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ANSWERS TO BAR EXAMINATION QUESTIONS


IN

REMEDIAL LAW
ARRANGED BY TOPIC (1997 2006)
Edited and Arranged by: version 1987-2003 Silliman University College of Law Batch 2005 UPDATED BY:

Dondee
The RE-Take 2007 From he A!"#ER" T$ BAR E%A&'!AT'$! (UE"T'$!" )* he UP +A# ,$&P+E% - Phi.i//ine +a0 "1hoo.s Asso1ia ion 2002 34.* 225 2007
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F$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 E aminations 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 E ams 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

Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page

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TABLE OF CONTENTS
GENERAL PRINCIPLES........................................................................................................................................ 8 Bar by Prior Judgment vs. Conclusiveness of Judgment (1997) .............................................................................. 8 Cause of action vs. Action (1997) ............................................................................................................................ 8 Civil Actions vs. S ecial 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 - )m artiality ('((.) .................................................................................................................. 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" Conce t ('((+) ................................................................................................................................ 9 1ig,ts of t,e Accused" 5alidity" 6)5 %est ('((7) ...................................................................................................... 9 JURISDICTION....................................................................................................................................................... 10 Jurisdiction (1997)................................................................................................................................................. 10 Jurisdiction vs. 5enue ('((+)................................................................................................................................. 10 Jurisdiction" C%A 8ivision vs. C%A 9n Banc ('((+) ............................................................................................... 10 Jurisdiction" )nca able of Pecuniary 9stimation ('((().......................................................................................... 10 Jurisdiction" )nca able of Pecuniary 9stimation ('((().......................................................................................... 11 Jurisdiction" )nca able 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" 0u on" 9;tent of Aut,ority" ('((1)............................................................................ 13 CIVIL PROCEDURE .............................................................................................................................................. 13 Actions" Cause of Action vs. Action (1999) ............................................................................................................ 13 Actions" Cause of Action" Joinder S litting (199!)............................................................................................. 13 Actions" Cause of Action" Joinder of Action (1999)................................................................................................ 13 Actions" Cause of Action" Joinder of Action ('((7)................................................................................................ 13 Actions" Cause of Action" S litting (1999) ............................................................................................................. 14 Actions" Cause of Action" S litting ('((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 A eals" Period of A eal" &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 Contem t" 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 Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page 4 of 66 8efault" 1emedies" Party 8eclared in 8efault ('((+) .............................................................................................. 19 8efault" 1emedies" Substantial Com liance ('((()................................................................................................ 20 8emurrer to 9vidence ('((1) ................................................................................................................................. 20 8emurrer to 9vidence" Civil Case vs. Criminal Case ('((.).................................................................................... 20 8iscovery" :odes of 8iscovery ('((()................................................................................................................... 20 8iscovery" :odes" Sub oena 8uces %ecum (1997) ............................................................................................... 21 8iscovery" Production and )ns ection of 8ocuments ('((').................................................................................. 21 8ismissal" :otion to 8ismiss" 1es Judicata ('((()................................................................................................ 21 9vidence" Admissibility" P,otoco ies ('((() ......................................................................................................... 22 &orum S,o ing" 8efinition ('((+) ........................................................................................................................ 22 &orum S,o ing" 9ffects" 0ac> of Certification ('((+) ........................................................................................... 22 3en. Princi les" ?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 A eal ('((')......................................................................................................... 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 Cor us" Custody of :inors ('((7) ........................................................................................ 25 Jurisdiction" 0ac> of Jurisdiction" Pro er 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 Com laint" By 0eave of Court ('((.) ............................................................................ 27 Pleadings" Amendment of Com laint" By 0eave of Court" Prescri tive Period ('((()............................................. 27 Pleadings" Amendment of Com laint" :atter of 1ig,t ('((7) ................................................................................. 28 Pleadings" Amendment of Com laint" %o Conform 2A 9vidence ('((=) .................................................................. 28 Pleadings" Ans2er" 8efense" S ecific 8enial ('((=) .............................................................................................. 28 Pleadings" Certification Against &orum S,o ing ('((() ....................................................................................... 29 Pleadings" Counterclaim against t,e Counsel of t,e Plaintiff ('((=) ...................................................................... 29 Pleadings" :otions" Bill of Particulars ('((.)......................................................................................................... 29 Pleadings" 1e ly" 9ffect of Bon$&iling of 1e ly ('((() ........................................................................................... 29 Pre/udicial ?uestion" 9/ectment vs. S ecific Performance ('((() .......................................................................... 30 Pre$%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" 1e levin (1999).................................................................................................................. 32 Provisional 1emedies" Su ort Pendente 0ite (1999)............................................................................................. 32 Provisional 1emedies" Su ort Pendente 0ite ('((1)............................................................................................. 32 Provisional 1emedies" %1* ('((1) ........................................................................................................................ 32 Provisional 1emedies" %1* ('((+) ........................................................................................................................ 33
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5 of 66 Provisional 1emedies" %1* vs. Status ?uo *rder ('((+) ....................................................................................... 33 Provisional 1emedies" %1*" CA Justice 8e t.

('((+)............................................................................................. 33 Provisional 1emedies" %1*" 8uration ('((+) ......................................................................................................... 33 1eglementary Period" Su lemental Pleadings ('((() ........................................................................................... 33 1emedies" A eal to SC" A eals to CA ('((') ..................................................................................................... 33 1emedies" A eal" 1%C to CA (1999)..................................................................................................................... 33 1emedies" A eal" 1ule =7 vs. 1ule +7 (1999) ....................................................................................................... 34 1emedies" 5oid 8ecision" Pro er 1emedy ('((=) .................................................................................................. 34 S ecial Civil Action" 9/ectment (1997) ................................................................................................................... 35 S ecial Civil Action" 9/ectment (199!) ................................................................................................................... 35 S ecial Civil Action" &oreclosure ('((.) ................................................................................................................ 35 S ecial Civil Action" Petition for Certiorari ('((') .................................................................................................. 35 S ecial Civil Action" ?uo @arranto ('((1) ............................................................................................................. 36 S ecial Civil Actions" :andamus ('((+) ................................................................................................................ 36 Summons.............................................................................................................................................................. 36 Summons (1999) ................................................................................................................................................... 37 Summons" Substituted Service ('((=) ................................................................................................................... 37 Summons" 5alidity of Service" 9ffects ('((+)......................................................................................................... 37 5enue" )m ro er 5enue" Com ulsory 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 Jeo ardy ('((=)............................................................................ 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" A eal (199!) ................................................................................................................................................ 41 Bail" A lication" 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 Com laint 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 Jeo ardy ('((')......................................................................................................................................... 44 8ouble Jeo ardy" D grading" *riginal C,arges ('((7) .......................................................................................... 44 9;tradition ('((=) .................................................................................................................................................. 44 )nformation ('((1) ................................................................................................................................................. 45 )nformation" Amendment ('((1) ............................................................................................................................ 45 )nformation" Amendment" 8ouble Jeo ardy" Bail ('((') ........................................................................................ 45 )nformation" Amendment" Su ervening 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" Com le; Crimes ('((.) ..................................................................................................................... 47 Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page 6 of 66 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" Sus ension 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 EVIDENCE ................................................................................................................................................................ 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;ce tion" 8ead :an Statute ('((1)........................................................................................................ 54 6earsay" 9;ce tion" 8ying 8eclaration (199!) ....................................................................................................... 55 6earsay" 9;ce tion" 1es 3estae" * inion of *rdinary @itness ('((7) ................................................................... 55 6earsay" 9;ce tions (1999) ................................................................................................................................... 55 6earsay" 9;ce tions" 8ying 8eclaration (1999) ..................................................................................................... 55 6earsay" )na licable ('((.).................................................................................................................................. 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 Pre onderance

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" )nde endent 1elevant Statement (1999) .............................................................................................. 60 @itness" Com etency of t,e @itness vs. Credibility of t,e @itness ('((=)............................................................. 60 @itness" 9;amination of a C,ild @itness" via 0ive$0in> %5 ('((7) ......................................................................... 60 @itness" 9;amination of @itnesses (1997) ............................................................................................................ 60
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7 of 66 @itness" 9;amination of @itnesses ('((') ............................................................................................................ 60 @itness" DtiliCed as State @itness" Procedure ('((+) ............................................................................................ 60 SPECIAL PROCEEDINGS .................................................................................................................................. 61 Cancellation or Correction" 9ntries Civil 1egistry ('((7)........................................................................................ 61 9sc,eat Proceedings ('((') .................................................................................................................................. 61 9;tra$/udicial Settlement of 9state ('((7) .............................................................................................................. 61 6abeas Cor us (199.) ........................................................................................................................................... 61 6abeas Cor us (199!) ........................................................................................................................................... 61 6abeas Cor us ('((.) ........................................................................................................................................... 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" S ecial Proceedings (1997)........................................................................................................................ 64 SUMMARY PROCEDURE................................................................................................................................... 65 Pro,ibited Pleadings ('((=)................................................................................................................................... 65 MISCELLANEOUS................................................................................................................................................. 65 Administrative Proceedings ('((7) ........................................................................................................................ 65 Congress" 0a2 9; ro riating Pro erty ('((+) ....................................................................................................... 65 1A .(19" :andatory Sus ension ('((1) ................................................................................................................ 66
Remedial Law Bar Examination Q & A (1997-2006)

GENERAL PRINCIPLES
Bar by Prior Judgment vs. Conclusiveness of Judgment (1997)

Distinguish Bar by prior udgment from conclusiveness of udgment


SUGGESTED ANSWER:

Bar by prior! udgment is the doctrine of res udicata" which bars a second action when there is identity of parties" sub ect matter and cause of action# (Sec. 49[b] of
former Rule 39; Sec, 47 [b] of new Rule 39).

Conclusiveness of udgment precludes the relitigation of a particular issue in another action between the same parties on a different 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 ANSWER:

$ C$US% &' $C()&* is an act or omission of one party in violation of the legal right or rights of the other (Maao ugar Central vs. Barrios! 79 P"il. #$#% ec. & of ne' (ule &)! causing damage to another#

$n $C()&* 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.

)ecial Proceedings (199*) Distinguish civil actions from special proceedings# ,-./
SUGGESTED ANSWER:

$ C)0)L $C()&* is one by which a party sues another for the enforcement or protection of a right" or the prevention or redress of a wrong# (See. 3[a], Rule 1, 1997 Rules of i!il "roce#ure), while a S1%C)$L 12&C%%D)*3 is a remedy by which a party see4s to establish a status" a right or a particular fact# (Sec.
3[ ]. Rule 1,1997 Rules of i!il "roce#ure.)

Conciliation Proceedings% +atarungang Pambarangay vs. Pre,-rial Conference (1999)

5hat is the difference" if any" between the conciliation proceedings under the 6atarungang 1ambarangay Law and the negotiations for an amicable settlement during the pre!trial conference under the 2ules of Court7 82.9
SUGGESTED ANSWER:

(he difference between the conciliation proceedings under the 6atarungang 1ambarangay Law and the negotiations for an amicable settlement during the pre!trial conference under the 2ules of Court is that in the former" lawyers are prohibited from appearing for the parties# 1arties must appear in person only e:cept minors or incompetents who may be assisted by their ne:t of 4in who are not lawyers. ($ormerl% Sec. 9, by: sirdondee@gmail.com Page 8 of 66 ".&. 'o. 1()*; Sec. 41(, +ocal ,o!ernment o#e of 1991, R.-. 71.).) *o such prohibition e:ists in the pre!trial negotiations under the 2ules of Court# .amily Courts Act (&$$1) a9 ;ow should the records of child and family cases in the 'amily Courts or 2(C designated by the Supreme Court to handle 'amily Court cases be treated and dealt with7 8-.9 b9 Under what conditions may the identity of parties in child and family cases be divulged 82.9
SUGGESTED ANSWER:

a9 (he records of child and family cases in the 'amily Code to handle 'amily Court cases shall be dealt with utmost confidentiality# (Sec. 12, $amil% ourts -ct of 1997) b9 (he identity of parties in child and family cases shall not be divulged unless necessary and with authority of the udge# (/#.) /nterlocutory 0rder (&$$#) 5hat is an interlocutory order7 82.9
SUGGESTED ANSWER:

$n interlocutory order refers to an order issued between the commencement and the end of the suit which is not a final decision of the whole controversy and leaves something more to be done on its merits
Judgment vs. 0)inion of t"e Court (&$$#)

(1allardo et al. v. Peo)le! 1.(. 2o. 13&$4$! A)ril &1! &$$5% /nvestments /nc. v. Court of A))eals! 1.(. 2o. #$$4#! January &7! 19*7 cited in 6enso P"ils! v. 7AC! 1.(. 2o. 75$$$! .eb. &7! 19*7).

5hat is the difference between a udgment and an opinion of the court7 82#5.9
SUGGESTED ANSWER:

(he udgment or fallo is the final disposition of the Court which is reflected in the dispositive portion of the decision# $ decision is directly prepared by a udge and signed by him" containing clearly and distinctly a statement of the facts proved and the law upon which the udgment is based (8toya v. Abra"am
ingson! Adm. Matter 2o. (-J,91,75*! e)tember &#! 1993).

$n opinion of the court is the informal e:pression of the views of the court and cannot prevail against its final order# (he opinion of the court is contained in the body of the decision that serves as a guide or enlightenment to determine the ratio #eci#en#i of the decision# (he opinion forms no part of the udgment even if combined in one instrument" but may be referred to for the purpose of construing the udgment (Contreras v. .eli9! 1.(. 2o. :,377! June
4$! 1937).

Judicial Autonomy ; /m)artiality (&$$4)


Remedial Law Bar Examination Q & A (1997-2006)

)n rendering a decision" should a court ta4e into consideration the possible effect of its verdict upon the political stability and economic welfare of the nation7 <.
SUGGESTED ANSWER:

*o" because a court is re=uired to ta4e into consideration only the legal issues and the evidence admitted in the case# (he political stability and economic welfare of the nation are

e:traneous to the case# (hey can have persuasive influence but they are not the main factors that should be considered in deciding a case# $ decision should be based on the law" rules of procedure" ustice and e=uity# ;owever" in e:ceptional cases the court may consider the political stability and economic welfare of the nation when these are capable of being ta4en into udicial notice of and are relevant to the case# +atarungang Pambarangay% 0b<ective (1999) 5hat is the ob ect of the 6atarungang 1ambarangay Law7 82.9
SUGGESTED ANSWER:

(he ob ect of the 6atarungang 1ambarangay Law is to effect an amicable settlement of disputes among family and barangay members at the barangay level without udicial recourse and conse=uently help relieve the courts of doc4et congestion# ("reamble of ".&.
'o. 1()*, t0e former an# t0e first 1atarun2an2 "ambaran2a% +aw.)

:iberal Construction% (ules of Court (199*)

;ow shall the 2ules of Court be construed7 ,2./


SUGGESTED ANSWER:

(he 2ules of Court should be liberally construed in order to promote their ob ective of securing a ust" speedy and ine:pensive disposition of every action and proceeding# (Sec. .,
Rule 1 1997 Rules of
ADDITIONAL ANSWER:

i!il "roce#ure.)

;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. (Alvero vs. Judge de la (osa! 7# P"il. 3&*) (emedial :a' in P"il. ystem of 1ov=t (&$$#) ;ow are remedial laws implemented in our system of government7 82.9
SUGGESTED ANSWER:

2emedial laws are implemented in our system of government through the pillars of the udicial system" including the prosecutory service" our courts of ustice and =uasi udicial agencies# (emedial :a' vs. ubstantive :a' (&$$#) Distinguish between substantive law and remedial law# 82.9
SUGGESTED ANSWER:

SUBS($*()0% L$5 is that part of the law which creates" defines and regulates rights concerning life" liberty" or property" or the powers of agencies or instrumentalities for the administration of public by: sirdondee@gmail.com Page 9 of 66 affairs# (his is distinguished from 2%>%D)$L L$5 which prescribes the method of enforcing rights or obtaining redress for their invasion (Bustos v.
:ucero! 1.(. 2o. :,&$#*! 0ctober &$! 193*).

(emedial :a'% Conce)t (&$$#)

5hat is the concept of remedial law7 82.9


SUGGESTED ANSWER:

(he concept of 2emedial Law 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 udgment only after trial" and contemplates an opportunity to be heard before udgment is rendered (Albert v.
>niversity Publis"ing!

1.(. 2o. :,1911*! January 4$! 19#5).

2emedial Law is that branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasion (Bustos v. :ucero! 1.(. 2o.
(ig"ts of t"e Accused% ?alidity% @/? -est (&$$5)

:,&$#*! 0ctober &$! 193*% .irst :e)anto Ceramics! /nc. v. CA! 1.(. 2o. 11$571! Marc" 1$! 1993).

