6b8 %'R)( E*I&E$+E RU(EO &t is designed to
give certainty to a transaction which has been
reduced to writing, because written evidence
is much more certain and accurate than that
which rests on =eeting memory only. (#r%ncisco,
Rules of Court Bol. B//, !%rt /. 8. 1(4)
6c8 ,E-. E*I&E$+E RU(EO %his
0ule is
adopted for the prevention of fraud and is
declared to
be essential to the pure
administration of justice. (:or%n,
Bol. (, 8. 12.) &f a party is in
possession of such evidence and
withholds it, the presumption
naturally arises that the better
evidence is withheld for
fraudulent purposes. (#r%ncisco. Rules
of Court, ol. B//. !%rt /, 88, 121,122)
6d8 An illegally obtained
e9trajudicial confession nulli;es the
intrinsic validity of the confession
and renders it unreliable as
evidence of the truth. (:or%n, ol. (,
8. 2(7) it is the fruit of a poisonous
tree.
6e8 %he reason for the rule against
the admission of an ofer of
compromise in civil case as an
admission of any liability is that
parties are encouraged to enter
into compromises. Courts
should endeavor to persuade
the litigants in a civil case to
agree upon some fair
compromise. (-rt. 2)29, Ciil Co"e).
During pre-trial, courts should
direct the parties to consider the
possibility of an amicable
settlement. (Sec. 1[%] of former Rule
2)= Sec. 2 [%] of new Rule 1.).
Best 9vidence 1ule (1997)
3hen A loaned a sum of money
to B. A typed a single copy of the
promissory note, which they both
signed A made two photo 69ero9ed8
copies of the promissory note, giving
one copy to B and retaining the other
copy. A entrusted the typewritten
copy to his counsel for safe2eeping.
%he copy with AJs counsel was
destroyed when the law ofice was
burned.
a8 &n an action to collect on the
promissory note, which is deemed
to be the PoriginalP copy for the
purpose of the PBest "vidence 0uleP5
b8 Can the photocopies in the hands of
the parties be considered Pduplicate
original copiesP5
c8 As counsel for A, how will you prove
the loan
given to A and B5
SUGGESTED ANSWER4
6a8 %he copy that was signed and
lost is the only PoriginalP copy for
purposes of the Best "vidence 0ule.
(Sec. 4 [b] of Rule 13)).
6b8 'o, %hey are not duplicate
original copies
because there are photocopies which
were not signed 6:a,ilum v. Court of AealsE
17 SC1A =!'8, %hey constitute secondary
evidence. (Sec. ( of Rule 13)).
6c8 %he loan given by A to B may be
proved by secondary evidence through the
9ero9ed copies of the promissory note. %he
rules provide that when the original
document is lost or destroyed, or cannot be
produced in court, the oferer, upon
proof of its e9ecution or e9istence
and the cause of its unavailability
without bad faith on his part, may prove
its contents by a copy, or by a recital of
its contents in some authentic document,
or by the
Dondee
testimony of witnesses in the order
stated. (Sec. ( of Rule 13)).
Burden of Proof vs. Burden of 9vidence ('((?)
Distinguish Burden of proof and burden
of evidence.
SUGGESTED ANSWER4
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
re?uired 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. SarmientoE 1.!
SC1A
7!7 F19!7G).
C,aracter 9vidence ('((')
D was prosecuted for homicide for
allegedly beating up - to death with an
iron pipe.
A. @ay the prosecution introduce
evidence that - had a good
reputation for peacefulness and non-
violence5 3hy5 67+8
B. @ay D introduce evidence of speci;c
violent acts
by -5 3hy5 6*+8
SUGGESTED ANSWER4
A. %he prosecution may introduce
evidence of the good or even bad moral
character of the victim if it tends to
establish in any reasonable degree
the probability or improbability of the
ofense charged. [Rule 13), sec. (1 %
(3)]. &n this case, the evidence is not
relevant.
B. Nes, D may introduce
evidence of speci;c violent acts by -.
"vidence that one did or did not do a
certain thing at one time is not
admissible to prove that he did or did
not do the same or a similar thing at
another timeI but it may be received
to prove a speci;c intent or
2nowledge, identity, plan, system,
scheme, habit, custom or usage, and
the li2e. (Rule 13), sec. 34).
Confession" Affidavit of 1ecantation (199!)
D. &f the accused on the witness
stand repeats his earlier
uncounseled e9trajudicial
confession implicating his co-
accused in the crime charged, is
that testimony admissible in
evidence against the latter5 )*+,
7. 3hat is the probative value of
a witnessJ
Afidavit of 0ecantation5 )7+,
SUGGESTED ANSWER4
D. Nes. %he accused can testify by
repeating his earlier uncounseled
e9trajudicial confession, because he can
be subjected to cross-e9amination.
7. #n the probative value of an
afidavit of recantation, courts loo2
with disfavor upon recantations because
they can easily be secured from witnesses,
usually through intimidation or for a
monetary consideration, 0ecanted
testimony is e9ceedingly unreliable. %here
is always the probability
(Sec.
49,
that it will be repudiated. (:olina vs. Peole.
'79 SC1A
1.!.)
&acts" 0egislative &acts vs. Ad/udicative &acts ('((?)
.egislative facts and adjudicative facts.
SUGGESTED ANSWER4
.egislative facts refer to facts mentioned
in a statute or in an e9planatory note,
while adjudicative facts are facts found
in a court decision.
6earsay 9vidence ('((')
0omeo is sued for damages for
injuries sufered by the plaintif in a
vehicular accident. (ulieta, a witness in
court, testi;es that 0omeo told her
6(ulieta8 that he 60omeo8 heard
Antonio, a witness to the accident,
give an e9cited account of the
accident immediately after its
occurrence. &s (ulietaLs testimony
admissible against 0omeo over proper
and timely objection5 3hy5 6<+8
SUGGESTED ANSWER4
'o, (ulietaLs testimony is not
admissible against 0omeo, because
while the e9cited account of
Antonio, a witness to the accident,
was told to 0omeo, it was only 0omeo
who told (ulieta about it, which ma2es it
hearsay.
6earsay 9vidence vs. *inion 9vidence ('((?)
:earsay evidence and opinion evidence.
SUGGESTED ANSWER4
:earsay evidence consists of testimony
that is not based on personal 2nowledge
of the person testifying, (see Sec. 3., Rule
13)), while opinion evidence is e9pert
evidence based on the personal
2nowledge s2ill,
e9perience or training of the person
testifying
/".) and evidence of an ordinary
witness on limited matters (Sec. (), /".).
6earsay" 9;cetion" 8ead :an Statute ('((1)
@a9imo ;led an action against
/edro, the administrator of the estate
of deceased (uan, for the recovery of a
car which is part of the latterLs estate.
During the trial, @a9imo presented
witness @ariano who testi;ed that he
was present when @a9imo and (uan
agreed that the latter would pay a
rental of /7F,FFF.FF for the use of
@a9imoLs car for one month after
which (uan should immediately return
the car to @a9imo. /edro objected to the
admission of @arianoLs testimony.
&f you were the judge, would you
sustain /edroLs objection5 3hy5 6<+8
SUGGESTED ANSWER4
'o, the testimony is admissible in
evidence because witness @ariano who
testi;ed as to what @a9imo and (uan, the
deceased person agreed upon, is not
dis?uali;ed to testify on the
agreement. %hose dis?uali;ed are parties
or assignors of parties to a case, or
persons in whose behalf a case is
prosecuted, against the administrator or
(uanLs estate, upon a
Dondee
claim or demand against his estate as to
any matter of fact occurring before
(uanLs death. (Sec. 23 of Rule 13))
6earsay" 9;cetion" 8ying 8eclaration (199!)
0e?uisites of Dying Declaration. )7+8
SUGGESTED ANSWER4
%he re?uisites for the admissibility of
a dying declaration areO 6a8 the
declaration is made by the deceased
under the consciousness of his impending
deathI 6b8 the deceased was at the time
competent as a witnessI 6c8 the declaration
concerns the cause and surrounding
circumstances of the declarantJs deathI
and 6d8 the declaration is ofered in a
6criminal8 case wherein the declarantJs
death is the subject of in?uiry.
(People vs.Santos, 270 SCRA 650.)