Under 2epublic $ct *o# ?-5-" one may be charged with and found guilty of =ualified rape if he 4new on or before the commission of the crime that he is afflicted with ;uman )mmuno!Deficiency 0irus 8;)09@$c=uired )mmune Deficiency Syndrome 8$)DS9 or any other se:ually transmissible disease and the virus or disease is transmitted to the victim# Under Section AB8a9 of 2epublic $ct *o# ?50< the court may compel the accused to submit himself to a blood test where blood samples would be e:tracted from his veins to determine whether he has ;)0# 8?.9

a) Are t"e rig"ts of t"e accused to be )resumed innocent of t"e crime c"arged! to )rivacy! and against self,incrimination violated by suc" com)ulsory testingA 89)lain.
SUGGESTED ANSWER:

*o# (he court may compel the accused to submit himself to a blood test to determine whether he has ;)0 under Sec# AB8a9 of 2#$# *o" ?05<# ;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 e:amination# (Sec. 1, Rule 2*, 1997 Rules of i!il
"roce#ure) (+oo3 for citation of latest case, in 2))4)

b) /f t"e result of suc" test s"o's t"at "e is @/? )ositive! and t"e )rosecution offers suc" result in evidence to )rove t"e Bualifying circumstance under t"e /nformation for Bualified ra)e! s"ould t"e court re<ect suc" result on t"e ground t"at it is t"e fruit of a )oisonous treeA 89)lain.
SUGGESTED ANSWER:

Since the rights of the accused are not violated because the compulsory testing is authoriCed by the
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 offered in evidence to prove the =ualifying circumstance under the information for =ualified rape under 2#$# *o# ?-5-# (he fruit" of the poisonous tree doctrine refers to that rule of evidence that e:cludes any evidence which may have been derived or ac=uired from a tainted or polluted source# Such evidence is inadmissible for having emanated from spurious origins# (he doctrine" however" does not apply to the results obtained pursuant to Sec# A" 2ule 2?" ADDB 2ules of Civil 1rocedure" as it does not contemplate a search within the moaning of the law# (Peo)le v.
Montilla! 1.(. 2o. 1&4*7&! January 4$!199*)

JURISDICTION
Jurisdiction (1997)

5hat courts have urisdiction over the following cases filed in >etro >anila7 a9 $n action for specific performance or" in the alternative" for damages in the amount of 1A?0"000#00 b9 $n action for a writ of in unction# c9 $n action for replevin of a motorcycle valued at 1A50"000#00# d9 $n action for interpleader to determine who between the defendants is entitled to receive the amount of 1AD0"000#00 from the plaintiff# e9 $ petition for the probate of a will involving an estate valued at 1200"000#00#
SUGGESTED ANSWER:

8a9 $n action for specific performance or" in the alternative" for damages in the amount of A?0"000#00 falls within the urisdiction of >etropolitan (rial Courts in >etro >anila# $lthough an action for specific performance is not capable of pecuniary estimation" since the alternative demand for damages is capable of pecuniary estimation" it is within the urisdiction of the >etropolitan (rial Courts in >etro >anila# ( ec. 44 of BP 1&9 as amended by (A 2o. 7#91C
CruD us. -an! *7 P"il. #&7E.

8b9 $n action for in unction is not capable of pecuniary estimation and hence falls within the urisdiction of the 2(Cs# 8c9 $n action for replevin of a motorcycle valued at A50"000#00 falls within the urisdiction of the >etropolitan (rial Courts in >etro >anila ( ec. 44 of
BP 1&9. as amended by (A 2o. 7#91).

8d9 $n action for interpleader to determine who between the defendants is entitled to receive the amount of 1AD0"000#00 falls within the urisdiction of the >etropolitan (rial Courts in >etro >anila#
(MaFati 6ev Cor). v. -an<uatco &7 C(A 3$1)

by: sirdondee@gmail.com Page 10 of 66


ADDITIONAL ANSWER:

8e9 $ petition for the probate of a will involving an estate valued at 200#000#00 falls within the +urisdiction of the >etropolitan (rial Courts in >etro >anila ( ec. 19G3E of BP 1&9! as amended). 8b9 $n application for a writ of preliminary in unction may be granted by a >unicipal Court in an action of forcible entry and unlawful detainer# ( ec.44 of BP 1&9%
6ay vs. (-C of Hamboanga! 191 C(A#1$.

Jurisdiction vs. ?enue (&$$#)

Distinguish urisdiction from venue7 82.9


SUGGESTED ANSWER:

+U2)SD)C()&* treats of the power of the Court to decide a case on the merits" while 0%*U% refers to the place where the suit may be filed# )n criminal actions" however" venue is urisdictional# +urisdiction is a matter of substantive lawE venue" of procedural law# +urisdiction may be not be

conferred by consent through waiver upon a court" but venue may be waived" e:cept in criminal cases (2ocum et al. v. -an!
1.(. 2o. 135$&&! 199&). e)tember &4! &$$5%

antos /// v. 2ort"'est Airlines! 1.(. 2o. 1$154*! June &4!

Jurisdiction% C-A 6ivision vs. C-A 8n Banc (&$$#)

>ar4 filed with the Bureau of )nternal 2evenue a complaint for refund of ta:es paid" but it was not acted upon# So" he filed a similar complaint with the Court of (a: $ppeals raffled to one of its Divisions# >ar4Fs complaint was dismissed# (hus" he filed with the Court of $ppeals a petition for certiorari under 2ule G5# Does the Court of $ppeals have urisdiction over >ar4Fs petition7 82#5.9
SUGGESTED ANSWER:

*o# (he procedure is governed by Sec# AA of 2# $# D2?2# Decisions of a division of the Court of (a: $ppeals must be appealed to the Court of (a: $ppeals en banc# 'urther" the C($ now has the same ran4 as the Court of $ppeals and is no longer considered a =uasi! udicial agency# )t is li4ewise provided in the said law that the decisions of the C($ en bane are cogniCable by the Supreme Court under 2ule <5 of the ADDB 2ules of Civil 1rocedure# Jurisdiction% /nca)able of Pecuniary 8stimation (&$$$) $ brings an action in the >(C of >anila against B for the annulment of an e:tra udicial foreclosure sale of real property with an assessed value of 150"000#00 located in Laguna# (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 2(C of Laguna# Decide with reason# 8-.9
SUGGESTED ANSWER:

(he motion should be granted# (he >(C of >anila has no urisdiction because the action for the annulment of the e:tra udicial foreclosure is not capable of pecuniary estimation and is therefore
Remedial Law Bar Examination Q & A (1997-2006) under the urisdiction of the 2(Cs# ((ussell v. ?estil! 4$3 C(A 74*!G1999E).

;owever" the action for annulment is a personal action and the venue depends on the residence of either $ or B# ;ence" it should be brought in the 2(C of the place where either of the parties resides# Jurisdiction% /nca)able of Pecuniary 8stimation (&$$$) $ files an action in the >unicipal (rial Court against B" the natural son of $Hs father" for the partition of a parcel of land located in (aytay" 2iCal with an assessed value of 120"000#00# B moves to dismiss the action on the ground that the case should have been brought in the 2(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# 2esolve the motion# 82.9
SUGGESTED ANSWER:

(he motion should be granted# (he action for partition depends on a determination of the hereditary rights of $ and B" which is not capable of pecuniary estimation# ;ence" even though the assessed value of the land is 120"000#00" the >unicipal (rial Court has no urisdiction# ((ussell v.
?estil! su)ra)

Jurisdiction% /nca)able of Pecuniary 8stimation (&$$4)

$ filed with the >(C of >anila an action for specific performance against B" a resident of IueCon City" to compel the latter to e:ecute a deed of conveyance covering a parcel of land situated in IueCon City having an assessed value of pAD"000#00# B received the summons and a copy of the Complaint on 02 +anuary 200-# &n A0 +anuary 200-" B filed a >otion to Dismiss the Complaint on the ground of lac4 of urisdiction contending that the sub ect matter of the suit was incapable of pecuniary estimation# (he court denied the motion# )n due time" B filed with the 2(C a 1etition for Certiorari praying that the said &rder be set aside because the >(C had no urisdiction over the case# G. &n A- 'ebruary 200-" $ filed with the >(C a motion to declare B in default# (he motion was opposed by B on the ground that his 1etition for Certiorari was still pending# 8a9 5as the denial of the >otion to Dismiss the Complaint correct7 8b9 2esolve the >otion to Declare the Defendant in Default#
SUGGESTED ANSWER:

8a9 (he denial of the >otion to Dismiss the Complaint was not correct# $lthough the assessed value of the parcel of land involved was 1AD"000#00" within the urisdiction of the >(C of

>anila" the action filed by $ for Specific 1erformance against B to compel the latter to e:ecute a Deed of Conveyance of said parcel of land was not capable of pecuniary by: sirdondee@gmail.com Page 11 of 66 estimation and" therefore" the action was within the urisdiction of 2(C# ((ussel v. ?estil! 4$3
C(A 74* G1999E% Co)ioso v. Co)ioso! 1.(. 2o. 139&34! 0ctober &*!&$$&% Cabuti"an v. :andcenter Construction! 4*4 C(A 454 G&$$&E).
ALTERNATI E ANSWER:

)f the action affects title to or possession of real property then it is a real action and urisdiction is determined by the assessed value of the property# )t is within the urisdiction therefore of the >etropolitan (rial Court#
SUGGESTED ANSWER:

8b9 (he Court could declare B in default because B did not obtain a writ of preliminary in unction or a temporary restraining order from the 2(C prohibiting the udge from proceeding in the case during the pendency of the petition for certiorari#
( ec. 7 of (ule #5% 6iaD v. 6iaD! 441
ALTERNATI E ANSWER:

C(A 4$& G&$$&E.

(he Court should not declare B in default inasmuch as the urisdiction of >(C was put in issue in the 1etition 'or Certiorari filed with the 2(C# (he >(C should defer further proceedings pending the result of such petition# (8ternal 1ardens Memorial ParF
Cor)oration v. Court of A))eals! 1#3 C(A 3&1 G19**E).

Jurisdiction% M-C (&$$&)

1 sued $ and B in one complaint in the 2(C!>anila" the cause of action against $ being on an overdue promissory note for 1-00"000#00 and that against B being on an alleged balance of 1-00"000#00 on the purchase price of goods sold on credit# Does the 2(C!>anila have urisdiction over the case7 %:plain# 8-.9
SUGGESTED ANSWER:

*o" the 2(C!>anila has no urisdiction over the case# $ and B could not be oined 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# (Rule 3, sec. .). ;ence" separate complaints will have to be files and they would fall under the urisdiction of the >etropolitan (rial Court# G.lores v. Mallare,P"ili))s!
133 C(A 477 (19*#)E.

Jurisdiction% 0ffice of t"e

olicitor 1eneral (&$$#) )n ADDG" Congress passed 2epublic $ct *o# ?A?D" otherwise 4nown as the 0oterFs 2egistration $ct of ADDG" providing for computeriCation of elections# 1ursuant thereto" the C&>%L%C approved the 0oterFs 2egistration and )dentification System 802)S9 1ro ect# )t issued invitations to pre!=ualify and bid for the pro ect# $fter the public bidding" 'oto4ina was declared the winning bidder with a bid of 1G billion and was issued a *otice of $ward# But C&>%L%C Chairman 3ener 3o ob ected to the award on the ground that under the $ppropriations $ct" the budget for the C&>%L%CFs moderniCation is only 1A
Remedial Law Bar Examination Q & A (1997-2006)

billion# ;e announced to the public that the 02)S pro ect has been set aside# (wo Commissioners sided with Chairman 3o" but the ma ority voted to uphold the contract# >eanwhile" 'oto4ina filed with the 2(C a petition for mandamus compel the C&>%L%C to implement the contract# (he &ffice of the Solicitor 3eneral 8&S39" representing Chairman 3o" opposed the petition on the ground that mandamus does not lie to enforce contractual obligations# During the proceedings" the ma ority Commissioners filed a manifestation that Chairman 3o was not authoriCed by the C&>%L%C %n Banc to oppose the petition# May t"e 0 1 re)resent C"airman 1o before t"e (-C not'it"standing t"at "is )osition is contrary to t"at of t"e ma<orityA (5I)
SUGGESTED ANSWER:

Jes" the &S3 may represent the C&>%L%C Chairman before the 2(C notwithstanding that his position is contrary to that of a ma ority of the Commission members in the C&>%L%C because the &S3 is an independent officeE itFs hands are not shac4led to the cause of its client agency# (he primordial concern of the &S3 is to see to it that the best interest of the government is upheld
(C0M8:8C

v. Juyano,Padilla!

e)tember 1*! &$$&).

Jurisdiction% 0mbudsman Case 6ecisions (&$$#)

Does the Court of $ppeals have urisdiction to review the Decisions in criminal and administrative cases of the &mbudsman7 82#5.9
SUGGESTED ANSWER:

(he Supreme Court has e:clusive appellate urisdiction over decisions of the &mbudsman in criminal cases (Sec. 14, R.-. .77))# )n administrative and disciplinary cases" appeals from the &mbudsman must be ta4en to the Court of $ppeals under 2ule <-

(:anting v. 0mbudsman! 1.(. 2o. 1313&#! May #! &$$5% .abian v. 6esierto! 1.(. 2o. 1&973&! e)tember 1#! 199*% ec. 13! (A. #77$).

Jurisdiction% Probate (&$$1)

+osefa filed in the >unicipal Circuit (rial Court of $licia and >abini" a petition for the probate of the will of her husband" >artin" who died in the >unicipality of $licia" the residence of the spouses# (he probable value of the estate which consisted mainly of a house and lot was placed at 1D5"000#00 and in the petition for the allowance of the will" attorneyHs fees in the amount of 1A0"000#00" litigation e:penses in the amount of 15"000#00 and costs were included# 1edro" the ne:t of 4in of >artin" filed an opposition to the probate of the will on the ground that the total amount included in the relief of the petition is more than 1A00"000#00" the ma:imum urisdictional amount for municipal circuit trial courts# (he court overruled the opposition and proceeded to hear the case# by: sirdondee@gmail.com Page 12 of 66 5as the municipal circuit trial court correct in its ruling7 5hy7 85.9
SUGGESTED ANSWER:

Jes" the >unicipal Circuit (rial Court was correct in proceeding to hear the case# )t has e:clusive urisdiction in all matters of probate" both testate and intestate" where the value of the estate does not e:ceed 1A00"000#00 8now 1200"000#009# (he value in this case of 1D5"000#00 is within its urisdiction# )n determining the urisdictional amount" e:cluded are attorneyHs fees" litigation e:penses and costsE these are considered only for determining the filing fees#
(4.".4l2. 129, Sec. 33, as amen#e#)

Jurisdiction% (-C (&$$&)

1 sued $ in the 2(C!>anila to recover the following sumsK 8A9 1200"000#00 on an overdue promissory note" 829 1?0"000#00 on the purchase price of a computer" 8-9 1A50"000#00 for damages to his car and 8<9 1A00"000#00 for attorneyHs fees and litigation e:penses# Can $ move to dismiss the case on the ground that the court has no urisdiction over the sub ect matter7 %:plain# 82.9
SUGGESTED ANSWER:

*o" because the 2(C!>anila has urisdiction over the sub ect matter# 1 may sue $ 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 urisdiction# [Rule 2, sec. ((#)]. (he aggregate amount claimed is 1<50"000#00" e:clusive of the amount of 1A00"000#00 for attorneyHs fees and e:penses of litigation# ;ence" the 2(C!>anila has urisdiction# Jurisdiction% ubdivision @omeo'ner (&$$#) 5hat court has urisdiction over an action for specific performance filed by a subdivision homeowner against a subdivision developer7 Choose the correct answer# %:plain# (he ;ousing and Land Use 2egulatory Board (he Securities and %:change Commission (he 2egional (rial Court (he Commercial Court or the 2egional (rial Court designated by the Supreme Court to hear and decide Lcommercial cases#L
SUGGESTED ANSWER:

$n action for specific performance by a subdivision homeowner against a subdivision developer is within the urisdiction of the ;ousing and Land Use 2egulatory Board# Sec# A of 1#D# A-<< provides that the ;LU2B has urisdiction over cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lots and condominium units against the owner" developer" dealer" bro4er or salesman (Manila BanFers :ife
/nsurance Cor). v. 8ddy 2g +oF Kei! 1.(. 2o. 149791! 6ecember 1&! &$$4% +aFilala v. .araon! 1.(. 2o. 134&44! 0ctober 1*! &$$3% ec. 1! P.6. 1433). Remedial Law Bar Examination Q & A (1997-2006)

+atarungang Pambarangay% :u)on% 89tent of Aut"ority% (&$$1)

$n amicable settlement was signed before a Lupon (agapamayapa on +anuary -" 200A# &n +uly G" 200A" the prevailing party as4ed the Lupon to e:ecute the amicable settlement because of the non!compliance by the other party of the terms of the agreement# (he Lupon concerned refused to e:ecute the settlement@agreement# a9 )s the Lupon correct in refusing to e:ecute the settlement@agreement7 8-.9 b9 5hat should be the course of action of the prevailing party in such a case7 82.9
SUGGESTED ANSWER:

a9 Jes" the Lupon is correct in refusing to e:ecute the settlement@agreement because the e:ecution sought is already beyond the period of si: months from the date of the settlement within which the Lupon is authoriCed to e:ecute# (Sec. 417, +ocal ,o!ernment o#e of
1991)

b9 $fter the si:!month period" the prevailing party should move to e:ecute the settlement@agreement in the appropriate city or municipal trial court# 8)d#9

CIVIL PROCEDURE
Actions% Cause of Action vs. Action (1999)

Distinguish action from cause of action# 82.9


SUGGESTED ANSWER:

$n $C()&* 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 ) $ C$US% &' $C()&* is the act or omission by which a party violates a right of another# (Sec. 2, Rule 2 of t0e 1997 Rules) An action must be based on a cause of action. (Sec. 1, Rule 2 of t0e
1997 Rules)

Actions% Cause of Action% Joinder ;

)litting (199*) 3ive the effects of the followingK Splitting a single cause of actionK and 8-.M *on! oinder of a necessary party# ,2./
SUGGESTED ANSWER:

A# (he effect of splitting a single cause of action is found in the rule as followsK )f two or more suits are instituted on the basis of the same cause of action" the filing of one or a udgment on the merits in any one is available as a ground for the dismissal of the others# (Sec. 4 of Rule 2) 2# (he effect of the non! oinder of a necessary party may be stated as followsK (he court may order the inclusion of an omitted necessary party if urisdiction over his person may be obtained# (he failure to comply with the order for his inclusion without ustifiable cause to a waiver of the claim against such party# (he court may proceed with the action but the udgment rendered shall be without
by: sirdondee@gmail.com Page 13 of 66

pre udice to the rights of each necessary party# (Sec. 9 of Rule 3) Actions% Cause of Action% Joinder of Action (1999) a9 5hat is the rule on oinder of causes of action7 82.9 b9 $ secured two loans from B7 one for 1500"000#00 and the other for 1A"000"000#00" payable on different dates# Both have fallen due# )s B obliged to file only one complaint against $ for the recovery of both loans7 %:plain# 82.9
SUGGESTED ANSWER:

a# (he rule on +&)*D%2 &' C$US%S &' $C()&* is that a party may in one pleading assert" in the alternative or otherwise oin as many causes of action as he may have against an opposing party" provided that the rule on oinder of parties is complied withE A#/ the oinder shall not include special civil actions or actions governed by special rules" but may include causes of action pertaining to different venues or urisdictions provided one cause of action falls within the urisdiction of a 2(C and venue lies thereinE and 2#/ the aggregate amount claimed shall be the test of urisdiction where the claims in all the causes of action are principally for the recovery of money# (Sec. (, Rule 2 of t0e 1997 Rules) b# *o# +oinder is only permissive since the loans are separate loans which may be governed by the different 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 (&$$5) 1erry is a resident of >anila" while 2ic4y and >arvin are residents of Batangas City# (hey are the coowners of a parcel of residential land located in 1asay City with an assessed value of 1A00"000#00# 1erry borrowed 1A00"000#00 from 2ic4y which he promised to pay on or before December A" 200<# ;owever" 1erry failed to pay his loan# 1erry also re ected 2ic4y and >arvinFs proposal to partition the property# 2ic4y filed a complaint against 1erry and >arvin in the 2(C of 1asay City for the partition of the property# ;e also incorporated in his complaint his action against 1erry for the collection of the latterFs 1A00"000#00 loan" plus interests and attorneyFs fees#