ALTERNATI3E ANSWER4
%he 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
&n?uiry, as evidence of the cause and
surrounding circumstances of such death.
(Sec. 37 of Rule 13C.)
6earsay" 9;cetion" 1es 3estae" *inion of
*rdinary Bitness ('((7)
Dencio barged into the house of @arcela,
tied her to a chair and robbed her of
assorted pieces of jewelry and money.
Dencio then brought Candida, @arcelaJs
maid, to a bedroom where he raped her.
@arcela could hear Candida crying and
pleadingO P:uwagY @aawa 2a sa a2inYP
After raping Candida, Dencio =ed from the
house with the loot. Candida then untied
@arcela and rushed to the police station
about a 2ilometer away and told /olice
#ficer 0oberto @aawa that Dencio had
barged into the house of @arcela, tied the
latter to a chair and robbed her of her
jewelry and money. Candida also related
to the police oficer that despite her
pleas, Dencio had raped her. %he
policeman noticed that Candida was
hysterical and on the verge of collapse.
Dencio was charged with robbery with
rape. During the trial, Candida can no
longer be located. 6A+8
a! +f the $rosecution $resents Police
9>icer o3erto Maawa to testif. on what
Can#i#a ha# tol# hi,, woul# such
testi,on. of the $olice,an 3e hearsa.;
47$lain.
SUGGESTED ANSWER4
'o. %he testimony of the policeman is not
hearsay. &t is part of the res gestae. &t is also
an independently relevant statement. %he police
oficer testi;ed of his own personal
2nowledge, not to the truth of CandidaJs
statement, i.e., that she told him, despite her
pleas, Dencio had raped her. (Peo$le v. "a##i,"..
%o. 7'06*, 2e3ruar. 27,&9/9!
3! +f the $olice o>icer will testif. that he
notice# Can#i#a to 3e h.sterical an# on the
verge of colla$se, woul# such testi,on. 3e
consi#ere# as o$inion, hence, ina#,issi3le;
47$lain.
SUGGESTED ANSWER4
'o, it cannot be considered as opinion,
because he was testifying on what he actually
observed. %he last paragraph of !ec. <F, 0ule
D*F, 0evised 0ules of
66
"vidence, e9pressly provides
that a witness may testify on
his impressions of the emotion,
behavior, condition or appearance
of a person.
6earsay" 9;cetions (1999)
a8 De;ne hearsay evidence5 67+8
b8 3hat are the e9ceptions to the
hearsay rule5 67+8
SUGGESTED ANSWER4
a. :earsay evidence may be de;ned
as evidence that consists of testimony
not coming from personal 2nowledge
(Sec. 3., Rule 13), Rules of Court).
:earsay testimony is the testimony of a
witness as to what he has heard other
persons say about the facts in issue.
b. %he e9ceptions to the hearsay rule
areO dying declaration, declaration
against interest, act or
declaration about pedigree, family
reputation or tradition regarding
pedigree, common reputation, part of
the res 3est%e, entries in the course
of business, entries in oficial
records, commercial lists and the
li2e, learned treatises, and testimony or
deposition at
aformer proceeding. (37 to 47, Rule
13C, Rules of Court)
6earsay" 9;cetions" 8ying 8eclaration (1999)
%he accused was charged with robbery
and homicide. %he victim sufered
several stab wounds. &t appears that
eleven 6DD8 hours after the crime,
while the victim was being brought
to the hospital in a jeep, with his brother
and a policeman as companions, the victim
was as2ed certain ?uestions which
he answered, pointing to the accused as
his assailant. :is answers were put down
in writing, but since he was a in a critical
condition, his brother and the policeman
signed the statement. &s the statement
admissible as a dying declaration5 "9plain.
67+8
SUGGESTED ANSWER4
Nes. %he statement is admissible as a
dying declaration if the victim
subse?uently died and his answers were
made under the consciousness of
impending death (Sec. 37 of Rule 13)).
%he fact that he did not sign the statement
point to the accused as his assailant,
because he was in critical condition,
does not afect its admissibility as a
dying declaration. A dying declaration
need not be in writing (Peo$le v.
=iovicente, 2/6 SC) &!
6earsay" )nalicable ('((.)
R was charged with robbery. #n the
strength of a warrant of arrest issued by
the court, R was arrested by police
operatives. %hey seiGed from his person a
handgun. A charge for illegal possession
of ;rearm was also ;led against him. &n
a press conference called by the police, R
admitted that he had robbed the victim of
jewelry valued at /<FF,FFF.FF.
%he robbery and illegal possession of
;rearm cases were tried jointly. %he
prosecution presented in evidence a
newspaper clipping of the report to the
reporter who was present during the press
conference
Dondee
stating that R admitted the robbery.
&t li2ewise presented a certi;cation of
the /'/ $irearms and "9plosive #fice
attesting that the accused had no
license to carry any ;rearm. %he
certifying oficer, however, was not
presented as a witness. Both pieces of
evidence were objected to by the defense.
6K+8
a8 &s the newspaper clipping admissible
in evidence against R5
b8 &s the certi;cation of the /'/
$irearm and "9plosive #fice
without the certifying oficer
testifying on it admissible in evidence
against R5
SUGGESTED ANSWER4
6a8 Nes, the newspaper clipping is
admissible in
evidence against R. regardless of the truth or
falsity of a statement, the hearsay rule does
not apply and the statement may be shown
where the fact that it is made is
relevant. "vidence as to the ma2ing of such
statement is not secondary but
primary, for the statement itself may
constitute a fact in issue or be
circumstantially relevant as to the
e9istence of such fact. ("otesco
+nvest,ent Cor$oration vs. Chatto, 2&0
SC) &/ F&992D!
6b8 Nes, the certi;cation is
admissible in evidence against R because
a written statement signed by an oficer
having the custody of an oficial record or by
his deputy that after diligent search no
record or entry of a speci;ed tenor is found
to e9ist in the records of his ofice,
accompanied by a certi;cate as above
provided, is admissible as evidence that
the records of his ofice contain no such
record or entry.
(Sec. 2* of Rule 132).
Judicial =otice" 9vidence ('((7)
"9plain brie=y whether the 0%C may,
motu 8ro8rio, ta2e judicial notice ofO
6<+8
&. 5he street na,e of
,etha,$heta,ine h.#ro6
chlori#e is sha3u.
SUGGESTED ANSWER4
%he 0%C may motu 8ro8rio ta2e judicial
notice of the street name of
methamphetamine hydrochloride is shabu,
considering the chemical composition of
shabu. (Peo$le v. Macasling, "M, %o.
90('2, Ma. 27,
&99(!
2. 9r#inances a$$rove# 3.
,unici$alities un#er its territorial
Auris#iction;
SUGGESTED ANSWER4
&n the absence of statutory authority, the 0%C
may not ta2e judicial notice of ordinances
approved by municipalities under their
territorial jurisdiction, e9cept on appeal from
the municipal trial courts, which too2
judicial notice of the ordinance in
?uestion. (:.S. v. Blanco, "., %o. &2'(*,
%ove,3er
9,&9&7; :.S. v. <ernan#eC, ".. %o. 9699,
)ugust 26, &9&*!
(. 2oreign laws;
SUGGESTED ANSWER4
(Sec. 4.. Rule
13)).
(Sec. 1 of
Rule
%he 0%C may not generally ta2e judicial
notice of
foreign laws (+n re 4state of
-ohnson, ".. %o. &2767,
%ove,3er &6, &9&/; 2lue,er v. <i7,
".. %o. (26(6, March &7, &9(0!,
which must be proved li2e any other
matter of fact (S. -oe 8ieng v. S. Iuia,
".. %o. '7&/, March &9, &9&0! e9cept
in a few instances, the court in the
e9ercise of its sound judicial
discretion, may ta2e notice of
foreign laws when /hilippine courts
are evidently familiar with them, such
as the !panish Civil Code, which had
ta2en efect in the /hilippines, and
other allied legislation. (Par#o v.
e$u3lic, ".. %o. 86
22'/ -anuar. 2(, &9*0; 0elga#o v.
e$u3lic, ".. %o. 86 2*'6, -anuar. .
2/, &9*0!
'. ules an# egulations
issue# 3. ?uasi6 Au#icial
3o#ies i,$le,enting statutes;
SUGGESTED ANSWER4
%he 0%C may ta2e judicial notice
of 0ules and 0egulations
issued by ?uasi-judicial
bodies implementing statutes,
because they are capable of
un?uestionable demonstration
(Chatta,al v. Collector of Custo,s,
".. %o. &6('7, %ove,3er (,&920!,
unless the law itself considers such
rules as an integral part of the
statute, in which case judicial notice
becomes mandatory.
*. a$e ,a. 3e co,,itte#
even in $u3lic $laces.
SUGGESTED ANSWER4
%he 0%C may ta2e judicial notice of the fact
that rape may be committed even in public
places. %he Ppublic settingP of the rape is
not an indication of consent.
(Peo$le v. 5ongson, ".. %o. 9&26&,
2e3ruar. &/, &99&!
%he !upreme Court has ta2en judicial
notice of the fact that a man overcome
by perversity and beastly passion chooses
neither the time, place, occasion nor victim.
(Peo$le v, Barcelona, ".. %o. /2*/9,
9cto3er (&,
&990!
Judicial =otice" 9vidence" &oreign 0a2 (1997)
a8 1ive three instances when a
/hilippine court can ta2e judicial
notice of a foreign law.
b8 :ow do you prove a written foreign
law5
c8 !uppose a foreign law was pleaded as
part of the defense of defendant but
no evidence was presented to prove
the e9istence of said law, what is the
presumption to be ta2en by the court
as to the wordings of said lawP5
SUGGESTED ANSWER4
6a8 %he three instances when a /hilippine
court can ta2e judicial notice of a foreign
law areO 6D8 when the /hilippine courts
are evidently familiar with the foreign
law (:or%n. Bol. (, 8. 34, 19*) e"ition); 678
when the
foreign law refers to the law of nations
129) and 6*8 when it refers to a
published treatise, periodical or
pamphlet on the subject of law if the
court ta2es judicial notice of the fact that
the writer thereof is recogniGed in his
profession or calling as
e9pert on the subject
Dondee
6b8 A written foreign law may be
evidenced by an oficial publication
thereof or by a copy attested by the
oficer having the legal custody of the
record, or by his deputy, and accompanied.
&f the record is not 2ept in the /hilippines,
with a certi;cate that such oficer has
the custody, if the ofice in which the
record is 2ept is in a foreign country,
the certi;cate may be made by a
secretary of the embassy or legation,
consul general, consul, vice-consul, or
consular agent or by any oficer in the
foreign service of the /hilippines stationed
in the foreign country in which the record
is 2ept, and authenticated by the seal of
his ofice (Sec. 2', ule &(2, Gala,ea v. C),
22/
SC) 2(!.
6c8 %he presumption is that the
wordings of the foreign law are the
same as the local law. (%orthwest
9rient )irlines v. Court of )$$eals, 2'&
SC) &92; Moran, =ol. 6. $age (', &9/0
e#ition; 8i, v. Collector of Custo,s, (6
Phil. '72!. %his is 2nown as the
/0#C"!!A. /0"!@/%&#'.
:emorandum (199+)
R states on direct e9amination that he
once 2new the facts being as2ed but
he cannot recall them now. 3hen
handed a written record of the facts he
testi;es that the facts are correctly
stated, but that he has never seen the
writing before.
&s the writing admissible as
past recollection recorded5 "9plain,
SUGGESTED ANSWER4
'o, because for the written record to be
admissible as past recollection recorded.
&t must have been written or recorded by
R or under his direction at the time when
the fact occurred, or immediately
thereafter, or at any other time when the
fact was fresh in his memory and he 2new
that the same was correctly written or
recorded. (Sec. 1. of Rule 132) But in this
case R has never seen the writing before.
*ffer of 9vidence (1997)
A trial court cannot ta2e into
consideration in deciding a case an
evidence that has not been
Pformally oferedP. 3hen are the
following pieces of evidence formally
ofered5
6a8 %estimonial evidence
6b8 Documentary evidence
6c8 #bject evidence
SUGGESTED ANSWER4
6a8 %estimonial evidence is formally
ofered at the time the witness is called to
testify. (Rule 132. Sec. 3(, 1rst 8%r.).
6b8 Documentary evidence is formally
ofered after the presentation of the
testimonial evidence. (Rule 132, Sec. 3(,
secon" 8%r.).
6c8 %he same is true with object evidence.
&t is also ofered after the presentation
of the testimonial evidence.
66
*ffer of 9vidence" res inter alios acta ('((.)
R and N were charged with murder.
pon application of the prosecution,
N was discharged from the
&nformation to be utiliGed as a state
witness. %he prosecutor presented N as
witness but forgot to state the purpose
of his testimony much less ofer it in
evidence. N testi;ed that he and R
conspired to 2ill the victim but it was R
who actually shot the victim. %he
testimony of N was the only material
evidence establishing the guilt of R.
N was thoroughly cross- e9amined
by the defense counsel. After
the prosecution rested its case, the
defense ;led a motion for demurrer to
evidence based on the following
grounds.
6a8 %he testimony of N should
be e9cluded because its purpose
was not initially stated and it was
not formally ofered in evidence
as re?uired by !ection *>,
0ule D*7 of the 0evised 0ules
of "videnceI and
6b8 NLs testimony is not
admissible against R pursuant to
the rule on Tres inter alios actaU.
0ule on the motion for demurrer to
evidence on the
above grounds. 6K+8
SUGGESTED ANSWER4
%he demurrer to the evidence
should be denied becauseO
a8 %he testimony of N should not
be e9cluded because the
defense counsel did not object to his
testimony despite the fact that the
prosecutor forgot to state its
purpose or ofer it in evidence.
@oreover, the defense counsel
thoroughly cross- e9amined N and
thus waived the objection.
b8 %he res inter %lios %ct% rule does not
apply because N testi;ed in open
court and was subjected to cross
e9amination.
*ffer of 9vidence" %estimonial - 8ocumentary (199?)
3hat is the diference between
an ofer of testimonial evidence
and an ofer of documentary
evidence5
SUGGESTED ANSWER4
An ofer of testimonial evidence is made
at the time the witness is called to
testify, while an ofer of documentary
evidence is made after the presentation
of a partyLs testimonial evidence. (Sec.
3(, Rule 132).
*inion 1ule (199?)
At 'olanLs trial for possession and
use of the prohibited drug, 2nown as
TshabuO, his girlfriend 4im, testi;ed that
on a particular day, he would see 'olan very
prim and proper, alert and sharp, but that
three days after, he would appear haggard,
tired and overly nervous at the slightest
sound he would hear. 'olan objects to the
admissibility of 4imLs testimony on the
ground that 4im merely stated her
opinion without having been ;rst ?uali;ed
as e9pert witness.
!hould you, as judge, e9clude the
testimony of 4im5
Dondee
SUGGESTED ANSWER4
'o. %he testimony of 4im should not
be e9cluded. "ven though 4im is not an
e9pert witness, 4im may testify on her
impressions of the emotion, behavior,
condition or appearance of a person.
(Sec. (), l%st 8%r., Rule 13)).
Parol 9vidence 1ule ('((1)
/edro ;led a complaint against .ucio for the
recovery of a sum of money based on a
promissory note e9ecuted by .ucio. &n his
complaint, /edro alleged that although
the promissory note says that it is
payable within D7F days, the truth is that the
note is payable immediately after HF days
but that if /edro is willing, he may, upon re?uest
of .ucio give the latter up to D7F days to pay the
note. During the hearing, /edro testi;ed that
the truth is that the agreement between him
and .ucio is for the latter to pay
immediately after ninety dayLs time. Also,
since the original note was with .ucio and the
latter would not surrender to /edro the original
note which .ucio 2ept in a place about one
dayLs trip from where he received the notice
to produce the note and in spite of such notice to
produce the same within si9 hours from receipt
of such notice, .ucio failed to do so. /edro
presented a copy of the note which was
e9ecuted at the same time as the original
and with identical contents.
a8 #ver the objection of .ucio, will /edro
be allowed to testify as to the true
agreement or contents of the promissory
note5 3hy5 67+8
b8 #ver the objection of .ucio, can /edro
present a copy of the promissory note
and have it admitted
as valid evidence in his favor5 3hy5 6*+8
SUGGESTED ANSWER4
a8 Nes, because /edro has alleged in his
complaint that the promissory note does
not e9press the true intent and
agreement of the parties. %his is an
e9ception to the parol evidence rule.