State with reasons whether it was proper for 2ic4y to oin his causes of action in his complaint for partition against 1erry and >arvin in the 2(C of 1asay City# 85.9
SUGGESTED ANSWER:

Remedial Law Bar Examination Q & A (1997-2006)

)t was not proper for 2ic4y to oin his causes of action against 1erry in his complaint for partition against 1erry and >arvin# (he causes of action may be between the same parties" 2ic4y and 1erry" with respect to the loan but not with respect to the partition which includes >arvin# (he oinder is between a partition and a sum of money" but 1$2()()&* is a special civil action under 2ule GD" which cannot be oined with other causes of action# (See. ([b], Rule 2,) $lso" the causes of action pertain to different venues and urisdictions# (he case for a sum of money pertains to the municipal court and cannot be filed in 1asay City because the plaintiff is from >anila while 2ic4y and >arvin are from Batangas
it%. (Sec. (, Rule 2,)

Actions% Cause of Action%

)litting (1999) a9 5hat is the rule against splitting a cause of action and its effect on the respective rights of the parties for failure to comply with the same7 82.9 b9 $ purchased a lot from B for 1l"500"000#00# ;e gave a down payment of 1500"000" 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# 5hen the note fell due and $ failed to pay" B commenced suit to recover from $ the balance of 1A"000"000#00# $fter securing a favorable udgment on his claim" B brought another action against $ before the same court to foreclose the mortgage# $ now files a motion to dismiss the second action on the ground of bar by prior udgment# 2ule on the motion# 82.9
SUGGESTED ANSWER:

a# (he rule against splitting a cause of action and its effect are that if two or more suits are instituted on the basis of the same cause of action" the filing of one or a udgment 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# 5hen 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% )litting (&$$5) 2aphael" a warehouseman" filed a complaint against 0 Corporation" N Corporation and J 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# $fter due proceedings" udgment was rendered by the court declaring that N Corporation was entitled to the goods# (he decision became final and e:ecutory# by: sirdondee@gmail.com Page 14 of 66 2aphael filed a complaint against N Corporation for the payment of 1A00"000#00 for storage charges and other advances for the goods# N Corporation filed a motion to dismiss the complaint on the ground of res udicata# N Corporation alleged that 2aphael 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# 2aphael 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# 2esolve the motion with reasons# 8<.9
SUGGESTED ANSWER:

(he motion to dismiss should be granted# 2aphael 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 filing of the complaint# (hey are part of 2aphaelFs cause of action which he may not be split# ;ence" when the warehouseman as4s the court to ascertain who among the defendants are entitled to the goods" he also has the right to as4 who should pay for the storage fees and other related e:penses# (he filing of the interpleader is available as a ground for dismissal of the second case# (Sec. 4, Rule 2,) )t is a4in to a compulsory counterclaim which" if not set up" shall be barred#
( ec. &! (ule 9! % ArreDa v. 6iaD! 1.(.

2o. 144114! August 4$! &$$1)

Actions% Cause of Actions% Motion to 6ismiss% bar by )rior <udgment (&$$&)

2olando filed a petition for declaration of the nullity of his marriage to Carmela because of the alleged psychological incapacity of the latter# $fter trial" the court rendered udgment dismissing the petition on the ground that 2olando failed to prove the psychological incapacity of his wife# (he udgment having become final" 2olando filed 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 udgment in the first7 5hy7 82.9

SUGGESTED ANSWER:

*o" the second action is not barred by the udgment in the first because they are different causes of action# (he first is for annulment of marriage on the ground of psychological incapacity under $rticle -G 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 5 3((3), $amil% o#e]. (hey are different causes of action because the evidence re=uired to prove them are not the same# GPagsisi"an v. Court of A))eals! 95 C(A 53$
(19*$) and ot"er casesE.

Actions% Counterclaim (&$$&)


Remedial Law Bar Examination Q & A (1997-2006)

(he plaintiff sued the defendant in the 2(C for damages allegedly caused by the latterHs encroachment on the plaintiffHs lot# )n his answer" the defendant denied the plaintiffHs claim and alleged that it was the plaintiff who in fact had encroached on his 8defendantHs9 land# $ccordingly" the defendant counterclaimed against the plaintiff for damages resulting from the alleged encroachment on his lot# (he plaintiff filed an e: parte motion for e:tension of time to answer the defendantHs counterclaim" but the court denied the motion on the ground that it should have been set for hearing# &n the defendantHs motion" therefore" the court declared the plaintiff in default on the counterclaim# 5as the plaintiff validly declared in default7 5hy7 85.9
SUGGESTED ANSWER:

*o" the plaintiff was not validly declared in default# $ motion for e:tension of time to file an answer may be filed e: parte and need not be set for hearing#
GAmante vs. unga! #3 C(A 19& (1975)E.
ALTERNATI E ANSWER:

(he general rule is that a counterclaim must be answered within ten 8A09 days from service# (Rule 11, sec. 4). ;owever" a counterclaim that raises issues which are deemed automatically oined by the allegations of the Complaint need not be answered#
G1o<o v. 1oyala! 45 C(A 557 (197$)E.

)n this case" the defendantHs counterclaim is a compulsory counterclaim which arises out or is connected with the transaction and occurrence constituting the sub ect matter of the plaintiffHs 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) a9 5hat is a counterclaim7 82.9 b9 Distinguish a counterclaim from a crossclaim# 82.9 c9 $" who is engaged in tile installation business" was sued by %% )ndustries for breach of contract for installing different marble tiles in its offices as provided in their contract# 5ithout filing any motion to dismiss" $ filed its $nswer with Counterclaim theoriCing that %% )ndustries has no legal capacity to sue because it is not a duly registered corporation# By way of counterclaim" $ as4ed 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 filing 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 $Fs counterclaim# %% )ndustries opposed on the ground that the counterclaim could no longer be prosecuted in view of the dismissal of the main by: sirdondee@gmail.com Page 15 of 66 case# )s the stand of %% )ndustries sustainable7 %:plain# ,2./
SUGGESTED ANSWER:

$ C&U*(%2CL$)> is any claim which a defending party may have against an opposing party# (Sec. ., Rule .) b) $ counterclaim is distinguished from a C2&SSCL$)> 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 sub ect matter either of the original action or of a counterclaim therein# $ 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 filed" any of the grounds for dismissal provided in the 2ules may be pleaded as an affirmative defense in the answer which may include a counterclaim# (his is what $ did by filing an $nswer alleging the lac4 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 pre udice 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 1<00"000#00 from $# (he promissory note was e:ecuted by B and C in a +oint and several capacity# B" who received the money from $" gave C 1200"000#00# C" in turn"
a)

loaned 1A00"000#00 out of the 1200"000#00 he received to D# a9 )n an action filed by $ against B and C with the 2(C of IueCon City" can B file a cross!claim against C for the amount of 1200"000#007 b9 Can C file a third party complaint against D for the amount of 1 A00"000#007
SUGGESTED ANSWER:

8a9 Jes# B can file a cross!claim against C for the amount of 200"000#00 given to C# $ cross! claim is a claim filed by one party against a co!party arising out of the transaction or occurrence that is the sub ect 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 .) 8b9 *o" C cannot file a third!party complaint against D because the loan of 1A00"000 has no connection with the opponentFs claim# C could have loaned the money out of other funds in his possession#
ALTERNATI E ANSWER:

Jes" C can file a third!party complaint against D because the loan of A00"000#00 was ta4en out of the 1200"000 received from B and hence the loan see4s
Remedial Law Bar Examination Q & A (1997-2006)

contribution in respect to his opponentFs claim# (Sec. 11 of Rule .) Actions% 6erivative uit vs. Class uit (&$$5) Distinguish a derivative suit from a class suit#
SUGGESTED ANSWER:

$ D%2)0$()0% SU)( is a suit in e=uity that is filed 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 (:int v. :im,Lu! 1./: 2o. 14*434! .ebruary 19! &$$1)" while a CL$SS SU)( is filed regarding a controversy of common or general interest in behalf of many persons so numerous that it is impracticable to oin all as parties" a number which the court finds sufficiently representative who may sue or defend for the benefit of all# (Sec. 12, Rule 3) )t is worth noting that a derivative suit is a representative suit" ust li4e a class suit# Actions% .iling% Civil Actions ; Criminal Action (&$$5) 5hile cruising on a highway" a ta:icab driven by >ans hit an electric post# $s a result thereof" its passenger" +ovy" suffered serious in uries# >ans was subse=uently charged before the >unicipal (rial Court with rec4less imprudence resulting in serious physical in uries# (hereafter" +ovy filed a civil action against Lourdes" the owner of the ta:icab" for breach of contract" and >ans for =uasi!delict# Lourdes and >ans filed 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 rec4less imprudence resulting in serious physical in uries# 2esolve the motion with reasons# 8<.9
SUGGESTED ANSWER:

(he motion to dismiss should be denied# (he action for breach of contract against the ta:icab owner cannot be barred by the criminal action against the ta:icab driver" although the ta:icab 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 $rticle -- of the Civil Code and Sec# -" 2ule AAA of the 2ules of Court" which can be filed separately and can proceed independently of the criminal action and regardless of the result of the latter# ( amson v. 6a'ay! 1.(. 2os. 1#$$53,55! July &1!
&$$3)

Actions% /ntervention% (eBuisites (&$$$)

5hat are the re=uisites for an intervention by a nonparty in an action pending in court7 85.9
SUGGESTED ANSWER:

(he re=uisites for intervention areK Legal interest in the matter in a controversyE or Legal interest in the success of either of the partiesE or
by: sirdondee@gmail.com Page 16 of 66

Legal interest against bothE or So situated as to be adversely affected by a distribution or other disposition or property in the custody of the court or of an officer thereof# )ntervention will not unduly delay or pre udice the ad udication of the rights or original partiesE

)ntervenorHs rights may not be fully protected in a separate proceedings#


(Acenas // v. Court of A))eals! &37 Procedure.) C(A 774 G1995E% ec. 1! (ule 19! 1997 (ules of Civil

Actions% (eal Actions ; Personal Actions (&$$#)

5hat do you mean by a9 real actionsE and b9 personal action7 82.9


SUGGESTED ANSWER:

a# 2%$L $C()&*S are actions affecting title to or possession of real property or an interest therein
(.ortune Motors! /nc. v. CA! 1. (. 2o. 7#341! 0ctober 1#! 19*9% (ule 3! ec. 1). b# $ll other actions are 1%2S&*$L $C()&*S (Rule 4, Section /) which include those arising from

privity of contract# Actions% urvives 6eat" of t"e 6efendant (&$$$) 1+ engaged the services of $tty# S( to represent him in a civil case filed by &1 against him which was doc4eted as Civil Case *o# A2-# $ retainership agreement was e:ecuted between 1+ and $tty# S( whereby 1+ promised to pay $tty# S( a retainer sum of 12<"000#00 a year and to transfer the ownership of a parcel of land to $tty# S( after presentation of 1+Hs evidence# 1+ did not comply with his underta4ing# $tty# S( filed a case against 1+ which was doc4eted as Civil Case *o# <5G# During the trial of Civil Case *o# <5G" 1+ died# )s the death of 1+ a valid ground to dismiss the money claim of $tty# S( in Civil Case *o# <5G7 %:plain# 82.9 5ill your answer be the same with respect to the real property being claimed by $tty# S( in Civil Case *o# <5G7 %:plain 82.9
SUGGESTED ANSWER:

*o# Under Sec# 20" 2ule -" ADDB 2ules of Civil 1rocedure" when the action is for recovery of money arising from contract" e:press or implied" and the defendant dies before entry of final udgment 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 final udgment# $ favorable udgment obtained by the plaintiff shall be enforced in the manner especially provided in the 2ules for prosecuting claims against the estate of a deceased person# Jes" my answer is the same# $n action to recover real property in any event survives the death of the defendant# 8Sec# A" 2ule ?B" 2ules of Court9# ;owever" a favorable udgment may be enforced
Remedial Law Bar Examination Q & A (1997-2006)

in accordance with Sec# B8b9 2ule -D 8ADDB 2ules of Civil 1rocedure9 against the e:ecutor or administrator or successor in interest of the deceased# A))eals% Period of A))eal% .res" Period (ule (&$$4) Defendant N received an adverse Decision of the 2(C in an ordinary civil case on 02 +anuary 200-# ;e filed a *otice of $ppeal on A0 +anuary 200-# &n the other hand" plaintiff $ received the same Decision on 0G +anuary 200- and" on AD +anuary 200-" filed a >otion for 2econsideration of the Decision# &n A- +anuary 200-" defendant N filed a >otion withdrawing his notice of appeal in order to file a >otion for *ew (rial which he attached# &n 20 +anuary 200-" the court denied $Hs >otion for 2econsideration and NHs >otion to 5ithdraw *otice of $ppeal# 1laintiff $ received the &rder denying his >otion for 2econsideration on 0- 'ebruary 200- and filed his *otice of $ppeal on 05 'ebruary 200-# (he court denied due course to $Hs *otice of $ppeal on the ground that he period to appeal had already lapsed# G. 8a9 )s the courtHs denial of NHs >otion to 5ithdraw *otice of $ppeal proper7 8b9 )s the courtHs denial of due course to $Hs appeal correct7
SUGGESTED ANSWER:

8a9 *o" the courtHs denial of NHs >otion to 5ithdraw *otice of $ppeal is not proper" because the period of appeal of N has not yet e:pired# 'rom +anuary 2" 200- when N received a copy of the adverse decision up to +anuary A-" 200- when he filed his withdrawal of appeal and >otion for *ew (rial" only ten 8A09 days had elapsed and he had fifteen 8A59 days to do so# 8b9 *o" the courtHs denial of due course to $Hs appeal is not correct because the appeal was ta4en on time# 'rom +anuary G" 200- when $ received a copy of the decision up to +anuary AD"

200- when he filed a >otion for 2econsideration" only twelve 8A29 days had elapsed# Conse=uently" he had three 8-9 days from receipt on 'ebruary -" 200- of the &rder denying his >otion for 2econsideration within which to appeal# ;e filed is notice of appeal on 'ebruary 5" 200-" or only two 829 days later#
ALTERNATI E ANSWER:

Since $Hs >otion for 2econsideration was filed on +anuary AD" 200- and it was denied on +anuary 20" 200-" it was clearly not set for hearing with at least three daysH notice# (herefore" the motion was pro forma and did not interrupt the period of appeal which e:pired on +anuary 2A" 200- or fifteen 8A59 days after notice of the decision on +anuary G" 200-# 20-8C (o standardiCe the appeal periods provided in the 2ules and to afford litigants fair opportunity to appeal their cases" the Court deems it practical to by: sirdondee@gmail.com Page 17 of 66 allow a .(8 @ P8(/06 of 15 days within which to file the notice of appeal in the 2(C" counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration# G2ey)es et. al. vs.
CA! 1.(. 2o. 1315&3! e)tember 13! &$$5E

Certiorari% Mode of Certiorari (&$$#)

%:plain each mode of certiorariK 1. As a mode of a))eal from t"e (egional -rial Court or t"e Court of A))eals to t"e u)reme Court. (&.5I)
SUGGESTED ANSWER:

Certiorari as a mode of appeal is governed by 2ule <5 of the 2ules of Court which allows appeal from udgment" final order of resolution of the Court of $ppeals" Sandiganbayan" the 2(C or other courts whenever authoriCed by law to the Supreme Court by verified petition for review raising only =uestions of law distinctly set forth# &. As a s)ecial civil action from t"e (egional -rial Court or t"e Court of A))eals to t"e u)reme Court. (&.5I)
SUGGESTED ANSWER:

Certiorari as a Special Civil $ction is governed by 2ule G5 of the 2ules of Court when an aggrieved party may file a verified petition against a decision" final order or resolution of a tribunal" body or board that has acted without or in e:cess of its urisdiction or grave abuse of discretion amounting to lac4 or e:cess of urisdiction" when there is no appeal or any other plain" speedy and ade=uate remedy in the ordinary course of law# 4. As a mode of revie' of t"e decisions of t"e 2ational :abor (elations Commission and t"e Constitutional Commissions. (&.5I)
SUGGESTED ANSWER:

Certiorari as a mode of review of the decision of the *L2C is elevated to the Court of $ppeals under 2ule G5" as held in the case of t. MartinMs .uneral @ome v. 2:(C! 1.(. 2o. 14$*##! e)tember 1#! 199*# Certiorari as a mode of review from the Commission on $udit 8C&$9 and C&>%L%C is elevated to the Supreme Court within -0 days from notice of the udgment" decision or final order or resolution sought to be reviewed" as provided for under the 2ule G< of the ADDB 2ules of Civil 1rocedure# )n the case of the Civil Service Commission 8CSC9" review of its udgments is through petitions for review under Sec# 5 of 2ule <- of the ADDB 2ules of Civil 1rocedure# Certiorari% (ule 35 vs. (ule #5 (199*) Differentiate certiorari as an original action from certiorari as a mode of appeal# M-./
SUGGESTED ANSWER:

Certiorari as an original action and certiorari as a mode of appeal may be distinguished as followsK A# (he first is a special civil action under 2ule G5 of the 2ules of Court" while the second is an appeal
Remedial Law Bar Examination Q & A (1997-2006)

to the Supreme Court from the Court of $ppeals" Sandiganbayan and the 2(C under 2ule <5# (he first can be filed only on the grounds of lac4 or e:cess of urisdiction or grave abuse of discretion tantamount to lac4 or e:cess of urisdiction" while the second is based on the errors of law of the lower court# (he first should be filed within si:ty 8G09 days from notice of the udgment" order or resolution sought to be assailed (Sec. 4. Rule .()" while the second should be filed within fifteen 8A59 days from notice of the udgment or final order or resolution appealed from" or of the denial of the petitionerFs motion for new trial or reconsideration filed in due time after notice of the udgment# (Sec. 2, Rule 4() (he first cannot generally be availed of as a substitute for a lost appeal under 2ules <0" <A"

<2" <- and <5# Under the first" 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% (ule 35 vs. (ule #5 (&$$5)

>ay the aggrieved party file a petition for certiorari in the Supreme Court under 2ule G5 of the ADDB 2ules of Civil 1rocedure" instead of filing a petition for review on certiorari under 2ule <5 thereof for the nullification of a decision of the Court of $ppeals in the e:ercise either of its original or appellate urisdiction7 %:plain#
SUGGESTED ANSWER:

(o *ULL)'J $ D%C)S)&* of the Court of $ppeals the aggrieved party should file a 1%()()&* '&2 2%0)%5 &* C%2()&2$2) in the Supreme Court under 2ule <5 of the 2ules of Court instead of filing a petition for certiorari under 2ule G5 e:cept under very e:ceptional circumstances# $ long line of decisions of the Supreme 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 $ppeals imposes the death penalty" or a lesser penalty for offenses committed on such occasion" appeal by petition for review or ordinary appeal# )n cases when the Court of $ppeals imposes reclusion perpetua" life imprisonment or a lesser penalty" appeal is by notice of appeal filed with the Court of $ppeals# Contem)t% 6eat" of a Party% 8ffect (199*) $ filed a complaint for the recovery of ownership of land against B who was represented by her counsel N# )n the course of the trial" B died# ;owever" N failed to notify the court of BFs death# (he court proceeded to hear the case and rendered udgment against B# $fter the +udgment became final" a writ of e:ecution by: sirdondee@gmail.com Page 18 of 66 was issued against C" who being BFs sole heir" ac=uired the property# Did the failure of counsel N to inform the court of BFs death constitute direct contempt7 82.9
SUGGESTED ANSWER:

*o# )t is not direct contempt under Sec# A of 2ule BA" but it is indirect contempt within the purview of Sec - of 2ule BA# (he lawyer can also be the sub ect of disciplinary action# (Sec. 1.,
Rule 3)

6efault (&$$$)

Defendant was declared in default by the 2(C 82(C9# 1laintiff was allowed to present evidence in support of his complaint# 1hotocopies of official receipts and original copies of affidavits were presented in court" identified by plaintiff on the witness stand and mar4ed as e:hibits# Said documents were offered by plaintiff and admitted in evidence by the court on the basis of which the 2(C rendered udgment in favor of the plaintiff" pursuant to the relief prayed for# Upon receipt of the udgment" defendant appeals to the Court of $ppeals claiming that the udgment is not valid because the 2(C based its udgment on mere photocopies and affidavits of persons not presented in court# )s the claim of defendant valid7 %:plain# 8-.9
SUGGESTED ANSWER:

(he claim of defendant is not valid because under the ADDB 2ules" reception of evidence is not re=uired# $fter a defendant is declared in default" the court shall proceed to render udgment 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 cler4 of court# (Sec. 3, Rule 9)
ALTERNATI E ANSWER:

(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 plaintiff must pass the basic re=uirements of admissibility# 6efault (&$$1) >ario was declared in default but before udgment was rendered" he decided to file a motion to set aside the order of default# a9 5hat should >ario state in his motion in order to ustify the setting aside of the order of default7 8-.9 b9 )n what form should such motion be7 82.9
SUGGESTED ANSWER:

a9 )n order to ustify the setting aside of the order of default" >ario should state in his motion that his failure to answer was due to fraud" accident" mista4e or e:cusable negligence and that he has a meritorious defense# [Sec. 3(b) of Rule 9,]. b9 (he motion should be under oath# 8)d#9 6efault% 0rder of 6efault% 8ffects (1999)
Remedial Law Bar Examination Q & A (1997-2006)

5hen may a party be declared in default7 82.9 5hat is the effect of an &rder of Default7 82.9 'or failure to seasonably file his $nswer despite due notice" $ was declared in default in a case instituted against him by B# (he following day" $Fs mistress who is wor4ing as a cler4 in the sala of the +udge before whom his case is pending" informed him of the declaration of default# &n the same day" $ 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# $fter his return a wee4 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 filed before $ 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 udgment# 2esolve the >otion# 82.9
SUGGESTED ANSWER:

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) 2. (he effect of an &rder of Default is that the court may proceed to render udgment

granting the claimant such relief as his pleading may warrant unless the court in its discretion re=uires the claimant to submit evidence 8)d#9 (he party in default cannot ta4e part in the trial but shall be entitled to notice of subse=uent proceedings# (Sec.
3[-])

-# $ssuming that the motion to set aside complies with the other re=uirements of the rule" it should be granted# $lthough such a motion may be made after notice but before udgment (Sec. 3[4] of Rule 9)" with more reason may it be filed after discovery even before receipt of the order of default# 6efault% (emedies% Party 6eclared in 6efault (199*) 5hat are the available remedies of a party declared )n defaultK Before the rendition of udgmentE ,A./ $fter udgment but before its finalityE and ,2.A $fter finality of udgment7 ,2./
SUGGESTED ANSWER:

(he available remedies of a party declared in default are as followsK A# B%'&2% (;% 2%*D)()&* &' +UD3>%*( 8a9 he may file a motion under oath to set aside the order of default on the grounds of fraud" accident" mista4e or e:cusable negligence and that he has a meritorious 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 file the special civil action of certiorari for grave abuse of discretion tantamount to lac4 or e:cess of the lower courtFs urisdiction# (Sec. 1, Rule .() or 8b9 he may file 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 e:piration of the time to answer#
(Matute vs. Court of A))eals! &# C(A 7#*% Acosta,0falia vs. undiam! *5 C(A 31&.)

2# $'(%2 +UD3>%*( BU( B%'&2% )(S ')*$L)(J" he may file a motion for new trial on the grounds of fraud" accident" mista4e" e:cusable negligence" or a motion for reconsideration on the ground of e:cessive damages" insufficient evidence or the decision or final order being contrary to law (Sec. 2, Rule 37)K and thereafter# )f the motion is denied" appeal to available under 2ules <0 or <A" whichever to applicable# -# $'(%2 ')*$L)(J &' (;% +UD3>%*(" there are three ways to assail the udgment" which areK a9 a petition for relief under 2ule -? on the grounds of fraud" accident" mista4e or e:cusable negligenceE b9 annulment of udgment under 2ule <B for e:trinsic fraud or lac4 of urisdictionE or c) certiorari if the udgment to void on its face or by the udicial record# (Balangcad vs. Justices of t"e Court of A))eals! 1.(. 2o. *4***.
.ebruary 1&! 199&! &$# *C(A 171).

6efault% (emedies% Party 6eclared in 6efault (&$$#)

+o ie filed with the 2egional (rial Court of Laguna a complaint for damages against +oe# During the pretrial" +o ie 8sic9 and her 8sic9 counsel failed to appear despite notice to both of them# Upon oral motion of +o ie" +oe was declared as in default and +o ie was allowed to present her evidence e: parte# (hereafter" the court rendered its Decision in favor of +o ie# +oe hired +ose as his counsel# 5hat are the remedies available to him7 %:plain# 85.9
SUGGESTED ANSWER:

(he remedies available to a party against whom a default decision is rendered are as followsK A# B%'&2% the udgment in default becomes final and e:ecutoryK >otion for 2econsideration under 2ule -BE >otion for *ew (rial under 2ule -BE and $ppeal under 2ule <A# 2# $'(%2 the udgment in default becomes final and e:ecutoryK 1etition for 2elief under 2ule -?E $nnulment of +udgment under 2ule <BE and
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

c# Certiorari under 2ule G5#


6efault% (emedies%

( ee -alsan 8nter)rises! /nc. v. Bali'ag -ransit! /nc.! 1.(. 2o. 1&#&5*! July *! 1999)

ubstantial Com)liance (&$$$) 'or failure of 6#+# to file an answer within the reglementary period" the Court" upon motion of L>" declared 6+ in default# )n due time" 6+ filed an unverified motion to lift the order of default without an affidavit of merit attached to it# 6+ however attached to the motion his answer under oath" stating in said answer his reasons for his failure to file an answer on time" as well as his defenses# 5ill the motion to lift the order of default prosper7 %:plain# 8-.9
SUGGESTED ANSWER:

Jes" there is substantial compliance with the rule# $lthough the motion is unverified" the answer attached to the motion is verified# (he answer contains what the motion to lift the order of default and the affidavit of merit should contain" which are the reasons of movantHs failure to answer as well as his defenses# ( ec. 4 GbE of (ule 9! 1997 (ules of Civil
Procedure% Cf. CitibanF! 2.A. v. Court of A))eals! 4$3 C(A #79! G1999E% Consul v. Consul! 17 C(A ##7! #71 G19##E% -olentino v. Carlos! ## P"il! 135$! 134,133 G194*E! 2asser v. Court of A))eals! 191 C(A 7*4 G199&E).

6emurrer to 8vidence (&$$1)

Carlos filed a complaint against 1edro in the 2(C of &Camis City for the recovery of the ownership of a car# 1edro filed his answer within the reglementary period# $fter the pre!trial and actual trial" and after Carlos has completed the presentation of his evidence" 1edro 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 2(C granted the motion for dismissal# Carlos appealed the order of dismissal and the appellate court reversed the order of the trial court# (hereafter" 1edro filed a motion with the 2(C as4ing the latter to allow him to present his evidence# Carlos ob ected to the presentation of evidence by 1edro# Should the 2(C grant 1edroHs motion to present his evidence7 5hy7 85.9
SUGGESTED ANSWER:

*o# 1edroHs motion should be denied# ;e can no longer present evidence# (he 2ules 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
ALTERNATI E ANSWER:

i!il "roce#ure)

*o" because when the appellate court reversed the order of the trial court it should have rendered udgment in favor of Carlos# (6uebral !. ourt of -77eals, 2(2 S R- 3(3, 199.) by: sirdondee@gmail.com Page 20 of 66 6emurrer to 8vidence% Civil Case vs. Criminal Case (&$$4) Compare the effects of a denial of demurrer to evidence in a civil case with those of a denial of demurrer to evidence in a criminal case# <.
SUGGESTED ANSWER:

)n a civil case" the defendant has the right to file 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 plaintiff" the appellate court reverses the order and renders udgment for the plaintiff" the defendant loses his right to present evidence# 82ule --9# )n a criminal case" the accused has to obtain leave of court to file 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 insufficiency of the evidence on its own initiative after giving the prosecution the opportunity to be heard# (Sec. 23 of Rule 119) 6iscovery% Modes of 6iscovery (&$$$) Describe briefly at least five 859 modes of discovery under the 2ules of Court# 85.9
SUGGESTED ANSWER:

'ive modes of discovery under the 2ules of Court areK D%1&S)()&*# By leave of court after urisdiction has been obtained over any defendant or over property which is the sub ect 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 ta4en" at the instance of any party" by deposition upon oral e:amination or written interrogatories# (Sec. 1, Rule 23, 1997
Rules of i!il "roce#ure.)

)*(%22&3$(&2)%S (& 1$2()%S# Under the same conditions specified in section A of 2ule 2-" any party shall file and serve upon any adverse party written interrogatories regarding material and relevant facts to be answered by the party served# 8Sec. 1, Rule 2(, 1997 Rules of
i!il "roce#ure.)

$D>)SS)&* BJ $D0%2S% 1$2(J# $t any time after issues have been oined" a party may file 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 i!il "roce#ure.) Remedial Law Bar Examination Q & A (1997-2006)

<# 12&DUC()&* &2 )*S1%C()&* &' D&CU>%*(S &2 (;)*3S# Upon 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 ob ect or operation thereon# (Sec. 1,
Rule 27, 1997 Rule 27 Rules of i!il "roce#ure.)

6iscovery% Modes%

ub)oena 6uces -ecum (1997)

)n an admiralty case filed by $ against J Shipping Lines 8whose principal offices are in >anila9 in the 2(C" Davao City" the court issued a subpoena duces tecum directing J" the president of the shipping company" to appear and testify at the trial and to bring with him several documents# 8a9 &n what valid ground can J refuse to comply with the subpoena duces tecum7 8b9 ;ow can $ ta4e the testimony of J and present the documents as e:hibits other than through the subpoena from the 2(C7
SUGGESTED ANSWER:

8a9 J can refuse to comply with the subpoena duces tecum on the ground that he resides more than 50 8now A009 4ilometers from the place where he is to testify" (Sec. 9 of former Rule
23; Sec. 1) of new Rule 21).

8b9 $ can ta4e the testimony of J and present the documents as e:hibits by ta4ing his deposition through oral e:amination or written interrogatories# (Rule 24; new Rule 23) ;e may also file a motion for the production or inspection of documents# (Rule 27).
ALTERNATI E ANSWER:

8a9 (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 dayFs attendance and the 4ilometrage allowed by the rules# 6iscovery% Production and /ns)ection of 6ocuments (&$$&) (he plaintiff sued the defendant in the 2(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 anne:# Before

answering" the defendant filed a motion for an order directing the plaintiff to produce the original of the note so that the defendant could inspect it and verify his signature and the handwritten entries of the dates and amounts# Should the udge grant the defendantHs motion for production and inspection of the original of the promissory note7 5hy7 82.9 $ssuming that an order for production and inspection was issued but the plaintiff failed to comply with it" how should the defendant plead to the alleged e:ecution of the note7 8-.9
by: sirdondee@gmail.com Page 21 of 66
SUGGESTED ANSWER:

8A9 Jes" 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# 829 (he defendant is not re=uired to deny under oath the genuineness and due e:ecution of the promissory note" because of the non!compliance by the plaintiff with the order for production and inspection of the original thereof# (Rule *, sec. *).
ALTERNATI E ANSWER:

829 (he defendant may file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of the court for the production and inspection of the promissory note# [Rule 29 Sec. 3(c)]. 6ismissal% Motion to 6ismiss% (es Judicata (&$$$) $B" 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 $BHs lawfully wedded husband# %' filed his answer denying his paternity with counterclaim for damages# Subse=uently" $B filed a manifestation in court that in view of the denial made by %'" it would be futile to pursue the case against %'# $B agreed to move for the dismissal of the complaint" sub ect to the condition that %' will withdraw his counter claim for damages# $B and %' filed a oint motion to dismiss# (he court dismissed the case with pre udice# Later on" minor son CD" represented by $B" filed another complaint for support against %'# %' filed a motion to dismiss on the ground of res udicata# a9 )s res udicata a valid ground for dismissal of the second complaint7 %:plain your answer 8-.9 b9 5hat are the essential re=uisite of res udicata7 82.9
SUGGESTED ANSWER:

8a9 *o" res udicata is not a defense in an action for support even if the first case was dismissed with pre udice on a oint motion to dismiss# (he plaintiffHs mother agreed to the dismissal of the complaint for support in view of the defendantHs 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# (Art! &$45! Civil Code% 6e
Asis v. Court of A))eals! 4$4 C(A 17# G1999E).

8b9 (he %ssential 2e=uisites of 2es +udicata areK the udgment or order rendered must be finalE the court rendering the same must have urisdiction of the sub ect matter and of the partiesE it must be a udgment or order on the meritsE and
Remedial Law Bar Examination Q & A (1997-2006)

there must be between the two cases identity of parties" identity of sub ect matter" and identity of causes of action# ( an 6iego v.
<#
Cardona! 7$ P"il! &*1 G193$E)

8vidence% Admissibility% P"otoco)ies (&$$$)

)f the photocopies of official receipts and photocopies of affidavits were attached to the position paper submitted by plaintiff in an action for unlawful detainer filed with >unicipal (rial Court on which basis the court rendered udgment in favor of plaintiff7 %:plain# 82.9
SUGGESTED ANSWER:

(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# (Sec. 9 of t0e Re!ise# Rule on Summar% "roce#ure). 1hotocopies of official receipts and affidavits are not admissible without proof of loss of the originals# (Sec. 3 of Rule
13))

.orum

"o))ing% 6efinition (&$$#) 5hat is forum shopping7 82#5.9


SUGGESTED ANSWER:

'orum shopping is the act of a party which consists of filing multiple suits" simultaneously or successively" for the purpose of obtaining a favorable udgment
(:eyson v. 0ffice of t"e 0mbudsman! 1.(. 2o. 14399$! A)ril &7! &$$$% Lulienco v. CA! 1.(. 2o. 141#9&! June 1$!1999% C"em)"il 89)ort ; /m)ort Cor). v. CA! 1.(. 2os. 11&34*,49! 6ecember 1&! 1995).

.orum

"o))ing% 8ffects% :acF of Certification (&$$#) ;oney filed with the 2egional (rial Court" (aal" Batangas a complaint for specific performance against Bernie# 'or lac4 of certification against forum shopping" the udge dismissed the complaint# ;oneyFs lawyer filed a motion for reconsideration" attaching thereto an amended complaint with the certification against forum shopping# )f you were the udge" how will you resolve the motion7 85.9
SUGGESTED ANSWER:

)f ) were the udge" the motion should be denied after hearing because" as e:pressly provided in the 2ules" 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 pre udice" unless otherwise provided (Sec. (, Rule 7, 1997 Rules of i!il "roce#ure). ;owever" the trial court in the e:ercise of its sound discretion" may choose to be liberal and consider the amendment as substantial compliance
(1reat out"ern Maritime ervices Cor). v. Acuna! 1.(. 2o. 13$1*9! .ebruary &*!&$$5% C"an v. (-C of Hamboanga del 2orte! 1.(. 2o. 139&54! A)ril 15! &$$3% >y v. :and BanF! 1.(. 14#1$$! July &3! &$$$).