[Sec. 9(b) of Rule 13), Rules of Court]
b8 Nes, the copy in the possession of
/edro is a
duplicate original and with identical
contents.
@oreover, the failure of .ucio to
produce
the original of the note is e9cusable because he
was not given reasonable notice, as re?uirement
under the 0ules before secondary evidence
may be presented.
(Sec. . of Rule 13), Rules of Court)
=ote> The pro!""or# $o%e !" &$ &'%!o$&()e *o'+e$% &$* %he
or!,!$&) or & 'op# %hereo- "ho+)* h&.e (ee$ &%%&'he* %o
%he 'op)&!$%. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). I$
"+'h & '&"e/ %he ,e$+!$e$e"" &$* *+e e0e'+%!o$ o- %he $o%e/ !-
$o% *e$!e* +$*er o&%h/ 1o+)* (e *eee* &*!%%e*.
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
Preonderance vs. Substantial 9vidence ('((.)
Distinguish preponderance of
evidence from substantial evidence. >+
SUGGESTED ANSWER4
of Rule
13)].
[Sec.
4(b)
66
/0"/#'D"0A'C" #$ "-&D"'C"
means that the evidence as a
whole adduced by one side is
superior to that of the other. %his is
applicable in civil cases. (Sec. & of
ule &((; Munici$alit. of Monca#a v.
CaAuigan, 2& Phil, &/' F&9&2D!.
!B!%A'%&A. "-&D"'C" is
that amount of relevant evidence
which a reasonable mind might
accept as ade?uate to justify a
conclusion. %his is applicable in
case ;led before administrative or
?uasi- judicial bodies. (Sec. ( of Rule
133)
Privilege Communication (199!)
C is the child of the spouses :
and 3. : sued his wife 3 for
judicial declaration of nullity of
marriage under Article *K of the
$amily Code. &n the trial, the
following testi;ed over the objection
of 3O C, : and D, a doctor of
medicine who used to treat 3. 0ule
on 3Js objections which are the
followingO
D.: cannot testify against her
because of the rule on marital
privilegeI )D+,
7.C cannot testify against her
because of the doctrine on parental
privilegeI and )7+,
*.D cannot testify against her
because of the doctrine of
privileged communication between
patient and physician. )7+,
SUGGESTED ANSWER4
D. %he rule of marital privilege cannot be
invo2ed in the annulment case under 0ule
*K of the $amily Code because it is a civil
case ;led by one against the other,
(Sec. 22 , Rule 13). Rules of Court.)
7. %he doctrine of parental privilege
cannot li2ewise be invo2ed by 3 as
against the testimony of C, their child.
C may not be compelled to testify but is
free to testify against her. (Sec. 2(.
Rule 13). Rules of Court; -rt. 21(, #%mil$
Co"e.)
*. D, as a doctor who used to treat 3, is
dis?uali;ed to testify against 3 over
her objection as to any advice or
treatment given by him or any
information which he may have
ac?uired in his professional
capacity. (Sec. 24 [c], Rule 13). Rules of
Court.)
ALTERNATI3E ANSWER4
&f the doctorJs testimony is
pursuant to the re?uirement of
establishing the psychological
incapacity of 3, and he is the e9pert called
upon to testify for the purpose, then it
should be allowed.
(e$u3lic vs. Court of )$$eals an#
Molina, 26S SC) &9/.!
Privilege Communication" :arital Privilege (19!9)
#dy sued spouses Cesar and Baby for a
sum of money and damages. At the trial,
#dy called Baby as his ;rst witness. Baby
objected, joined by Cesar, on the ground
that she may not be compelled to testify
against her husband. #dy insisted and
contended that after all, she would just
be ?uestioned about a conference they
had with the barangay captain, a
Dondee
matter which is not con;dential in
nature. %he trial court ruled in favor of
#dy. 3as the ruling proper5 3ill your
answer be the same if the matters to
be testi;ed on were 2nown to Baby or
ac?uired by her prior to her marriage to
Cesar5 "9plain.
SUGGESTED ANSWER4
'o. nder the 0ules on "vidence, a wife
cannot be e9amined for or against her
husband without his consent, e9cept in
civil cases by one against the other, or in a
criminal case for a crime committed by
one against the other. !ince the case
was ;led by #dy against the spouses
Cesar and Baby, Baby cannot be compelled
to testify for or against Cesar without his
consent. (8eCa,a vs. o#rigueC, 2( SC)
&&66!.
%he answer would be the same if the
matters to be testi;ed on were 2nown
to Baby or ac?uired by her prior to her
marriage to Cesar, because the
marital dis?uali;cation rule may be
invo2ed with respect to testimony on
any fact. &t is immaterial whether such
matters were 2nown to Baby before
or after her marriage to Cesar.
Privilege Communication" :arital Privilege ('((()
-ida and 0omeo are legally
married. 0omeo is charged to court
with the crime of serious physical
injuries committed against !elmo, son of
-ida, step- son of 0omeo. -ida
witnessed the in=iction of the injuries
on !elmo by 0omeo. %he public
prosecutor called -ida to the witness
stand and ofered her testimony as
an eyewitness. Counsel for 0omeo
objected on the ground of the marital
dis?uali;cation rule under the 0ules of
Court.
a8 &s the objection valid5 6*+8
b8 3ill your answer be the same if
-idaLs testimony is ofered in a civil
case for recovery of personal
property ;led by !elmo against
0omeo5 67+8
SUGGESTED ANSWER4
6a8 'o. 3hile neither the husband
nor the wife may testify for or against
the other without the consent of the
afected spouse, one e9ception is if the
testimony of the spouse is in a
criminal case for a crime committed by
one against the other or the latterLs
direct descendants or ascendants. (Sec,
22, Rule 13)). %he case falls under this
e9ception because !elma is the direct
descendant of the spouse -ide.
6b8 'o. %he marital dis?uali;cation rule
applies this time. %he e9ception provided by the
rules is in a civil case by one spouse against
the other. %he case here involves a case by
!elmo for the recovery of personal property
against -idaLs spouse, 0omeo.
Privilege Communication" :arital Privilege ('((?)
RNS, an alien, was criminally charged of
promoting and facilitating child prostitution
and other se9ual abuses under 0ep. Act
'o. EKDF. %he principal witness against
him was his $ilipina wife, ABC. "arlier,
she had complained that RNSJs hotel was
(9r#ono v.
0a?uigan, 62
(Sec. 22,
Rule
being used as a center for se9
tourism and child
trafic2ing. %he defense counsel for RNS
objected to
the testimony of
ABC
at the trial of the
child
prostitution case and the
introduction of the afidavits
she e9ecuted against her husband
as a violation of espousal
con;dentiality and marital
privilege rule. &t turned out that
D"$, the minor daughter of ABC
by her ;rst husband who was a
$ilipino, was molested by RNS
earlier. %hus, ABC had ;led for
legal separation from RNS since
last year.
@ay the court admit the testimony
and afidavits of the wife, ABC,
against her husband, RNS, in the
criminal case involving child
prostitution5 0eason. 6<+8
SUGGESTED ANSWER4
Nes. %he court may admit the
testimony and afidavits of the wife
against her husband in the criminal
case where it involves child
prostitution of the wifeJs daughter. &t
is not covered by the marital
privilege rule. #ne e9ception thereof
is where the crime is committed by
one against the other or the
latterJs direct descendants or
ascendants.
13)). A crime by the husband against
the daughter is a crime against the
wife and directly attac2s or vitally
impairs the conjugal relation.
SC) 270 F&97*D!.
Privilege Communication" :arital Privilege ('((+)
.eticia was estranged from her husband
/aul for more than a year due to his
suspicion that she was having an afair
with @anuel their neighbor. !he was
temporarily living with her sister in /asig
City. $or un2nown reasons, the house of
.eticiaJs sister was burned, 2illing the
latter. .eticia survived. !he saw her
husband in the vicinity during the incident.