1en. Princi)les% Juestions of :a' vs. Juestions of .act (&$$3)

Distinguish Iuestions of law from Iuestions of fact# by: sirdondee@gmail.com Page 22 of 66


SUGGESTED ANSWER:

$ IU%S()&* &' L$5 is when the doubt or difference arises as to what the law is on a certain set of facts" while a IU%S()&* &' '$C( is when the doubt or difference arises as to the truth or falsehood of alleged facts# ((amos v. Pe)si,Cola Bottling Co.! 19
C(A &*9! G19#7$E).

Judgment% Annulment of Judgment% 1rounds (199*)

5hat are the grounds for the annulment of a udgment of the 2(C 82(C97 ,2./
SUGGESTED ANSWER:

(he grounds for annulment of udgment of the 2(C are %:trinsic 'raud and Lac4 of +urisdiction# (Sec, 2, Rule 47, 1997 Rules of i!il "roce#ure.) Judgment% 8nforcement% 5,year )eriod (1997) $" a resident of Dagupan City" secured a favorable udgment in an e ectment case against N" a resident of IueCon City" from the >(Cof >anila# (he udgment" entered on A5 +une ADDA" had not as yet been e:ecuted# a9 )n +uly ADDG" $ decided to enforce the udgment of the >(Cof >anila# 5hat is the procedure to be followed by $ in enforcing the udgment7 b9 5ith what court should $ institute the proceedings7
SUGGESTED ANSWER:

8a9 $ can enforce the udgment by another action reviving the +udgment because it can no longer be enforced by motion as the five!year period within which a udgment may be enforced by motion has already e:pired# (Sec. . of former an# new Rule 39). 8b9 $ may institute the proceedings in the 2(C in accordance with the rules of venue because the enforcement of the +udgment is a personal action incapable of pecuniary estimation#
ALTERNATI E ANSWER:

8b9 $ may institute the proceeding in a >(Cwhich has urisdiction over the area where the real property involved is situated# (Sec. 1 of Rule 4). Judgment% 8nforcement% .oreign Judgment (&$$5) Under $rticle AA<< of the *ew Civil Code" an action upon a udgment must be brought within A0 years from the time the right of action accrues# )s this provision applicable to an action filed in the 1hilippines to enforce a foreign udgment7 %:plain# 8A0.9
ALTERNATI E ANSWER:

$rticle AA<< of the Civil Code which re=uires that an action upon a udgment 8though without distinction9 must be brought within A0 years from the time the right of action accrues" does not apply to an action filed in the 1hilippines to enforce a foreign udgment# 5hile we can say that where the law does not distinguish" we should not distinguish" still the law does not

evidently contemplate the inclusion of


!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

foreign udgments# $ local udgment may be enforced by motion within five years and by action within the ne:t five years# (Rule 39) (hat is not the case with respect to foreign udgments which cannot be enforced by mere motion#
ALTERNATI E ANSWER:

$rticle AA<< of the Civil Code re=uires that an action upon a udgment 8though without distinction9 must be brought within A0 years from the time the right of action accrues# (here seems no cogent reason to e:clude foreign udgments from the operation of this rule" sub ect to the re=uirements of 2ule -D" Sec# <? of the 2ules of Court which establishes certain re=uisites for proving the foreign udgment# 1ursuant to these provisions" an action for the enforcement of the foreign udgment may be brought at any time within A0 years from the time the right of action accrues# Judgment% 89ecution )ending A))eal (&$$&) (he trial court rendered udgment ordering the defendant to pay the plaintiff moral and e:emplary damages# (he udgment was served on the plaintiff on &ctober A" 200A and on the defendant on &ctober 5" 200A# &n &ctober ?" 200A" the defendant filed a notice of appeal from the udgment" but the following day" &ctober D" 200A" the plaintiff moved for the e:ecution of the udgment pending appeal# (he trial court granted the motion upon the posting by the plaintiff of a bond to indemnify the defendant for damages it may suffer as a result of the e:ecution# (he court gave as a special reason for its order the imminent insolvency of the defendant# )s the order of e:ecution pending appeal correct7 5hy7 85.9
SUGGESTED ANSWER:

*o" because awards for moral and e:emplary damages cannot be the sub ect of e:ecution pending appeal# (he e:ecution of any award for moral and e:emplary damages is dependent on the outcome of the main case# Liabilities for moral and e:emplary damages" as well as the e:act amounts remain uncertain and indefinite pending resolution by the Court of $ppeals or Supreme Court# G(CP/ v. :antin!
143 C(A 495 (19*5)% /nternational c"ool! /nc. v. Court of A))eals! 4$9 C(A 373 (1999)E.
ALTERNATI E ANSWER:

Jes" because only moral and e:emplary damages are awarded in the udgment and they are not dependent on other types of damages# >oreover" the motion for e:ecution was filed while the court had urisdiction 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# 82ule -D" sec# 29 by: sirdondee@gmail.com Page 23 of 66 Judgment% /nterlocutory 0rder% Partial ummary Judgments (&$$3) $fter defendant has served and filed his answer to plaintiffs complaint for damages before the proper 2(C" plaintiff served and filed a motion 8with supporting affidavits9 for a summary udgment in his favor upon all of his claims# Defendant served and filed his opposition 8with supporting affidavits9 to the motion# $fter due hearing" the court issued an order 8A9 stating that the court has found no genuine issue as to any material fact and thus concluded that plaintiff is entitled to udgment in his favor as a matter of law e:cept as to the amount of damages recoverable" and 829 accordingly ordering that plaintiff shall have udgment summarily against defendant for such amount as may be found due plaintiff for damages" to be ascertained by trial on &ctober B" 200<" at ?K-0 oFcloc4 in the morning# >ay defendant properly ta4e an appeal from said order7 &r" may defendant properly challenge said order thru a special civil action for certiorari7 2eason# 85.9
SUGGESTED ANSWER:

*o" plaintiff may not properly ta4e an appeal from said order because it is an interlocutory order" not a final and appealable order (Sec. 4 of Rule 3(). )t does not dispose of the action or proceeding 8Sec. 1 of Rule 399# 1$2()$L SU>>$2J +UD3>%*(S are interlocutory# (here is still something to be done" which is the trial for the ad udication of damages
(Province of Pangasinan v. Court of A))eals! &&$ C(A 7&# G1994J% 1uevarra v. Court of A))eals! &$9 P"il. &31 G19*4E)" but the defendant may properly challenge said order thru a special civil action for certiorari# (Sec. 1 [c] an# last 7ar. of Rule 41)

Judgment% Judgment on t"e Pleadings (1999)

a9 5hat are the grounds for udgment on the pleadings7 82.9 b9 $Fs $nswer admits the material allegations of BFs Complaint# >ay the court motu 7ro7rio render udgment on the pleadings7 %:plain# 82.9

c9 $ brought an action against her husband B for annulment of their marriage on the ground of psychological incapacity" B filed his $nswer to the Complaint admitting all the allegations therein contained# >ay $ move for udgment on the pleadings7 %:plain# 82.9
SUGGESTED ANSWER:

a9 (he grounds for udgment on the pleadings are where an answer fails to tender an issue" or otherwise admits the material allegations of the adverse partyFs pleading# (Sec. 1, Rule
34).

b9 *o" a motion must be filed by the adverse party# (Sec. 1, Rule 34) (he court cannot motu 7ro7rio render udgment on the pleadings# c9 *o" because even if BFs answer to $Fs complaint for annulment of their marriage admits all the allegations therein contained" the material facts
Remedial Law Bar Examination Q & A (1997-2006) (Sec. 1 of Rule 34.)
ANOT!ER ANSWER:

alleged in the complaint must always be proved#


c# *o# (he court shall order the prosecutor to investigate whether or not a collusion between the parties e:ists" and if there is no collusion" to intervene for the State in order to see to it that the evidence submitted is not fabricated# (Sec. 3[8], Rule 9) %vidence must have to be presented in accordance with the re=uirements set down by the Supreme Court in
(e)ublic vs. Court of A))eals and Molina (&#* C(A 19*.)

Judgment% Judgment on t"e Pleadings (&$$5)

)n a complaint for recovery of real property" the plaintiff averred" among others" that he is the owner of the said property by virtue of a deed of sale e:ecuted by the defendant in his favor# Copy of the deed of sale was appended to the complaint as $nne: L$L thereof# )n his unverified answer" the defendant denied the allegation concerning the sale of the property in =uestion" as well as the appended deed of sale" for lac4 of 4nowledge or information sufficient to form a belief as to the truth thereof# )s it proper for the court to render udgment without trial7 %:plain# 8<.9
SUGGESTED ANSWER:

Defendant cannot deny the sale of the property for lac4 of 4nowledge or information sufficient 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# (P"il! Advertising
Counselors! /nc. v. (evilla!

1.(. 2o. :,41*#9! August *! 1974%

ec. 1$! (ule *)

>oreover" the genuineness and due e:ecution 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 udgment on the pleadings can be rendered by the court without need of a trial# Judgment% Mandamus vs. Juo Karranto (&$$1) 1etitioner 'abian was appointed %lection 2egistrar of the >unicipality of Sevilla supposedly to replace the respondent %lection 2egistrar 1ablo 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 e:ercise his functions thereto# 1etitioner 'abian then filed a petition for mandamus against 1ablo but the trial court dismissed 'abianHs petition contending that =uo warranto is the proper remedy# )s the court correct in its ruling7 5hy7 85.9
SUGGESTED ANSWER:

Jes" the court is correct in its ruling# >andamus will not lie# (his remedy applies only where petitionerHs right is founded clearly in law" not when it is doubtful# 1ablo was transferred without his consent by: sirdondee@gmail.com Page 24 of 66 which is tantamount to removal without cause" contrary to the fundamental guarantee on non!removal e:cept for cause# Considering that 1edro continued to occupy the disputed position and e:ercise his functions therein" the proper remedy is =uo warranto" not mandamus# N1arces v. Court of
A))eals! &59 C(A 99 (199#)E
ALTERNATI E ANSWER:

Jes" the court is correct in its ruling# >andamus lies when the respondent unlawfully e:cludes another from the use and en oyment of a right or office to which such other is entitled# (Sec. 2, Rule .(). )n this case" 1ablo has not unlawfully e:cluded 'abian from the &ffice of %lection 2egistrar# (he remedy of 'abian is to file an action of =uo warranto in his name against 1ablo for usurping the office# (Sec. (, Rule
..)

Judgment%

oundness% Attac"ment (&$$&)

(he plaintiff obtained a writ of preliminary attachment upon a bond of 1A million# (he writ was levied on the defendantHs property" but it was discharged upon the posting by the defendant of a counterbond in the same amount of 1A million# $fter trial" the court rendered udgment finding that the plaintiff had no cause of action against the defendant and that he had sued out the writ of attachment maliciously# $ccordingly" the court dismissed the complaint and ordered the plaintiff and its surety to pay ointly to the defendant 1A#5 million as actual damages" 10#5 million as moral damages and 10#5 million as e:emplary damages# %valuate the soundness of the udgment from the point of view of procedure# 85.9
SUGGESTED ANSWER:

(he udgment 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 udgment against the surety cannot e:ceed the amount of its counterbond of 1A million# Judgments% 8nforcement% 89amination of 6efendant (&$$&) (he plaintiff" a >anila resident" sued the defendant" a resident of >alolos Bulacan" in the 2(C! >anila for a sum of money# 5hen the sheriff tried to serve the summons with a copy of the complaint on the defendant at his Bulacan residence" the sheriff was told that the defendant had gone to >anila for business and would not be bac4 until the evening of that day# So" the sheriff served the summons" together with a copy of the complaint" on the defendantHs A?year!old daughter" who was a college student# 'or the defendantHs failure to answer the complaint within the reglementary period" the trial court" on motion of the plaintiff" declared the defendant in default# $ month later" the trial court rendered udgment holding the defendant liable for the entire amount prayed for in the complaint#
Remedial Law Bar Examination Q & A (1997-2006)

$# $fter the udgment had become final" a writ of e:ecution was issued by the court# $s the writ was returned unsatisfied" the plaintiff filed a motion for an order re=uiring the defendant to appear before it and to be e:amined regarding his property and income# ;ow should the court resolve the motion7 82.9
SUGGESTED ANSWER:

Jurisdiction% @abeas Cor)us% Custody of Minors (&$$5)

5hile >arietta was in her place of wor4 in >a4ati City" her estranged husband Carlo barged into her house in 1arana=ue City" abducted their si:!year old son" 1ercival" and brought the child to his hometown in Baguio City# Despite >ariettaFs pleas" Carlo refused to return their child# >arietta" through counsel" filed a petition for habeas corpus against Carlo in the Court of $ppeals in >anila to compel him to produce their son" before the court and for her to regain custody# She alleged in the petition that despite her efforts" she could no longer locate her son# )n his comment" Carlo alleged that the petition was erroneously filed in the Court of $ppeals as the same should have been filed in the 'amily Court in Baguio City which" under 2epublic $ct *o# ?-GD" has e:clusive urisdiction" over the petition# >arietta replied that under 2ule A02 of the 2ules of Court" as amended" the petition may be filed in the Court of $ppeals and if granted" the writ of habeas corpus shall be enforceable anywhere in the 1hilippines# 5hose contention is correct7 %:plain# 85.9
SUGGESTED ANSWER:

>ariettaFs contention is correct# (he Court of $ppeals has concurrent urisdiction with the family courts and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue" notwithstanding the provision in the 'amily Courts $;# (R.-. 'o. *3.9) that family courts have e:clusive urisdiction in such cases# (-"ornton v. -"ornton! 1.(.
2o. 15359*! August! &$$3)

Jurisdiction% :acF of Jurisdiction% Pro)er Action of t"e Court (&$$3)

1laintiff filed a complaint for a sum of money against defendant with the >e(C!>a4ati" the total amount of the demand" e:clusive of interest" damages of whatever 4ind" attorneyFs fees" litigation e:penses" and costs" being 1A"000"000# )n due time" defendant filed a motion to dismiss the complaint on the ground of the >e(CFs lac4 of urisdiction over the sub ect matter# $fter due hearing" the >e(C 8A9 ruled that the court indeed lac4ed urisdiction over the sub ect matter of the complaintE and 829 ordered that the case therefore should be forwarded to the proper 2(C immediately# 5as the courtFs ruling concerning urisdiction correct7 5as the courtFs order to forward the case proper7 %:plain briefly# 85.9
SUGGESTED ANSWER:

by: sirdondee@gmail.com Page 25 of 66 Jes# (he >e(C did not have urisdiction over the case

because the total amount of the demand e:clusive of interest" damages of whatever 4ind" attorneyFs fees" litigation e:penses" and costs" was 1A># )ts urisdictional amount at this time should not e:ceed 1<00#000#00 (Sec. 33 of 4.". 4i2. 129, as amen#e# b%

R.-. 'o. 7.91).

(he courtFs order to forward the case to the 2(C is not proper# )t should merely dismiss the complaint# Under Sec# - of 2ule AG" 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% 6eat" of a Party% 8ffect (199*) $ filed a complaint for the recovery of ownership of land against B who was represented by her counsel N# )n the course of the trial" B died# ;owever" N failed to notify the court of BFs death# (he court proceeded to hear the case and rendered udgment against B# $fter the +udgment became final" a writ of e:ecution was issued against C" who being BFs sole heir" ac=uired the property# )f you were counsel of C" what course of action would you ta4e7 ,-./
SUGGESTED ANSWER:

$s counsel of C" ) would move to set aside the writ of e:ecution and the udgment for lac4 of urisdiction and lac4 of due process in the same court because the udgment is void# )f N had notified the court of BFs death" the court would have ordered the substitution of the deceased by C" the sole heir of B# (Sec. 1. of Rule 3) (he court ac=uired no urisdiction over C upon whom the trial and the udgment are not binding#
(.erreira us. /barra ?da. de 1onDales! 1$3 P"il. 134% ?da. de la CruD vs. Court of A))eals! ** C(A #95% :a'as us. Court of A))eals! 13# C(A 174.) ) could also file an action to annul the

udgment for lac4 of urisdiction because C" as the successor of B" was deprived of due process and should have been heard before udgment#
(Rule 47)
ALTERNATI E ANSWER:

5hile there are decisions of the Supreme Court which hold that if the lawyer failed to notify the court of his clientFs death" the court may proceed even without substitution of heirs and the udgment is valid and binding on the heirs of the deceased (.lorendo vs. Coloma! 1&9 C(A 4$.)! as counsel of C" ) will assail the udgment and e:ecution for lac4 of due process# Parties% 6eat" of a Party% 8ffect (1999) 5hat is the effect of the death of a party upon a pending action7 82.9
SUGGESTED ANSWER:

A# 5hen the claim in a pending action is purely personal" the death of either of the parties e:tinguishes the claim and the action is dismissed#
Remedial Law Bar Examination Q & A (1997-2006)

5hen the claim is not purely personal and is not thereby e:tinguished" the party should be substituted by his heirs or his e:ecutor or administrator# (Sec. 1., Rule 3) )f the action is for recovery of money arising from contract" e:press or implied" and the defendant dies before entry of final udgment 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 final udgment# $ favorable udgment obtained by the plaintiff 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% 6eat" of a Party% 8ffect (1999)

5hen $ 8buyer9 failed to pay the remaining balance of the contract price after it became due and demandable" B 8seller9 sued him for collection before the 2(C# $fter both parties submitted their respective evidence" $ 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# 5ill you grant the motion7 %:plain# 82.9 5ill your answer be the same if $ died while the case is already on appeal to the Court of $ppeals7 %:plain# 82.9 )n the same case" what is the effect if B died before the 2(C has rendered udgment7 82.9
SUGGESTED ANSWER:

*o" because the action will not be dismissed but shall instead be allowed to continue until entry of final udgment# 8)d#9 *o# )f $ died while the case was already on appeal in the Court of $ppeals" the case will continue because there is no entry yet of final udgment# 8)d#9 (he effect is the same# (he action will not be dismissed but will be allowed to continue until entry of final udgment# 8)d#9
Parties% -"ird Party Claim (&$$$)

+6Hs real property is being attached by the sheriff in a civil action for damages against L># +6 claims that he is not a party to the caseE that his property is not involved in said caseE and that he is the sole registered owner of said property# Under the 2ules of Court" what must +6 do to prevent the Sheriff from attaching his property7 85.9
SUGGESTED ANSER:

)f the real property has been attached" the remedy is to file a third!party claim# (he third! party claimant should ma4e an affidavit of his title to the property by: sirdondee@gmail.com Page 26 of 66 attached" stating the grounds of his title thereto" and serve such affidavit upon the sheriff 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 file a separate action to vindicate his claim to the property involved and secure the necessary reliefs" such as preliminary in unction" which will not be considered as interference with a court of coordinate urisdiction#
(0ng v. -ating! 139 C(A &#5! G19*7E)

Parties% -"ird,Party Claim (&$$5)

$ obtained a money udgment against B# $fter the finality of the decision" the court issued a writ of e:ecution for the enforcement thereof# Conformably with the said writ" the sheriff levied upon certain properties under BFs name# C filed a third!party claim over said properties claiming that B had already transferred the same to him# $ moved to deny the third!party claim and to hold B and C ointly and severally liable to him for the money udgment alleging that B had transferred said properties to C to defraud him 8$9# $fter due hearing" the court denied the third!party claim and rendered an amended decision declaring B and C ointly and severally liable to $ for the money udgment# )s the ruling of the court correct7 %:plain# 8<.9
SUGGESTED ANSWER:

*&# C has not been properly impleaded as a party defendant# ;e cannot be held liable for the udgment against $ without a trial# )n fact" since no bond was filed by B" the sheriff is liable to C for damages# C can file 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 e:ecution may proceed where there is a finding that the claim is fraudulent#
(-anongan v. amson! 1.(. 2o. 13$**9! May 9! &$$&)

Petition for Certiorari (&$$$)

$B mortgaged his property to CD# $B failed to pay his obligation and CD filed an action for foreclosure of mortgage# $fter trial" the court issued an &rder granting CDHs prayer for foreclosure of mortgage and ordering $B to pay CD the full amount of the mortgage debt including interest and other charges not later than A20 days from date of receipt of the &rder# $B received the &rder on $ugust A0" ADDD# *o other proceeding too4 place thereafter# &n December 20" ADDD" $B tendered the full amount ad udged by the court to CD but the latter refused to accept it on the ground that the amount was tendered beyond the A20!day period granted by the court# $B filed 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 Section 2" 2ule G? of the 2ules of Court which give $B A20 days from entry of udgment" and
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

not from date of receipt of the &rder# (he court denied his motion on the ground that the &rder had already become final and can no longer be amended to conform with Section 2" 2ule G?# $ggrieved" $B files a petition for certiorari against the Court and CD# 5ill the petition for certiorari prosper7 %:plain# 85.9
SUGGESTED ANSWER:

Jes# (he court erred in issuing an &rder granting CDHs prayer for foreclosure of mortgage and ordering $B to pay CD the full amount of the mortgage debt including interest and other charges not later than A20 days from receipt of the &rder# (he court should have rendered a udgment which is appealable# Since no appeal was ta4en" the udgment became final on $ugust 25" ADDD" which is the date of entry of udgment# (Sec 2, Rule 3.) ;ence" $B had up to December 2<" ADDD within which to pay the amount due# (Sec. 2, Rule .*) (he court gravely abused its discretion amounting to lac4 or e:cess of urisdiction in denying $BHs motion praying that CD be directed to receive the amount tendered# Petition for (elief ; Action for Annulment (&$$&) >ay an order denying the probate of a will still be overturned after the period to appeal therefrom has lapsed7 5hy7 8-.9
SUGGESTED ANSWER:

Jes" an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed# $ 1%()()&* '&2 2%L)%' may be filed on the grounds of fraud" accident" mista4e or e:cusable negligence within a period of si:ty 8G09 days after the petitioner learns of the udgment or final order and not more than si: 8G9 months after such udgment or final order was entered G(ule 4*! secs. 1 ; 4% oriano v.
Asi! 1$$ P"il. 7*5 (1957)E.

$n $C()&* '&2 $**UL>%*( may also be filed on the ground of e:trinsic fraud within four 8<9 years from its discovery" and if based on lac4 of urisdiction" before it is barred by laches or estoppel#
(Rule 47, secs. 2 5 3)

Petition for (elief% /n<unction (&$$&)

$ default udgment was rendered by the 2(C ordering D to pay 1 a sum of money# (he udgment became final" but D filed a petition for relief and obtained a writ of preliminary in unction staying the enforcement of the udgment# $fter hearing" the 2(C dismissed DHs petition" whereupon 1 immediately moved for the e:ecution of the udgment in his favor# Should 1Hs motion be granted7 5hy7 8-.9
SUGGESTED ANSWER:

1Hs immediate motion for e:ecution of the udgment in his favor should be granted because the dismissal of DHs petition for relief also dissolves the writ of preliminary in unction staying the enforcement of the by: sirdondee@gmail.com Page 27 of 66 udgment" even if the dismissal is not yet final# G1oleD
v. :eonidas! 1$7 C(A 1*7 (19*1)E.

Pleadings% Amendment of Com)laint% By :eave of Court (&$$4)

$fter an answer has been filed" can the plaintiff amend his complaint" with leave of court" by changing entirely the nature of the action7 <.
SUGGESTED ANSWER:

Jes" the present rules allow amendments substantially altering the nature of the cause of action# (Sec. 3, Rule 1), 1977 Rules of i!il "roce#ure; @eirs of Marcelino Pagobo
v. Court of A))eals! &*$ C(A *7$ G1997E).

(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 ustice and prevent delay and e=ually promote the laudable ob ective of the rules which is to secure a ust" speedy and ine:pensive disposition of every action and proceeding# 80alenCuela v# Court of $ppeals" -GSC2$ BBD ,200A/9# Pleadings% Amendment of Com)laint% By :eave of Court% Prescri)tive Period (&$$$) N" an illegitimate child of J" celebrated her A?th birthday on >ay 2" ADDG# $ month before her birthday" J died# (he legitimate family of J refused to recogniCe N as an illegitimate child of J# $fter countless efforts to convince them" N filed on $pril 25" 2000 an action for recognition against O" wife of J# $fter O filed her answer on $ugust A<" 2000" N filed a motion for leave to file an amended complaint and a motion to admit the said amended complaint impleading the three 8-9 legitimate children of J# (he trial court admitted the amended complaint on $ugust 22" 2000# 5hat is the effect of the admission of the amended complaint7 ;as the action of N prescribed7 %:plain# 85.9
SUGGESTED ANSWER:

*o# (he action filed on $pril 25" 2000 is still within the four!year prescriptive period which started to run on >ay 2" ADDG# (he amended complaint impleading the three legitimate children" though admitted on $ugust 22" 2000 beyond the four!year prescriptive period" retroacts to the date of filing of the original complaint# $mendments impleading new defendants retroact to the date of the filing of the complaint because they do not constitute a new cause of action#
(?erDosa v. Court of A))eals! &99 C(A 1$$ G199*E).
8*oteK (he four!year period is based on $rticle 2?5 of the Civil Code9 ALTERNATI E ANSWER:

Under the ADDB 2ules of Civil 1rocedure" if an additional defendant is impleaded in a later pleading" the action is commenced with regard to him on the date of the filing of such later pleading" irrespective of whether the motion for its admission" if necessary" is denied by the court# (Sec. ( of Rule 1).
Remedial Law Bar Examination Q & A (1997-2006)

Conse=uently" the action of N has prescribed with respect to the three 8-9 legitimate children of J who are indispensable parties#
ANOT!ER ALTERNATI E ANSWER:

Under $rticle AB5 of the 'amily Code" the action must be brought within the lifetime of N if the action is based on a record of birth or an admission of filiation in a public document or a

private handwritten instrument signed by J# )n such case" the action of N 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 J# )n such case" the action of N has prescribed# Pleadings% Amendment of Com)laint% Matter of (ig"t (&$$5) &n >ay A2" 2005" the plaintiff filed a complaint in the 2(C of IueCon City for the collection of 1250"000#00# (he defendant filed a motion to dismiss the complaint on the ground that the court had no urisdiction over the action since the claimed amount of 1250"000#00 is within the e:clusive urisdiction of the >etropolitan (rial Court" of IueCon City# Before the court could resolve the motion" the plaintiff" without leave of court" amended his complaint to allege a new cause of action consisting in the inclusion of an additional amount of 1200"000#00" thereby increasing his total claim to 1<50"000#000# (he plaintiff thereafter filed his opposition to the motion to dismiss" claiming that the 2(C had urisdiction" over his action# 2ule on the motion of the defendant with reasons# 8<.9
SUGGESTED ANSWER:

(he motion to dismiss should be denied# Basic is the rule that a motion to dismiss is not a responsive pleading# >nder t"e (ules! a )leader may amend "is )leading as a matter of rig"t before t"e ot"er )arty "as served "is res)onsive )leading# (Sec. 2, Rule 1), Rules of ourt) (he court" in allowing the amendment" would not be acting without urisdiction because allowing an amendment as a matter of right does not re=uire the e:ercise of discretion# (he court therefore would not be LactingL and thus" could not have acted without urisdiction# )t would have been different had the amendments been made after a responsive pleading had been served# (he court then would have been e:ercising 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 urisdiction# ( oledad v. Mamangun! 1.(. 2o.
:,179*4!

May 4$! 19#4% 1umabay v. Baralin! 1.(. 2o. :,4$#*4! May 41! 1977% Prudence (ealty v. CA! 1.(. 2o. 11$&73! Marc" &1! 1993)
ALTERNATI E ANSWER:

by: sirdondee@gmail.com Page 28 of 66 (he motion to dismiss should be granted# +urisdiction must

be conferred by the contents of the original complaint# $mendments are not proper and should be denied where the court has no urisdiction over the original complaint and the purpose of the amendment is to confer urisdiction on the court#
((osario v. Carandang! 1.(. 2o. :,7$7#! A)ril &*! 1955)

5hile a plaintiff is entitled to amend the complaint before a responsive pleading is served
(Sec. 2, Rule 1), 1997 Rules of i!il "roce#ure% (emington /ndustrial ales Cor)oration v. Court of A))eals! 1.(. 2o. 144#57! May &9! &$$&), still" a complaint cannot be amended to confer urisdiction on a court

where there was none to begin with# Pleadings% Amendment of Com)laint% -o Conform '7 8vidence (&$$3) During trial" plaintiff was able to present" without ob ection on the part of defendant in an e ectment case" evidence showing that plaintiff served on defendant a written demand to vacate the sub ect property before the commencement of the suit" a matter not alleged or otherwise set forth in the pleadings on file# >ay the corresponding pleading still be amended to conform to the evidence7 %:plain# 85.9
SUGGESTED ANSWER:

Jes# (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 e ectment suit" was presented by the plaintiff in evidence without ob ection on the part of the defendant# %ven if the demand to vacate was urisdictional" still" the amendment proposed was to conform to the evidence that was already in the record and not to confer urisdiction on the court" which is not allowed# 'ailure to amend" however" does not affect the result of the trial on these issues# 8Sec# 5 of 2ule A09# $L(%2*$()0% $*S5%2K )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 ob ection on the part of the defendant# )n unlawful detainer" however" the demand to vacate is urisdictional and since the court did not ac=uire urisdiction from the very beginning" the motion to conform to the evidence cannot be entertained# (he amendment cannot be allowed because it will in effect confer urisdiction when there is otherwise no urisdiction# Pleadings% Ans'er% 6efense% )ecific 6enial (&$$3) )n his complaint for foreclosure of mortgage to which was duly attached a copy of the mortgage deed" plaintiff 11 alleged inter alia as followsK 8A9 that defendant DD duly e:ecuted the mortgage deed"
Remedial Law Bar Examination Q & A (1997-2006)

copy of which is $nne: L$L of the complaint and made an integral part thereofE and 829 that to prosecute his complaint" plaintiff contracted a lawyer" CC" for a fee of 150#000# )n his answer" defendant alleged" inter alia" that he had no 4nowledge of the mortgage deed" and he also denied any liability for plaintiffs contracting with a lawyer for a fee# Does defendantFs answer as to plaintiffHs allegation no# A as well as no# 2 sufficiently raise an issue of fact7 2eason briefly# 85.9
SUGGESTED ANSWER:

$s to plaintiffs allegation no# A" defendant does not sufficiently raise an issue of fact" because he cannot allege lac4 of 4nowledge of the mortgage deed since he should have personal 4nowledge as to whether he signed it or not and because he did not deny under oath the genuineness and due e:ecution of the mortgage deed" which is an actionable document# $s to plaintiffHs allegation no# 2" defendant did not properly deny liability as to plaintiffs contracting with a lawyer for a fee# ;e did not even deny for lac4 of 4nowledge# (Sec. 1) of Rule
*).

Pleadings% Certification Against .orum

"o))ing (&$$$) $s counsel for $" B" C and D" $tty# NJ prepared a complaint for recovery of possession of a parcel of land against O# Before filling the complaint" NJ discovered that his clients were not available to sign the certification of non!forum shopping# (o avoid further delays in the filing of the complaint" NJ signed the certification and immediately filed the complaint in court# )s NJ ustified in signing the certification7 5hy7 85.9
SUGGESTED ANSWER:

*&" counsel cannot sign the anti!forum shopping certification because it must be e:ecuted by the Pplaintiff or principal partyQ himself ( ec. 5! (ule 7% 89cor)iDo v. >niversity of Baguio! 4$# C(A 397! G1999E)" since the rule re=uires personal 4nowledge by the party e:ecuting the certification" U*L%SS counsel gives a good reason why he is not able to secure his clientsH signatures and shows that his clients will be deprived of substantial ustice (0rtiD v. Court of A))eals! &99 C(A 7$*! G199*E) or unless he is authoriCed to sign it by his clients through a special power of attorney# Pleadings% Counterclaim against t"e Counsel of t"e Plaintiff (&$$3) 1N filed a suit for damages against DJ# )n his answer" DJ incorporated a counterclaim for damages against 1N and $C" counsel for plaintiff in said suit" alleging in said counterclaim" inter alia" that $C" as such counsel" maliciously induced 1N to bring the suit against DJ despite $CFs 4nowledge of its utter lac4 of factual and legal basis# )n due time" $C filed a motion to dismiss the counterclaim as against him on the ground that he is not a proper party to the case" by: sirdondee@gmail.com Page 29 of 66 he being merely plaintiffs counsel# )s the counterclaim of DJ compulsory or not7 Should $CFs motion to dismiss the counterclaim be granted or not7 2eason# 85.9
SUGGESTED ANSWER:

Jes# (he counterclaim of DJ is compulsory because it is one which arises out of or is connected with the transaction or occurrence constituting the sub ect matter of the opposing partyFs claim and does not re=uire for its ad udication the presence of third parties of whom the court cannot ac=uire urisdiction.(Sec. 7 of Rule .). (he motion to dismiss of plaintiffs counsel should not be granted because bringing in plaintiffs counsel as a defendant in the counterclaim is authoriCed by the 2ules# 5here it is re=uired for the grant of complete relief in the determination of the counterclaim" the court shall order the defendantFs counsel to be brought in since urisdiction over him can be obtained# ( ec. 1& of (ule #% Aurelio v. Court of A))eals! 19# C(A #73 G1993E). ;ere" the counterclaim was against both the plaintiff and his lawyer who allegedly maliciously induced the plaintiff to file the suit#
ALTERNATI E ANSWER:

(he counterclaim should be dismissed because it is not a compulsory counterclaim# 5hen a lawyer files a case for a client" he should not be sued on a counterclaim in the very same case he has filed as counsel# )t should be filed in a separate and distinct civil action# (C"aveD v.
andiganbayan! 194 G1991E) C(A &*&

Pleadings% Motions% Bill of Particulars (&$$4)

5hen can a bill of particulars be availed of7 5hat is the effect of non!compliance with the order of a bill of particulars7 <.
SUGGESTED ANSWER:

Before responding to a pleading" a party may move for a bill or particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading# )f the pleading is a reply" the motion must be filed within ten

8A09 days from service thereof# (Sec. 1 of Rule 12) )f the order is not complied with" the court may order the stri4ing out of the pleading or the portions thereof to which the order was directed or ma4e such other order as it deems ust# (Sec. 4 of Rule 12)
Pleadings% (e)ly% 8ffect of 2on,.iling of (e)ly (&$$$)

N files a complaint in the 2(C for the recovery of a sum of money with damages against J# J files his answer denying liability under the contract of sale and praying for the dismissal of the complaint on the ground of lac4 of cause of action because the contract of sale was superseded by a contract of lease"
Remedial Law Bar Examination Q & A (1997-2006)

e:ecuted and signed by N and J two wee4s after the contract of sale was e:ecuted# (he contract of lease was attached to the answer# N does not file a reply# 5hat is the effect of the non!filing of a reply7 %:plain# 8-.9
SUGGESTED ANSWER:

$ reply is generally optional# )f it is not filed" 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 filing a reply denying under oath the genuineness and due e:ecution of said contract" the plaintiff is deemed to have admitted the genuineness and due e:ecution thereof# ( ecs. 7 and *
(ule *% -oribio v. Bidin! 14& C(A 1#& G19*5E).

Pre<udicial Juestion% 8<ectment vs.

)ecific Performance (&$$$) BB files a complaint for e ectment in the >(Con the ground of non!payment of rentals against ++# $fter two days" ++ files in the 2(C a complaint against BB for specific performance to enforce the option to purchase the parcel of land sub ect of the e ectment case# 5hat is the effect of ++Hs action on BBHs complaint7 %:plain# 85.9
SUGGESTED ANSWER:

(here is no effect# (he e ectment case involves possession de facto only# (he action to enforce the option to purchase will not suspend the action of e ectment for non!payment of rentals# (Killman Auto
u))ly Cor). v. Court of A))eals! &$* C(A 1$* G199&E).