.ater he was charged with arson in an
&nformation ;led with the 0egional %rial
Court, /asig City. During the trial, the
prosecutor called .eticia to the witness
stand and ofered her testimony to prove
that her husband committed arson. Can
.eticia testify over the objection of her
husband on the ground of marital
privilege5 6<+8
ALTERNATI3E ANSWER4
'o, .eticia cannot testify over the
objection of her husband, not under
marital privilege which is inapplicable
and which can be waived, but she would be
barred under !ec. 77 of 0ule D*F, which
prohibits her from testifying and which
cannot be waived
()lvareC v. a,ireC, ".. %o. &'('(9,
9cto3er &', 200*!.
ALTERNATI3E ANSWER4
Nes, .eticia may testify over the
objection of her husband. %he
dis?uali;cation of a witness by reason of
marriage under !ec. 77, 0ule D*F of the
0evised 0ules of Court has its e9ceptions as
where the marital relations are so
strained that there is no more
harmony to be preserved. %he acts of /aul
eradicate all major aspects of marital
life. #n the other hand, the !tate has an
interest in punishing the guilty and
Dondee
e9onerating the innocent, and must have
the right to ofer the testimony of
.eticia over the objection of her
husband ()lvareC v. a,ireC, ".. %o.
&'('(9,
9cto3er &', 200*!.
1emedy" 0ost 8ocuments" Secondary 9vidence (199')
Aja9 /ower Corporation, a utility
company, sued in the 0%C to enforce a
supposed right of way over a property
owned by !implicio. At the ensuing trial,
Aja9 presented its retired ;eld auditor
who testi;ed that he 2now for a fact that a
certain sum of money was periodically paid
to !implicio for some time as
consideration for a right of way pursuant to a
written contract. %he original contract
was not presented. &nstead, a purported
copy, identi;ed by the retired ;eld auditor
as such, was formally ofered as part of his
testimony. 0ejected by the trial court, it was
;nally made the subject of an ofer of proof
by Aja9.
Can Aja9 validly claim that it had
suficiently met its burden of proving
the e9istence of the contract
establishing its right of way5 "9plain,
SUGGESTED ANSWER4
'o. Aja9 had not suficiently met the
burden of proving the e9istence of the
written contract because. &t had not laid
the basis for the admission of a
purported copy thereof as secondary
evidence. Aja9 should have ;rst proven the
e9ecution of the original document and its
loss or destruction. (Sec. ( of Rule 13))
%estimony" )ndeendent 1elevant Statement (1999)
A overheard B call R a thief. &n an
action for defamation ;led by R against
B, is the testimony of A ofered to
prove the fact of utterance i.e., that
B called R a thief, admissible in
evidence5 "9plain. 67+8
SUGGESTED ANSWER4
Nes. %he testimony of A who overheard B
call R a thief is admissible in evidence as
an independently relevant statement. &t is
ofered in evidence only to prove the
tenor thereof, not to prove the truth of the
facts asserted therein. &ndependently
relevant statements include statements
which are on the very facts in issue or
those which are circumstantial evidence
thereof. %he hearsay rule does not apply.
(See Peo$le vs. "a##i, &70 SC) 6'9!
Bitness" Cometency of t,e Bitness vs. Credibility of
t,e Bitness ('((?)
Distinguish Competency of the
witness and credibility of the witness.
SUGGESTED ANSWER4
Competency of the witness refers to a
witness who can perceive, and
perceiving, can ma2e 2nown his
perception to others (Sec. 2) of Rule 13)),
while credibility of the witness refers to a
witness whose testimony is believable.
66
Bitness" 9;amination of a C,ild Bitness" via 0ive$
0in@ %5 ('((7)
3hen may the trial court order that
the testimony of a child be ta2en by
live-lin2 television5 "9plain.
SUGGESTED ANSWER4
%he testimony of a child may be
ta2en by live-lin2 television if there
is a substantial li2elihood that the
child would sufer trauma from
testifying in the presence of the
accused, his counsel or the
prosecutor as the case may be. %he
trauma must of a 2ind which would
impair the completeness or
truthfulness of the testimony of the
child. (See Sec. 2(, Rule on 9D%min%tion
of % C0il" Eitness).
Bitness" 9;amination of Bitnesses (1997)
a8 Aside from as2ing a witness
to e9plain and supplement his
answer in the cross-e9amination,
can the proponent as2 in re-
direct e9amination ?uestions on
matters not dealt with during
cross- e9amination5
b8 Aside from as2ing the witness on
matters stated in his re-direct
e9amination, can the opponent in
his re-cross-e9amination as2
?uestions on matters not
dealt with during the re-direct5
c8 After plaintif has formally
submitted his evidence, he
realiGed that he had forgotten to
present what he considered
an important
evidence. Can he recall a witness5
SUGGESTED ANSWER4
6a8Nes, on redirect e9amination, ?uestions on
matters not dealt with during the cross-
e9amination may be allowed by the court
in its discretion. (Sec. 7 of Rule 132).
6b8 Nes, the opponent in his re-cross-
e9amination may also as2 ?uestions on such
other matters as may
be allowed by the court in its
discretion. (Sec. *. Rule 132).
6c8 Nes, after formally submitting his
evidence, the plaintif can recall a witness
with leave of court. %he court may grant or
withhold leave in its discretion as the
interests of justice may re?uire. (Sec. 9. Rule
132).
Bitness" 9;amination of Bitnesses ('((')
&s this ?uestion on direct e9amination
objectionableO T3hat happened on (uly
D7, DHHHU5 3hy5 67+8
SUGGESTED ANSWER4
%he ?uestion is objectionable because it
has no basis, unless before the ?uestion
is as2ed the proper basis is laid.
Bitness" EtiliDed as State Bitness" Procedure ('((+)
As counsel of an accused charged with
homicide, you are convinced that he
can be utiliGed as a state witness.
3hat procedure will you ta2e5 67.<+8
SUGGESTED ANSWER4
As counsel of an accused charged with
homicide, the procedure that can be
followed for the accused to be utiliGed
as a state witness is to as2 the
/rosecutor to recommend that the
accused be made a state witness.
Dondee
&t is the /rosecutor who must
recommend and move for the
acceptance of the accused as a state
witness. %he accused may also
apply under the 3itness /rotection
/rogram.
SPECIAL PROCEEDINGS
Cancellation or Correction" 9ntries Civil 1egistry ('((7)
:elen is the daughter of "liGa, a $ilipina, and
%ony, a Chinese, who is married to another
woman living in China. :er birth certi;cate
indicates that :elen is the legitimate child
of %ony and "liGa and that she is a
Chinese citiGen. :elen wants her birth
certi;cate corrected by changing her
;liation from PlegitimateP to PillegitimateP
and her citiGenship from PChineseP to
P$ilipinoP because her parents were not
married. 3hat petition should :elen ;le and
what procedural re?uirements must be
observed5 "9plain. 6<+8
SUGGESTED ANSWER4
A petition to change the record of birth by
changing the ;liation from PlegitimateP
to PillegitimateP and petitionerJs
citiGenship from PChineseP to P$ilipinoP
because her parents were not
married, does not involve a simple
summary correction, which could
otherwise be done under the authority
of 0.A. 'o. HF>A. A petition has to be
;led in a proceeding under 0ule DFA of
the 0ules of Court, which has now been
interpreted to be adversarial in nature.
(e$u3lic v. =alencia, ".. %o. 86(2&/&,
March *, &9/6! /rocedural re?uirements
includeO 6a8 ;ling a veri;ed petitionI 6b8
naming as parties all persons who have or
claim any interest which would be
afectedI 6c8 issuance of an order ;9ing
the time and place of hearingI 6d8 giving
reasonable notice to the parties named in
the petitionI and 6e8 publication of the
order once a wee2 for three consecutive
see2s in a newspaper of general
circulation. (Rule 1)*, Rules of Court)
9sc,eat Proceedings ('((')
!uppose the property of D was declared
escheated on (uly D, DHHF in escheat
proceedings brought by the !olicitor
1eneral. 'ow, R, who claims to be an
heir of D, ;led an action to
recover the escheated property. &s the
action viable5 3hy5 67+8
SUGGESTED ANSWER4
'o, the action is not viable. %he action to
recover escheated property must be ;led
within ;ve years from (uly D, DHHF or be forever
barred. (Rule 91, sec. 4).
9;tra$/udicial Settlement of 9state ('((7)
'estor died intestate in 7FF*, leaving no
debts. :ow may his estate be settled by his
heirs who are of legal age and have legal
capacity5 "9plain. 67+8
SUGGESTED ANSWER4
&f the decedent left no will and no debts,
and the heirs are all of age, the parties may,
without securing letters of administration,
divide the estate among themselves by means
of a public instrument or by
stipulation in a pending action for
partition and shall
;le a bond with the register of deeds in
an amount
e?uivalent to the
value
of the personal
property
involved as certi;ed to under
oath by the parties concerned.
%he fact of e9tra-judicial settlement
shall be published in a
newspaper of general circulation
once a wee2 for three
consecutive wee2s in the
province. (Sec. 1, Rule 74, Rules of
Court)
6abeas Corus (199.)
0o9anne, a widow, ;led a petition
for habeas corpus with the Court of
Appeals against @ajor Amor who is
allegedly detaining her DA-year old
son Bong without authority of the
law.
After @ajor Amor had a ;led a
return alleging the cause of
detention of Bong, the Court of
Appeals promulgated a resolution
remanding the case to the 0%C for a
full-blown trial due to the con=icting
facts presented by the parties in
their pleadings. &n directing the
remand, the court of Appeals relied on
!ec.H6D8, in relation to !ec. 7D of B/
D7H conferring upon said Court the
authority to try and decide habeas
corpus cases concurrently with the
0%Cs.
Did the Court of Appeals act
correctly in remanding the petition to
the 0%C5 3hy5
SUGGESTED ANSWER4
'o, because while the CA has
original jurisdiction over habeas corpus
concurrent with the 0%Cs, it has no
authority for remanding to the latter
original actions ;led with the former.
#n the contrary, the CA is speci;cally
given the power to receive evidence
and perform any and all acts
necessary to resolve factual issues
raised in cases falling within its original
jurisdiction.
ALTERNATI3E ANSWER4
Nes, because there is no prohibition in
the law against a superior court
referring a case to a lower court
having concurrent jurisdiction. %he
!upreme Court has referred to the CA
or the 0%C cases falling within their
concurrent jurisdiction.
6abeas Corus (199!)
A was arrested on the strength of a
warrant of arrest issued by the 0%C in
connection with an &nformation for
:omicide. 3, the live-in partner of A
;led a petition for habeas corpus
against AJs jailer and police
investigators with the Court of Appeals.
D. Does 3 have the personality to ;le
the petition for habeas corpus5 )7+,
7. &s the petition tenable5 )*+,
SUGGESTED ANSWER4
D. Nes. 3, the live-in partner of
A, has the personality to ;le the
petition for habeas corpus because it
may be ;led by Psome person in his
behalf.P (Sec. 3. Rule 1)2. Rules of Court.)
Dondee
7. 'o. %he petition is not tenable
because the warrant of arrest was issued
by a court which had (urisdiction to issue
it (Sec. 4, Rule 1)2 Rules of Court)
6abeas Corus ('((.)
3idow A and her two children, both girls,
aged A and D7 years old, reside in
Angeles City, /ampanga. A leaves her two
daughters in their house at night because
she wor2s in a brothel as a
prostitute. 0ealiGing the danger to the
morals of these two girls, B, the father of
the deceased husband of A, ;les a
petition for habeas corpus against A for the
custody of the girls in the $amily Court
in Angeles City. &n said petition, B
alleges that he is entitled to the custody
of the two girls because their mother is
living a disgraceful life. %he court issues the
writ of habeas corpus. 3hen A learns of
the petition and the writ, she brings her
two children to Cebu City. At the
e9pense of B the sherif of the said
$amily Court goes to Cebu City and serves
the writ on A. A ;les her comment on the
petition raising the following defensesO
a8 %he enforcement of the writ of
habeas corpus in Cebu City is illegalI
and
b8 B has no personality to institute the
petition. K+ 0esolve the petition in the
light of the above defenses
of A. 6K+8
SUGGESTED ANSWER4
6a8 %he writ of habeas corpus issued
by the $amily 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 $amily
Court belongs, unli2e the writ granted
by the !upreme Court or Court of
Appeals which is enforceable anywhere
in the /hilippines. (Sec. 20 of
ule on Custo#. of Minors an# Krit of
<a3eas Cor$us in elation to Custo#. of
Minors. ().M. %o. 0(60'60'6SC; see also
Sec. ' of ule &02, ules of Court.!
6b8 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 %n" 13, /".)
)ntestate Proceedings ('((')
R ;led a claim in the intestate proceedings
of D. DLs administrator denied liability and
;led a counterclaim against R. RLs claim was
disallowed.
6D8 Does the probate court still have
jurisdiction to allow the claim of DLs
administrator by way of ofset5 3hy5 67+8
678 !uppose DLs administrator did not
allege any claim against R by way
of ofset, can DLs administrator
prosecute the claim in an independent
proceedingC whyC 6*+8
SUGGESTED ANSWER4
66
6D8 'o, because since the claim of R
was disallowed, there is no amount
against which to ofset the claim of
DLs administrator.
678 Nes, DLs administrator can
prosecute the claim in an
independent proceeding since the
claim of R was disallowed. &f R
had a valid claim and DLs
administrator did not allege any
claim against R by way of ofset,
his failure to do so would bar his
claim forever. (Rule *., sec. 1)).
)ntestate Proceedings" 8ebts of t,e 9state ('((')
A, B and C, the only heirs in
DLs 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. %hereafter, C
died and proceedings for the settlement
of his estate were ;led in the 0%C-
MueGon City. DLs administrator then
;led a motion in the probate court
60%C-@anila8, praying that one of the
lots assigned to C in the project of
partition be turned over to him to
satisfy debts corresponding to CLs
portion. %he motion was opposed by
the administrator of CLs estate. :ow
should the 0%C-@anila resolve the
motion of DLs administrator5 "9plain.
6*+8
SUGGESTED ANSWER4
%he motion of DLs administrator should
be granted. %he assignment of the two lots
to C was premature because the debts of
the estate had not been fully paid. Fule
90, sec. &; e.es v. Barreto60atu, &9 SC) /*
(&967!D.
Judicial Settlement of 9state ('((7)
!tate the rule on venue in judicial
settlement of estate of deceased
persons. 67+8
SUGGESTED ANSWER4
&f the decedent is an inhabitant of the
/hilippines at the time ofJ his death,
whether a citiGen or an alien, the venue
shall be in the 0%C in the province in
which he resides at the time of his death, not
in the place where he used to live. (-ao v.
Court of )$$eals,
".. %o. &2/(&', Ma. 29, 2002!
&f he is an inhabitant, of a foreign country,
the 0%C of any province or city in which he
had estate shall be the venue. %he court
;rst ta2ing cogniGance of the case shall
e9ercise jurisdiction to the e9clusion of all
other courts. 3hen the marriage is
dissolved by the death of the husband
or wife, the community property shall
be inventoried, administered and
li?uidated, and the debts thereof paid, in
the testate or intestate proceedings of the
deceased spouse. &f both spouses have
died, the conjugal partnership shall be
li?uidated in the testate or intestate
proceedings of either. (Sees. & an# 2, ule
7(, ules of Court!
Probate of 0ost Bills (1999)
3hat are the re?uisites in order
that a lost or destroyed 3ill may
be allowed5 67+8
Dondee
AJs 3ill was allowed by the Court.
'o appeal was ta2en from its
allowance. %hereafter, N, who was
interested in the estate of A,
discovered that the 3ill was not
genuine because AJs signature was
forged by R. A criminal action for
forgery was instituted against R.
@ay the due e9ecution of the 3ill
be validly ?uestioned in such
criminal action5 67+8
SUGGESTED ANSWER4
a. &n order that a lost or destroyed
will may be allowed, the following
must be complied withO
D. the e9ecution and validity of
the same should be establishedI
7. the will must have been in
e9istence at the time of the
death of the testator, or shown
to have been fraudulently or
accidentally destroyed in the
lifetime of the testator
without his 2nowledgeI and
*. its provisions are clearly and
distinctly
proved by at least two credible
witnesses.
(Sec. ., Rule 7. of t0e Rules of Court)
SUGGESTED ANSWER4
b. 'o. %he allowance of the will from
which no appeal was ta2en is conclusive
as to its due e9ecution. (Sec. 1 of Rule 7(.)
Due e9ecution includes a ;nding that the
will is genuine and not a forgery.
Accordingly, the due e9ecution of the
will cannot again be ?uestioned in a
subse?uent proceeding, not even in a
criminal action for forgery of the will.
Probate of Bill ('((.)
A, a resident of @alolos, Bulacan, died
leaving an estate located in @anila, worth
/7FF,FFF.FF. &n what court, ta2ing into
consideration the nature of jurisdiction
and of venue, should the probate
proceeding on the estate of A be instituted5
6>+8
SUGGESTED ANSWER4
%he probate proceeding on the estate of A
should be instituted in the @unicipal %rial
Court of @alolos, Bulacan which has
jurisdiction, because the estate is valued
at /7FF,FFF.FF, and is the court of
proper venue because A was a resident
of @alolos at the time of his death. (Sec.
(( of BP &29 as a,en#e# 3. )
769&; Sec. & of ule 7(!.
Probate of Bill ('((7)
After .uluJs death, her heirs brought her last will
to a lawyer to obtain their respective shares in
the estate. %he lawyer prepared a deed of
partition distributing .uluJs estate in
accordance with the terms of her will. &s the act
of the lawyer correct5 3hy5 67+8
SUGGESTED ANSWER4
'o. 'o will, shall pass either real or personal
estate unless it is proved and allowed in the
proper court.
(Sec. 1, Rule 7(, Rules of Court)
Probate of Bill ('((+)
!ergio /unGalan, $ilipino, <F years old,
married, and residing at Ayala Alabang
-illage, @untinlupa City, of
sound and disposing mind, e9ecuted a
last will and
testament in "nglish, a language spo2en
and written
by
hi
m
pro;cientl
y. :e
dispos
ed of
hi
s
esta
te
consisting of a parcel of land in
@a2ati City and cash deposit at the
City Ban2 in the sum of / *FF
@illion. :e be?ueathed / <F @illion
each to his * sons and / D<F
@illion to his wife. :e devised a
piece of land worth /DFF @illion
to !usan, his favorite daughter-in-
law. :e named his best friend,
Cancio -idal, as e9ecutor of the
will without bond.
+s Cancio =i#al, after learning of
SergioMs #eath, o3lige# to @le
with the $ro$er court a $etition
of $ro3ate of the latterMs last will
an# testa,ent; (2H!
SUGGESTED ANSWER4
Cancio -idal is obliged to ;le a
petition for probate and for
accepting or refusing the trust
within the statutory period of 7F
days under !ec. *, 0ule E<,
0ules of Court.
Su$$osing the original co$. of the
last will an# tes6 ta,ent was lost,
can Cancio co,$el Susan to $ro6
#uce a co$. in her $ossession
to 3e su3,itte# to the $ro3ate
court. (2H!
SUGGESTED ANSWER4
Nes, Cancio can compel !usan to
produce the copy in her
possession. A person having custody
of the will is bound to deliver the same
to the court of competent jurisdiction or
to the e9ecutor, as provided in !ec. 7,
0ule E<, 0ules of Court.
Can the $ro3ate court a$$oint
the wi#ow as e7ecutor of the will;
(2H!
SUGGESTED ANSWER4
Nes, the probate court can appoint
the widow as e9ecutor of the will if the
e9ecutor does not ?ualify, as when he is
incompetent, refuses the trust, or fails
to give bond (Sec. ., Rule 7*, Rules of
Court).
Can the wi#ow an# her
chil#ren settle e7traAu#iciall.
a,ong the,selves the estate of the
#ecease#; (2H!
SUGGESTED ANSWER4
'o, the widow and her children cannot settle
the estate e9trajudicially because of the
e9istence of the 3ill. 'o will shall pass
either real or personal estate unless it is
proved and allowed in the proper court
(Sec. 1, Rule 7(, Rules of Court).
Can the wi#ow an# her chil#ren
initiate a se$arate $etition for
$artition of the estate $en#ing the
$ro3ate of the last will an# testa,ent
3. the court; (2H!
SUGGESTED ANSWER4
'o, the widow and her children cannot
;le a separate petition for partition
pending the probate of the will.
/artition is a mode of settlement of the
estate (Sec. 1, Rule 7(, Rules of Court).
Probate of Bill" :andatory =ature ('((')
Dondee
3hat should the court do if, in the
course of intestate proceedings, a will
is found and it is submitted for
probate5 "9plain. 67+8
SUGGESTED ANSWER4
&f 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.
pon the probate of the will, the
intestate proceedings will be terminated.
(Rule *2, sec. 1).
Settlement of 9state ('((1)
%he rules on special proceedings
ordinarily re?uire that the estate of the
deceased should be judicially administered
thru an administrator or e9ecutor.
3hat are the two e9ceptions to said
re?uirements5 6<+8
SUGGESTED ANSWER4
%he two e9ceptions to the re?uirement
areO
6a83here the decedent left no will and no
debts and the heirs are all of age, or the
minors are represented by their judicial
or legal representatives duly
authoriGed for the purpose, the parties
may without securing letters of
administration, divide the estate among
themselves by means of public instrument
;led in the ofice of the register of deeds, or
should they disagree, they may do so in an
ordinary action of partition. &f there is only
one heir, he may adjudicate to himself the
entire estate by means of an afidavit ;led in
the ofice of the register of deeds. %he
parties or the sole heir shall ;le
simultaneously abound with the register of
deeds, in an amount e?uivalent to the value
of the personal property as certi;ed to
under oath by the parties and
conditioned upon the payment of any just
claim that may be ;led later. %he fact of
the e9trajudicial settlement or
administration shall be published in a
newspaper of general circulation in the
province once a wee2 for three
consecutive wee2s. (Sec. 1 of Rule 74, Rules of
Court)
6b8 3henever the gross value of the
estate of a deceased person, whether he
died testate or intestate, does not e9ceed
ten thousand pesos, and that fact is made to
appear to the 0%C having jurisdiction or the
estate by the petition of an interested
person and upon hearing, which shall be
held not less than one 6D8 month nor more than
three 6*8 months from the date of the last
publication of a notice which shall be published
once a wee2 for three consecutive wee2s in a
newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct,
the court may proceed summarily, without
the appointment of an e9ecutor
or administrator, to settle the estate.
(Sec. 2 of Rule 74, Rules of Court)
Settlement of 9state" Administrator (199!)
A, claiming to be an illegitimate child of the
deceased D, instituted an &ntestate proceeding
to settle the estate of the latter. :e also
prayed that he be
appointed administrator of said
estate. !, the
surviving spouse, opposed the petition
and AJs
application to be appointed the
administrator on the
ground that he was not the child
of her deceased husband D. %he
court, however, appointed A as the
administrator of said estate.
!ubse?uently, !, claiming to be
the sole heir of D, e9ecuted an
Afidavit of Adjudication,
adjudicating unto herself the
entire estate of her deceased
husband D. ! then sold the
entire estate to R.
3as the appointment of A as
administrator proper5 )7+,
3as the action of ! in adjudicating
the entire estate of her late
husband to herself legal5 )*+,
SUGGESTED ANSWER4
D. Nes, unless it is shown that the
court gravely- abused its discretion
in appointing the illegitimate child as
administrator, instead of the spouse.
3hile the spouse enjoys preference,
it appears that the spouse has
neglected to apply for letters
of administration within thirty 6*F8 days
from the death of the decedent. (Sec.
6, ule 7/, ules of Court;
"as$a., -r. vs. Court of )$$eals. 2(/
SC) &6(.!
ALTERNATI3E ANSWER4
!, the surviving spouse, should have
been appointed administratri9 of
the estate, in as much as she enjoys
;rst preference in such appointment
under the rules.
(Sec. .(%) of Rule 7*, Rules of Court.)
SUGGESTED ANSWER4
7. 'o. An afidavit of self-adjudication
is allowed only if the afiant is the sole
heir of the. deceased. (Sec. 1, Rule 74,
Rules of Court). &n this case, A also claims
to be an heir. @oreover, it is not
legal because there is already a
pending juridical proceeding for
the settlement of the estate.
5enue" Secial Proceedings (1997)
1ive the proper venue for the
following special proceedingsO
a8 A petition to declare as escheated a
parcel of land owned by a resident
of the /hilippines who died intestate
and without heirs or persons entitled
to the property.
b8 A petition for the appointment
of an administrator over the land
and building left by an American
citiGen residing in California, who
had been declared an
incompetent by an American
court.
c8 A petition for the adoption of a minor
residing in
/ampanga.
SUGGESTED ANSWER4
6a8 %he venue of the escheat
proceedings of a parcel of land in this
case is the place where the deceased
last resided. (Sec. 1. Rule 91, Rules of
Court).
6b8 %he venue for the appointment
of an administrator over land and building
of an American citiGen residing in
California, declared &ncompetent
Dondee
by an American Court, is the 0%C of the
place where his property or part thereof
is situated. (Sec. 1. Rule 92).
6c8 %he venue of a petition for the
adoption of a minor residing in
/ampanga is the 0%C of the place in
which the petitioner resides. (Sec. 1. Rule
99)
SUMMARY PROCEDURE
Pro,ibited Pleadings ('((?)
Charged with the ofense of slight
physical injuries under an information
duly ;led with the @e%C in @anila
which in the meantime had duly
issued an order declaring that the case
shall be governed by the 0evised 0ule
on !ummary /rocedure, the accused
;led with said court a motion to
?uash on the sole ground that the
oficer who ;led the information had no
authority to do so. %he @e%C denied the
motion on the ground that it is a
prohibited motion under the said 0ule.
%he accused thereupon ;led with the
0%C in @anila a petition for certiorari
in sum assailing and see2ing the
nulli;cation of the @e%CJs denial of his
motion to ?uash. %he 0%C in due
time issued an order denying due
course to the certiorari petition on
the ground that it is not allowed by
the said 0ule. %he accused forthwith
;led with said 0%C a motion for
reconsideration of its said order. %he
0%C in time denied said motion for
reconsideration on the ground that the
same is also a prohibited motion
under the said 0ule.
3ere the 0%CJs orders denying due
course to the petition as well as
denying the motion for
reconsideration correct5 0eason. 6<+8
SUGGESTED ANSWER4
%he 0%CJs orders denying due course to
the petition for certiorari as well as
denying the motion for
reconsideration are both not correct.
%he petition for certiorari is a
prohibited pleading under !ection DH6g8
of the 0evised 0ule on !ummary
/rocedure and the motion for
reconsideration, while it is not
prohibited motion (8ucas v. 2a3ros, )M
%o. M5-6996&226, -anuar.
(&, 2000, citing -oven v. Court of )$$eals, 2&2
SC) 700, 707670/ (&992!, should be denied
because the petition for certiorari is a
prohibited pleading.
MISCELLANEOUS
Administrative Proceedings ('((7)
0egional Director A1 of the Department of
/ublic 3or2s and :ighways was charged with
violation of !ection *6e8 of 0epublic Act 'o.
*FDH in the #fice of the #mbudsman. An
administrative charge for gross misconduct
arising from the transaction subject matter of
said criminal case was ;led against him in the
same ofice. %he #mbudsman assigned a
team
composed of investigators from the #fice
of the
!pecial /rosecutor and from the #fice
of the
Deputy #mbudsman for the @ilitary to
conduct a
joint investigation of the criminal
case and the administrative case.
%he team of investigators
recommended to the #mbudsman
that A1 be preventively suspended
for a period not e9ceeding si9 months
on its ;nding that the evidence of
guilt is strong. %he #mbudsman
issued the said order as
recommended by the investigators.
A1 moved to reconsider the order
on the following groundsO 6a8 the
#fice of the !pecial /rosecutor had
e9clusive authority to conduct
a preliminary investigation of the
criminal caseI 6b8 the order for his
preventive suspension was
premature because he had yet to
;le his answer to the administrative
complaint and submit
countervailing evidenceI and 6c8 he
was a career e9ecutive service
oficer and under /residential
Decree 'o. AFE 6Civil !ervice
.aw8, his preventive suspension
shall be for a ma9imum period
of three months. 0esolve with
reasons the motion of
respondent A1. 6<+8
SUGGESTED ANSWER4
%he motion should be denied
for the following reasonsO
D. %he #fice of the !pecial
/rosecutor does not have
e9clusive authority to conduct a
preliminary investigation of the
criminal case but it
participated in the investigation
together with the Deputy
#mbudsman for the @ilitary who
can handle cases of civilians and is
not limited to the military.
7. %he order of preventive suspension
need not wait for the answer to
the administrative complaint and the
submission of countervailing evidence.
6,%rci% . :o@ic%, ,.R. 'o. 139)3,
Se8tember 1), 1999)
&n B%s>ueF c%se, ,.R. 'o. 11)*)1, -8ril
., 199(, the court ruled that
preventive suspension pursuant to !ec.
7> of 0.A. 'o. KEEF 6#mbudsman Act of
DHAH8, shall continue until termination of
the case but shall not e9ceed si9 6K8
months, e9cept in relation to 0.A. 'o,
*FDH and /.D. 'o. AFE. As a career
e9ecutive oficer, his preventive
suspension under the Civil !ervice .aw
may only be for a ma9imum period of
three months. %he period of the
suspension under the Anti-1raft .aw
shall be the same pursuant to the
e?ual protection clause. ("arcia v.
MoAica, ".. %o.
&(90(, Se$te,3er &0, &999; 8a.no v.
San#igan3a.an, ".. %o. 866*/'/, Ma.
2&, &9/*!
Congress" 0a2 9;roriating Proerty ('((+)
@ay Congress enact a law providing that
a <, FFF s?uare meter lot, a part of the
!% compound in !ampaloc @anila,
be e9propriated for the construction
of a par2 in honor of former City @ayor
Arsenic .acson5 As compensation to !%,
the City
Dondee
Remedial Law Bar Examination Q & A (1997-2006) of
@anila shall deliver its <-hectare lot
in !ta. 0osa, .aguna originally
intended as a residential subdivision for
the @anila City :all employees. "9plain.
6<+8
SUGGESTED ANSWER4
Nes, Congress may enact a law
e9propriating property provided that it
is for public use and with just
compensation. &n this case, the
construction of a par2 is for public use
(See Sena v. Manila ailroa# Co., "..
%o. &*9&*, Se$te,3er 7, &92&; e.es v.
%<), " %o. &'7*&&, March 2', 200(!.
%he planned compensation, however, is
not legally tenable as the determination of
just compensation is a judicial function.
'o statute,
decree or e9ecutive order can
mandate that the
determination of just compensation by
the e9ecutive
or legislative departments can prevail
over the courtJs
;ndings (47$ort Processing Gone
)uthorit. v. 0ula.,
".. %o. 86*960(, )$ril 29,&9/7; Sees. * to /
ule 67,&997 ules of Civil Proce#ure!. &n
addition, compensation must be paid in
money (4ste3an v. 9norio, ).M. %o.
006'6&6665C, -une 29, 200&!.
.
1A .(19" :andatory Susension ('((1)
1overnor /edro @ario of %arlac was charged with indirect bribery before the
!andiganbayan for accepting a car in e9change of the award of a series of
contracts for medical supplies. %he !andiganbayan, after going over the
information, found the same to be valid and ordered the suspension of @ario. %he latter
contested the suspension claiming that under the law 6!ec. D* of 0.A. *FDH8 his
suspension is not automatic upon the ;ling of the information and his suspension under
!ec. D*, 0.A. *FDH is in con=ict with !ec. < of the DecentraliGation Act of DHKE 60.A.
<DA<8. %he !andilganbayan overruled @arioLs contention stating that @arioLs
suspension under the circumstances is mandatory.
&s the courtLs ruling correct5 3hy5
SUGGESTED ANSWER4
Nes. @arioLs suspension is mandatory, although not automatic, (Sec. 13 of R.-. 'o. 3)19 in
rel%tion to Sec. ( of t0e &ecentr%liF%tion -ct of 19.7 (R.-. 'o. (1*(). &t is mandatory after
the determination of the validity of the information in a pre- suspension hearing.
FSegovia v. San#igan3a.an, 2// SC) (2/ (&9//!D. %he purpose of suspension is to
prevent the accused public oficer from frustrating or hampering his prosecution
by intimidating or in=uencing witnesses or tampering with evidence or from
committing further acts of malfeasance while in ofice.
Dondee

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