Pre,-rial% (eBuirements (&$$1)

Lilio filed a complaint in the >unicipal (rial Court of LanuCa for the recovery of a sum against +uan# (he latter filed his answer to the complaint serving a copy thereof on Lilio# $fter the filing of the answer of +uan" whose duty is it to have the case set for pre!trial7 5hy7 85.9
SUGGESTED ANSWER:

$fter the filing of the answer of +uan" the 1L$)*()'' has the duty to promptly move e: parte that the case be set for pre!trial# (Sec. 1, Rule1*). (he reason is that it is the plaintiff who 4nows when the last pleading has been filed and it is the plaintiff who has the duty to prosecute#
ALTERNATI E ANSWER:

)n the event the plaintiff files a reply" his duty to move that the case be set for pre!trial arises after the reply has been served and filed# Provisional (emedies (1999) 5hat are the provisional remedies under the rules7 82.9
SUGGESTED ANSWER:

(he provisional remedies under the rules are preliminary attachment" preliminary in unction" receivership" replevin" and support pendente lite# (Rules
(7 to .1, Rules of ourt).

by: sirdondee@gmail.com Page 30 of 66 Provisional (emedies% Attac"ment (1999)

)n a case" the property of an incompetent under guardianship was in custodia legis# Can it be attached7 %:plain# 82.9
SUGGESTED ANSWER:

$lthough 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 filed with the proper court and notice of the attachment served upon the custodian of such property# (Sec. 7, last 7ar., Rule (7) Provisional (emedies% Attac"ment (1999) >ay damages be claimed by a party pre udiced by a wrongful attachment even if the udgment is adverse to him7 %:plain# 82.9
SUGGESTED ANSWER:

Jes" damages may be claimed by a party pre udiced by a wrongful attachment even if the udgment is adverse to him# (his is authoriCed by the 2ules# $ claim" for damages may be

made on account of improper" irregular or e:cessive attachment" which shall be heard with notice to the adverse party and his surety or sureties# ( ec. &$! (ule 57% Javellana v. 6. 0.
PlaDa 8nter)rises /nc.! 4& C(A &*1.)

Provisional (emedies% Attac"ment (&$$1)

>ay a writ of preliminary attachment be issued e:!parte7 Briefly state the reason8s9 for your answer# 8-.9
SUGGESTED ANSWER:

Jes" an order of attachment may be issued e:!parte or upon motion with notice and hearing# (Sec. 2 of Rule (7) (he reason why the order may be issued e: parte isK 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# (Mindanao avings and :oan Association! /nc. v.
Court of A))eals! 17& C(A 3*$).

Provisional (emedies% Attac"ment (&$$5)

6aty filed an action against (yrone for collection of the sum of 1A >illion in the 2(C" with an e:!parte application for a writ of preliminary attachment# Upon posting of an attachment bond" the court granted the application and issued a writ of preliminary attachment# $pprehensive that (yrone might withdraw his savings deposit with the ban4" the sheriff immediately served a notice of garnishment on the ban4 to implement the writ of preliminary attachment# (he following day" the sheriff proceeded to (yroneFs house and served him the summons" with copies of the complaint containing the application for writ of preliminary attachment" 6atyFs affidavit" order of attachment" writ of preliminary attachment and attachment bond# 5ithin fifteen 8A59 days from service of the summons" (yrone filed a motion to dismiss and to
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

dissolve the writ of preliminary attachment on the following groundsK 8i9 the court did not ac=uire urisdiction over his person because the writ was served ahead of the summonsE 8ii9 the writ was improperly implementedE and 8iii9 said writ was improvidently issued because the obligation in =uestion was already fully paid# 2esolve the motion with reasons# 8<.9
SUGGESTED ANSWER:

(he motion to dismiss and to dissolve the writ of preliminary attachment should be denied# 8A9 (he fact that the writ of attachment was served ahead of the summons did not affect the urisdiction of the court over his person# )t ma4es the writ" unenforceable# (Sec. (, Rule. (7) ;owever" all that is needed to be done is to re!serve the writ# (0nate v.
Abrogar! 1M. 2o. 197494! .ebruary &4! 19*5)

829 (he writ was improperly implemented# Serving 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 ban4 deposits are attached pursuant to the writ# (Sec. 7[#], Rule (7) 8-9 (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, Rule (7) (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# 1ayment" however" serves as a ground for a motion to dismiss#
Provisional (emedies% Attac"ment vs. 1arnis"ment (1999)

Distinguish attachment from garnishment# 82.9


SUGGESTED ANSWER:

$ttachment and garnishment are distinguished from each other as followsK $(($C;>%*( is a provisional remedy that effects a levy on property of a party as security for the satisfaction of any udgment that may be recovered" while 3$2*)S;>%*( is a levy on debts due the udgment obligor or defendant and other credits" including ban4 deposits" royalties and other personal property not capable of manual delivery under a writ of e:ecution or a writ of attachment# Provisional (emedies% /n<unction (&$$1) >ay a writ of preliminary in unction be issued e:!parte7 5hy7 8-.9
SUGGESTED ANSWER:

*o" a writ of preliminary in unction may not be issued e: parte# $s provided in the 2ules" no preliminary in unction shall be granted without hearing and prior notice to the party or person sought to be en oined# (Sec. ( of Rule (*) (he reason is that a

by: sirdondee@gmail.com Page 31 of 66 preliminary in unction may cause grave and irreparable

in ury to the party en oined# Provisional (emedies% /n<unction (&$$4) Can a suit for in unction be aptly filed with the Supreme Court to stop the 1resident of the 1hilippines from entering into a peace agreement with the *ational Democratic 'ront7 8<.9
SUGGESTED ANSWER:

*o" a suit for in unction cannot aptly be filed with the Supreme Court to stop the 1resident of the 1hilippines from entering into a peace agreement with the *ational Democratic 'ront" which is a purely political =uestion# (9a#aran2 !. Santamaria, 37 "0il. 3)4 [1917]). (he 1resident of the 1hilippines is immune from suit# Provisional (emedies% /n<unctions% Ancillary (emedy vs. Main Action (&$$#) Distinguish between in unction as an ancillary remedy and in unction as a main action# 82#5.9
SUGGESTED ANSWER:

)n unction as an ancillary remedy refers to the preliminary in unction which re=uires the e:istence of a pending principal caseE while in unction 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 (emedies% /n<unctions% /ssuance '7out Bond (&$$#) >ay a 2egional (rial Court issue in unction without bond7 82.9
SUGGESTED ANSWER:

Jes" if the in unction that is issued is a final in unction# 3enerally" however" preliminary in unction cannot issue without bond unless e:empted by the trial court (Sec. 4[b] of Rule (*). Provisional (emedies% /n<unctions% (eBuisites (&$$#) 5hat are the re=uisites for the issuance of 8a9 a writ of preliminary in unctionE and 8b9 a final writ of in unction7 2e=uisites for the issuance of aK
SUGGESTED ANSWER:

a# 5rit of 1reliminary )n unction (Sec. 4, Rule (* 1997 Rules of i!il "roce#ure) are R 8A9 $ verified complaint showingE 829 (he e:istence of a right in esseE 8-9 0iolation or threat of violation of such rightE 8<9 Damages or in uries sustained or that will be sustained by reason of such violationE 859 *otice to all parties of raffle and of hearingE 8G9 ;earing on the applicationE 8B9 'iling of an appropriate bond and service thereof#
SUGGESTED ANSWER:

b# 5hile a final writ of in unction may be rendered by udgment after trial" showing applicant to be entitled to the writ (Sec. 9, Rule (* 1997 Rules of i!il "roce#ure).
Remedial Law Bar Examination Q & A (1997-2006)

Provisional (emedies% (eceivers"i) (&$$1)

+oa=uin filed 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 confirmed reports +oa=uin gathered" the machinery and e=uipment left with +ose were no longer sufficient to answer for the latterHs mortgage indebtedness# )n the meantime udgment was rendered by the court in favor of +oa=uin but the same is not yet final# 6nowing what +ose has been doing# )f you were +oa=uinHs lawyer" what action would you ta4e to preserve whatever remaining machinery and e=uipment are left with +ose7 5hy7 85.9
SUGGESTED ANSWER:

(o preserve whatever remaining machinery and e=uipment are left with +ose" +oa=uinHs lawyer should file a verified application for the appointment by the court of one or more receivers# (he 2ules 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 in ured and that its value is probably insufficient to discharge the mortgage debt#
(Sec. 1 of Rule (9).

Provisional (emedies% (e)levin (1999)

5hat is 2eplevin7 82.9


SUGGESTED ANSWER:

2eplevin or delivery of personal property consists in the delivery" by order of the court" of personal property by the defendant to the plaintiff" upon the filing of a bond# (Calo v. (oldan!
7# P"il. 335 G193#E)

Provisional (emedies%

u))ort Pendente :ite (1999) Before the 2(C" $ was charged with rape of his AGyear 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 as4ed the accused to support the child" and when he refused" the former filed 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 finding as to his guilt# 5ould you agree with the trial court if it denied the application for support pendente lite7 %:plain# 82.9
SUGGESTED ANSWER:

*o# (he provisional remedy of support pendente lite may be granted by the 2(C in the criminal action for rape# )n criminal actions where the civil liability includes support for the offspring as a conse=uence of the crime and the civil aspect thereof has not been by: sirdondee@gmail.com Page 32 of 66 waived" reserved or instituted prior to its filing" the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime# (Sec. . of Rule .1.) Provisional (emedies% u))ort Pendente :ite (&$$1) >odesto was accused of seduction by 0irginia" a poor" unemployed young girl" who has a child by >odesto# 0irginia was in dire need of pecuniary assistance to 4eep 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 ta4e two long years because of the heavily clogged court calendar before the udgment may be rendered# )f you were the lawyer of 0irginia" what action should you ta4e to help 0irginia in the meantime especially with the problem of feeding the child7 85.9
SUGGESTED ANSWER:

(o help 0irginia in the meantime" her lawyer should apply for Su77ort "en#ente +ite as provided in the 2ules# )n criminal actions where the civil liability included support for the offspring 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 offended party# (Sec. . of
Rule .1)

Provisional (emedies% -(0 (&$$1)

$n application for a writ of preliminary in unction with a prayer for a temporary restraining order is included in a complaint and filed in a multi!sala 2(C consisting of Branches A"2"- and <# Being urgent in nature" the %:ecutive +udge" who was sitting in Branch A" upon the filing of the aforesaid application immediately raffled the case in the presence of the udges of Branches 2"- and <# (he case was raffled to Branch < and udge thereof immediately issued a temporary restraining order# )s the temporary restraining order valid7 5hy7 85.9
SUGGESTED ANSWER:

*o# )t is only the %:ecutive +udge who can issue immediately a temporary restraining order effective only for seventy!two 8B29 hours from issuance# *o other +udge has the right or power to issue a temporary restraining order e: parte# (he +udge to whom the case is assigned will then conduct a summary hearing to determine whether the temporary restraining order shall be e:tended" but in no case beyond 20 days" including the original B2hour period# (Sec. ( of
Rule (*)
ALTERNATI E ANSWER:

(he temporary restraining order is not valid because the =uestion does not state that the matter is of e:treme urgency and the applicant will suffer grave in ustice and irreparable in ury# (Sec. ( of Rule (*)
Remedial Law Bar Examination Q & A (1997-2006)

Provisional (emedies% -(0 (&$$#)

Define a temporary restraining order 8(2&9# 82.9


SUGGESTED ANSWER:

$ 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

in unction (Sec. 4[c] an# [#], Rule (*,1997 Rules of i!il "roce#ure). Provisional (emedies% -(0 vs. tatus Juo 0rder (&$$#) Differentiate a (2& from a status =uo order# 82.9
SUGGESTED ANSWER:

$ status =uo order 8SI&9 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 in unctive relief# $ (2& is only good for 20 days if issued by the 2(CE G0 days if issued by the C$E until further notice if issued by the SC# (he SI& is without any prescriptive period and may be issued without a bond# $ (2& dies a natural death after the allowable periodE the SI& does not# $ (2& is provisional# SI& lasts until revo4ed# $ (2& is not e:tendible" but the SI& may be sub ect to agreement of the parties# Provisional (emedies% -(0% CA Justice 6e)t. (&$$#) >ay a ustice of a Division of the Court of $ppeals issue a (2&7 82.9
SUGGESTED ANSWER:

Jes" a ustice of a division of the Court of $ppeals may issue a (2&" as authoriCed under 2ule 5? and by Section 5" 2ule )0 of the )2C$ which additionally re=uires that the action shall be submitted on the ne:t wor4ing day to the absent members of the division for the ratification" modification or recall (@eirs of t"e
late Justice Jose B.:. (eyes v. Court of A))eals! 1.(. 2os. 1453&5,&#! 2ovember 13! &$$$).

Provisional (emedies% -(0% 6uration (&$$#)

5hat is the duration of a (2& issued by the %:ecutive +udge of a 2egional (rial Court7 82.9
SUGGESTED ANSWER:

)n cases of e:treme urgency" when the applicant will suffer grave in ustice and irreparable in ury" the duration of a (2& issued e: parte by an %:ecutive +udge of a 2egional (rial Court is B2 hours (2n# 7ar. of Sec. (, Rule (* 1997 Rules of i!il "roce#ure)# )n the e:ercise of his regular functions over cases assigned to his sala" an %:ecutive +udge may issue a (2& for a duration not e:ceeding a total of 20 days# (eglementary Period% u))lemental Pleadings (&$$$) (he 2(C rendered udgment against S(" copy of which was received by his counsel on 'ebruary 2?" 2000# &n >arch A0" 2000" S(" through counsel" filed a motion for reconsideration of the decision with notice to the Cler4 of Court submitting the motion for the consideration of the court# &n >arch A5" 2000" realiCing that the >otion lac4ed a notice of hearing" S(Hs counsel filed a supplemental pleading# by: sirdondee@gmail.com Page 33 of 66 5as the motion for 2econsideration filed within the reglementary period7 %:plain# 85.9
SUGGESTED ANSWER:

Jes" because the last day of filing a motion for reconsideration was >arch A5 if 'ebruary had 2? days or >arch AG if 'ebruary had 2D days# $lthough the original motion for reconsideration was defective because it lac4ed a notice of hearing" the defect was cured on time by its filing on >arch A5 of a supplemental pleading" provided that motion was set for hearing and served on the adverse party at least three 8-9 days before the date of hearing#(Sec. 4, Rule 1()#
ALTERNATI E ANSWER:

Since the supplemental pleading was not set for hearing" it did not cure the defect of the original motion# (emedies% A))eal to C% A))eals to CA (&$$&) a9 5hat are the modes of appeal to the Supreme Court7 82.9 b9 Comment on a proposal to amend 2ule A22" Section 28b9" in relation to Section -8c9" of the 2evised 2ules of Criminal 1rocedure to provide for appeal to the Court of $ppeals from the decisions of the 2(C in criminal cases" where the penalty imposed is reclusion perpetua or life imprisonment" sub ect to the right of the accused to appeal to the Supreme Court# 8-.9
SUGGESTED ANSWER:

$# (he modes of appeal to the Supreme Court areK 8a9 $11%$L BJ C%2()&2$2) on pure =uestions of law under 2ule <5 through a petition for review on certiorariE and 8b9 &2D)*$2J $11%$L in criminal cases through a notice of appeal from convictions imposing reclusion perpetua or life imprisonment or where a lesser penalty is involved but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense# (Rule 122, sec. 3) Convictions imposing the death penalty are elevated through automatic review# B# (here is no constitutional ob ection to providing in the 2ules of Court for an appeal to the Court of $ppeals from the decisions of the 2(C in criminal cases where the penalty imposed is reclusion perpetua or life imprisonment sub ect to the right of the accused to appeal to the Supreme Court" because it does not deprive the Supreme Court of the right to e:ercise ultimate review of the udgments in such cases#

(emedies% A))eal% (-C to CA (1999)

5hen is an appeal from the 2(C to the Court of $ppeals deemed perfected7 82.S NNN received a copy of the 2(C decision on +une D" ADDDE JJJ received it on the ne:t day" +une A0" ADDD# NNN filed a *otice of $ppeal on +une A5" ADDD# (he parties entered into a compromise on
Remedial Law Bar Examination Q & A (1997-2006)

+une AG" ADDD# &n +une A-" ADDD" JJJ" who did not appeal" filed with the 2(C a motion for approval of the Compromise $greement# NNN changed his mind and opposed the motion on the ground that the 2(C has no more urisdiction# 2ule on the motion assuming that the records have not yet been forwarded to the C$# 82.9
SUGGESTED ANSWER:

$n appeal from the 2(C to the Court of $ppeals is deemed perfected as to the appellant upon the filing of a notice of appeal in the 2(C in due time or within the reglementary period of appeal# $n appeal by record on appeal is deemed perfected as to the appellant with respect to the sub ect matter thereof upon the approval of the record on appeal filed in due time# (Sec. 9, Rule 41) (he contention of NNN that the 2(C has no more urisdiction over the case is not correct because at the time that the motion to approve the compromise had been filed" the period of appeal of JJJ had not yet e:pired# Besides" even if that period had already e:pired" the records of the case had not yet been forwarded to the Court of $ppeals# (he rules provide that in appeals by notice of appeal" the court loses urisdiction over the case upon the perfection of the appeals filed in due time and the e:piration of the time to appeal of the other parties#
(Sec. 9, t0ir# 7ar., Rule 41)

(he rules also provide that prior to the transmittal of the record" the court may" among others" approve compromises# (Sec. 9, fift0 7ar., Rule 41) 8*oteK +une A-" the date of the filing of the motion for approval of the Compromise $greement" appears to be a clerical error9 (emedies% A))eal% (ule 35 vs. (ule #5 (1999) a9 Distinguish a petition for certiorari as a mode of appeal from a special civil action for certiorari# 82.9 b9 >ay a party resort to certiorari when appeal is still available7 %:plain# 82.9
SUGGESTED ANSWER:

a# $ 1%()()&* '&2 2%0)%5 &* C%2()&2$2) 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 2ule <5 and is filed from a udgment or final order of the 2(C" the Sandiganbayan or the Court of $ppeals" within fifteen 8A59 days from notice of the udgment appealed from or of the denial of the motion for new trial or reconsideration filed in due time on =uestions of law only (Secs. 1 an# 2)E S1%C)$L C)0)L $C()&* '&2 C%2()&2$2) is governed by 2ule G5 and is filed to annul or modify udgments" orders or resolutions rendered or issued without or in e:cess of urisdiction or with grave abuse of discretion tantamount to lac4 or e:cess of urisdiction" when by: sirdondee@gmail.com Page 34 of 66 there is no appeal nor any plain" speedy and ade=uate remedy in the ordinary course of law" to be filed within si:ty 8G09 days from notice of the udgment" order or resolution sub ect of the petition# 8Secs# A and <#9
ADDITIONAL ANSWER:

A9 )n appeal by certiorari under 2ule <5" the petitioner and respondent are the original parties to the action and the lower court is not impleaded# )n certiorari" under 2ule G5" the lower court is impleaded# 29 )n appeal by certiorari" the filing 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 ANSWER:

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# (8c"aus v. Court of A))eals! 199 C(A 4*1.) Certiorari is sanctioned" even if appeal is available" on the basis of a patent" capricious and whimsical e:ercise of discretion by a trial udge as when an appeal will not promptly relieve petitioner from the in urious effects of the disputed order
(?asBueD vs. (obilla,Alenio! &71 C(A #7)

(emedies% ?oid 6ecision% Pro)er (emedy (&$$3)

$fter plaintiff in an ordinary civil action before the 2(CE OO has completed presentation of his evidence" defendant without prior leave of court moved for dismissal of plaintiffs complaint for insufficiency of plaintiffHs evidence# $fter due hearing of the motion and the opposition thereto" the court issued an order" reading as followsK (he Court hereby grants defendantFs motion to dismiss and accordingly orders the dismissal of plaintiffHs complaint" with the costs ta:ed against him# )t is so ordered#L )s the order of dismissal valid7 >ay plaintiff properly ta4e an appeal7 2eason# 85.9
SUGGESTED ANSWER:

(he order or decision is void because it does not state findings of fact and of law" as re=uired by Sec# A<" $rticle 0))) of the Constitution and Sec# A" 2ule -G# Being void" appeal is not available# (he proper remedy is certiorari under 2ule G5#
ANOT!ER ANSWER:

%ither certiorari or ordinary appeal may be resorted to on the ground that the udgment is void# $ppeal" in fact" may be the more e:pedient remedy#
ALTERNATI E ANSWER:

Jes# (he order of dismissal for insufficiency of the plaintiffs evidence is valid upon defendantFs motion to dismiss even without prior leave of court# (Sec. 1 of Rule 33)# Jes" plaintiff may properly ta4e an appeal because the dismissal of the complaint is a final and appealable order# ;owever" if the order of dismissal is reversed
Remedial Law Bar Examination Q & A (1997-2006)

on appeal" the plaintiff is deemed to have waived his right to present evidence# 8)d#9 )ecial Civil Action% 8<ectment (1997) &n A0 +anuary ADD0" N leased the warehouse of $ under a lease contract with a period of five years# &n 0? +une ADDG" $ filed an unlawful detainer case against N without a prior demand for N to vacate the premises# 8a9 Can N contest his e ectment on the ground that there was no prior demand for him to vacate the premises7 8b9 )n case the >unicipal (rial Court renders udgment in favor of $" is the udgment immediately e:ecutory7
SUGGESTED ANSWER:

8a9 Jes# N can contest his e ectment on the ground that there was no prior demand to vacate the premises# 8 ec. & of (ule 7$% Casilan vs.-omassi l$ C(A &#1% /esaca vs.Cuevas. 1&5 C(A 4459# 8b9 Jes" because the udgment of the >unicipal (rial Court against the defendant N is immediately e:ecutory upon motion unless an appeal has been perfected" a supersedeas bond has been filed and the periodic deposits of current rentals# )f any" as determined by the udgment will be made with the appellate court# (Sec. * of former Rule 7); Sec. 19 of new Rule 7)).
ALTERNATI E ANSWER:

8a9 Jes" N can contest his e ectment on the ground that since he continued en oying the thing leased for fifteen days after the termination of the lease on +anuary D" ADD5 with the ac=uiescence of the lessor without a notice to the contrary" there was an )>1L)%D *%5 L%$S%#
(-rt. 1.7). i!il o#e).

)ecial Civil Action% 8<ectment (199*)

)n an action for unlawful detainer in the >unicipal (rial Court 8>(C9" defendant N raised in his $nswer the defense that plaintiff $ is not the real owner of the house sub ect of the suit# N filed a counterclaim against $ for the collection of a debt of 1?0"000 plus accrued interest of 1A5"000 and attorneyFs fees of 120"000# A# )s NFs defense tenable7 ,-./ 2# Does the >(C have urisdiction over the counterclaim7 ,2./
SUGGESTED ANSWER:K

A# *o# NFs defense is not tenable if the action is filed by a lessor against a lessee# ;owever" if the right of possession of the plaintiff depends on his ownership then the defense is tenable#

2# (he counterclaim is within the urisdiction of the >unicipal (rial Court which does not e:ceed 1A00"000" because the principal demand is 1?0"000" e:clusive of interest and attorneyFs fees# (Sec. 33, 4.". 4i2. 129, as amen#e#.) ;owever" inasmuch as all actions of forcible entry and unlawful detainer are sub ect to
by: sirdondee@gmail.com Page 35 of 66 summary procedure and since the counterclaim is only

permissive" it cannot be entertained by the >unicipal Court# (Re!ise# Rule on Summar% "roce#ure.) )ecial Civil Action% .oreclosure (&$$4) $ borrowed from the Development Ban4 of the 1hilippines 8DB19 the amount of 1A million secured by the titled land of his friend B who" however" did not assume personal liability for the loan# $ defaulted and DB1 filed an action for udicial foreclosure of the real estate mortgage impleading $ and B as defendants# )n due course" the court rendered udgment directing $ to pay the outstanding account of 1A#5 million 8principal plus interest9 to the ban4# *o appeal was ta4en by $ on the Decision within the reglementary period# $ failed to pay the udgment debt within the period specified 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 DB1 for 1A#2 million# (he sale was subse=uently confirmed by the court" and the confirmation of the sale was registered with the 2egistry of Deeds on 05 +anuary 2002# &n A0 +anuary 200-" the ban4 filed an e:!parte motion with the court for the issuance of a writ of possession to oust B from the land# )t also filed a deficiency claim for 1?00"000#00 against $ and B# the deficiency claim was opposed by $ and B# 8a9 2esolve the motion for the issuance of a writ of possession# 8b9 2esolve the deficiency claim of the ban4# G.
SUGGESTED ANSWER:

8a9 )n udicial foreclosure by ban4s such as DB1" 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 8or registration of the sale9# ;owever" the purchaser at the auction sale has the right to obtain a writ of possession after the finality of the order confirming the sale# (Sec. 3 of Rule .*; Sec. 47 of R- *791. :0e ,eneral 4an3in2 +aw of 2)))). (he motion for writ of possession" however" cannot be filed e: parte# (here must be a notice of hearing# 8b9 (he deficiency claim of the ban4 may be enforced against the mortgage debtor $" but it cannot be enforced against B" the owner of the mortgaged property" who did not assume personal liability for the loan#
)ecial Civil Action% Petition for Certiorari (&$$&) (he defendant was declared in default in the 2(C for his failure to file an answer to a complaint for a sum of money# &n the basis of the plaintiffHs e: parte presentation of evidence" udgment by default was rendered against the defendant# (he default udgment was served on the defendant on &ctober A" 200A# &n &ctober A0" 200A" he files a verified motion to lift the
Remedial Law Bar Examination Q & A (1997-2006)

order of default and to set aside the udgment# )n his motion" the defendant alleged that" immediately upon receipt of the summon" he saw the plaintiff and confronted him with his receipt evidencing his payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint# (he trial court denied the defendantHs motion because it was not accompanied by an affidavit of merit# (he defendant filed a special civil action for certiorari under 2ule G5 challenging the denial order# $# )s certiorari under 2ule G5 the proper remedy7 5hy7 82.9 B# Did the trial court abuse its discretion or act without or in e:cess of its urisdiction in denying the defendantHs motion to lift the order of default udgment7 5hy7 8-.9
SUGGESTED ANSWER:

$# (he petition for certiorari under 2ule G5 filed 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 plaintiff# (he defendant cannot invo4e the receipt to prove payment of his obligation to the plaintiff#

ALTERNATI E ANSWER:

$# Under ordinary circumstances" the proper remedy of a party wrongly declared in default is either to appeal from the udgment by default or file a petition for relief from udgment# GJao!
/nc. v. Court of A))eals! &51 C(A 491 (1995)
SUGGESTED ANSWER:

B# Jes" the trial court gravely abused its discretion or acted without or in e:cess of urisdiction in denying the defendantHs motion because it was not accompanied by a separate affidavit of merit# )n his verified motion to lift the order of default and to set aside the udgment" the defendant alleged that immediately upon the receipt of the summons" he saw the plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him that he would instruct his lawyer to withdraw the complaint# Since the good defense of the defendant was already incorporated in the verified motion" there was not need for a separate affidavit of merit# GCa)uD
v. Court of A))eals! &44 C(A 371 (1993)% Mago v. Court of A))eals! 4$4 C(A #$$ (1999)E.

)ecial Civil Action% Juo Karranto (&$$1)

$ group of businessmen formed an association in Cebu City calling itself Cars C# to distribute @ 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 Solicitor 3eneral filed before a 2(C in >anila a verified petition for =uo warranto =uestioning and see4ing to stop the operations of Cars Co# (he latter filed a motion to dismiss the petition on the ground of improper venue by: sirdondee@gmail.com Page 36 of 66 claiming that its main office and operations are in Cebu City and not in >anila# )s the contention of Cars Co# correct7 5hy7 85.9
SUGGESTED ANSWER:

*o# $s e:pressly provided in the 2ules" when the Solicitor 3eneral commences the action for =uo warranto" it may be brought in a 2(C in the City of >anila" as in this case" in the Court of $ppeals or in the Supreme Court# (Sec. 7 of Rule ..) )ecial Civil Actions% Mandamus (&$$#) )n ADDG" Congress passed 2epublic $ct *o# ?A?D" otherwise 4nown as the 0oterFs 2egistration $ct of ADDG" providing for computeriCation of elections# 1ursuant thereto" the C&>%L%C approved the 0oterFs 2egistration and )dentification System 802)S9 1ro ect# )t issued invitations to pre!=ualify and bid for the pro ect# $fter the public bidding" 'oto4ina was declared the winning bidder with a bid of 1G billion and was issued a *otice of $ward# But C&>%L%C Chairman 3ener 3o ob ected to the award on the ground that under the $ppropriations $ct" the budget for the C&>%L%CFs moderniCation is only 1A billion# ;e announced to the public that the 02)S pro ect has been set aside# (wo Commissioners sided with Chairman 3o" but the ma ority voted to uphold the contract# >eanwhile" 'oto4ina filed with the 2(C a petition for mandamus compel the C&>%L%C to implement the contract# (he &ffice of the Solicitor 3eneral 8&S39" representing Chairman 3o" opposed the petition on the ground that mandamus does not lie to enforce contractual obligations# During the proceedings" the ma ority Commissioners filed a manifestation that Chairman 3o was not authoriCed by the C&>%L%C %n Banc to oppose the petition# /s a )etition for mandamus an a))ro)riate remedy to enforce contractual obligationsA (5I)
SUGGESTED ANSWER:

*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 (C0M8:8C v. Jui<ano,Padilla! 1.(.
2o. 15199&! e)tember 1*! &$$&% ec. 4! (ule #5).

ummons

Seven years after the entry of udgment" the plaintiff filed an action for its revival# Can the defendant successfully oppose the revival of the udgment by contending that it is null and void because the 2(C!>anila did not ac=uire urisdiction over his person7 5hy7 8-.9
SUGGESTED ANSWER:

(he 2(C!>anila should deny the motion because it is in violation of the rule that no udgment obligor shall be re=uired to appear before a court" for the purpose of e:amination concerning his property and
Remedial Law Bar Examination Q & A (1997-2006)

income" outside the province or city in which such obligor resides# )n this case the udgment obligor resides in Bulacan# (Rule 39, sec.3.). ummons (1999) a9 5hat is the effect of absence of summons on the udgment rendered in the case7 82.9 b9 5hen additional defendant is impleaded in the action" is it necessary that summons be served upon him7 %:plain# 82.9

c9 )s summons re=uired to be served upon a defendant who was substituted for the deceased7 %:plain# 82.9 d9 $ sued NN Corporation 8NNC9" a corporation organiCed under 1hilippine laws" for specific performance when the latter failed to deliver (!shirts to the former as stipulated in their contract of sale# Summons was served on the corporationFs cashier and director# 5ould you consider service of summons on either officer sufficient7 %:plain# 82.9
SUGGESTED ANSWER:

a9 (he effect of the absence of summons on a udgment would ma4e the udgment null and void because the court would not have urisdiction 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) b9 Jes# Summons must be served on an additional defendant impleaded in the action so that the court can ac=uire urisdiction over him" unless he ma4es a voluntary appearance# c9 *o# $ 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.) d9 Summons 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# 8)d#9 ummons% ubstituted ervice (&$$3) Summons was issued by the >> 2(C and actually received on time by defendant from his wife at their residence# (he sheriff earlier that day had delivered the summons to her at said residence because defendant was not home at the time# (he sheriffs return or proof of service filed with the court in sum states that the summons" with attached copy of the complaint" was served on defendant at his residence thru his wife" a person of suitable age and discretion then residing therein# Defendant moved to dismiss on by: sirdondee@gmail.com Page 37 of 66 the ground that the court had no urisdiction over his person as there was no valid service of summons on him because the sheriffs return or proof of service does not show that the sheriff first made a genuine attempt to serve the summons on defendant personally before serving it thru his wife# )s the motion to dismiss meritorious7 5hat is the purpose of summons and by whom may it be served7 %:plain# 85.9
SUGGESTED ANSWER:

(he motion to dismiss is not meritorious because the defendant actually received the summons on time from his wife# Service on the wife was sufficient# (Boticano v. C"u! 13* C(A 531 G19*7E). )t is the duty of the court to loo4 into the sufficiency of the service# (he sheriffs negligence in not stating in his return that he first made a genuine effort to serve the summons on the defendant" should not pre udice the plaintiff# (Ma)a v. Court of A))eals! &13 C(A 3177199&). (he purpose of the summons is to inform the defendant of the complaint filed against him and to enable the court to ac=uire urisdiction over his person# )t maybe served by the sheriff or his deputy or any person authoriCed by the court#
ALTERNATI E ANSWER:

Jes# (he motion to dismiss is meritorious# Substituted service cannot be effected unless the sheriffs return shows that he made a genuine attempt to effect personal service on the husband# ummons% ?alidity of ervice% 8ffects (&$$#)
(ina 3uerrero filed with filed the 2egional (rial Court of Binan" Laguna" a complaint for sum of money amounting to 1A >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" ointly and severally# Carlos was served with summons which was received by Linda" his secretary# ;owever" Carlos failed to file an answer to the complaint within the A5!day reglementary period# ;ence" (ina filed with the court a motion to declare Carlos in default and to allow her to present evidence e: parte# 'ive days thereafter" Carlos filed his verified answer to the complaint" denying under oath the genuineness and due e:ecution of the promissory note and contending that he has fully paid his loan with interest at A2. per annum#

1.

Kas t"e summons validly served on CarlosA (&.5I)

ALTERNATI E ANSWER:

(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 efforts have been e:erted to serve the same on Carlos and such attempt has failed despite due diligence
(Manotoc v. CA! 1.(.

2o. 14$973! August 1#! &$$#% AngPing v. CA! 1.(. 2o. 1&#937! July 15! 1999).
ALTERNATI E ANSWER:

Remedial Law Bar Examination Q & A (1997-2006)

Service of Summons on Carlos was validly served upon him if the 2eturn will show that it was done through Substituted Service because the defendant can not be served personally within a reasonable time despite diligent efforts made to serve the summons personally# Linda" the secretary of defendant Carlos" must li4ewise be shown to be a competent person in charge of defendantFs office where summons was served (Sec. 7, Rule 14). &. /f you 'ere t"e <udge! 'ill you grant -inaMs motion to declare Carlos in defaultA (&.5I)
ALTERNATI E ANSWER:

)f ) were the udge" ) will not grant (inaFs motion to declare Carlos in default because summons was not properly served and anyway" a verified answer to the complaint had already been filed# >oreover" it is better to decide a case on the merits rather than on technicality#
ALTERNATI E ANSWER:

Jes# )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# ?enue% /m)ro)er ?enue% Com)ulsory Counterclaim (199*) $" a resident of Lingayen" 1angasinan sued N" a resident of San 'ernando La Union in the 2(C 82(C9 of IueCon City for the collection of a debt of 1A million# N did not file a motion to dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense# ;e also filed a counterclaim for 1?0"000 against $ for attorneyFs fees and e:penses for litigation# N moved for a preliminary hearing on said affirmative defense# 'or his part" $ filed a motion to dismiss the counterclaim for lac4 of urisdiction# 2ule on the affirmative defense of improper venue# ,-./ 2ule on the motion to dismiss the counterclaim on the ground of lac4 of urisdiction over the sub ect matter# ,2./
SUGGESTED ANSWER:

A# (here is improper venue# (he case for a sum of money" which was filed in IueCon City" is a personal action# )t must be filed in the residence of either the plaintiff" which is in 1angasinan" or of the defendant" which is in San 'ernando" La Union. (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 ADDB 2ules of Civil 1rocedure# (he new 2ules provide that if no motion to dismiss has been filed" any of the grounds for dismissal may be pleaded as an affirmative defense in the answer#
(Sec. . of Rule 1..)

by: sirdondee@gmail.com Page 38 of 66

2# (he motion to dismiss on the ground of lac4 of urisdiction over the sub ect matter should be denied# (he counterclaim for attorneyFs fees and e:penses of litigation is a compulsory counterclaim because it necessarily arose out of and is connected with the complaint# )n an original action before the 2(C" the counterclaim may be considered compulsory regardless of the amount# (Sec. 7 of Rule .) ?enue% Personal Actions (1997) N" a resident of $ngeles City" borrowed 1-00"000#00 from $" a resident of 1asay City# )n the loan agreement" the parties stipulated that Lthe parties agree to sue and be sued in the City of >anila#L a9 )n case of non!payment of the loan" can $ file his complaint to collect the loan from N in $ngeles City7 b9 Suppose the parties did not stipulate in the loan agreement as to the venue" where can $ file his complaint against N7 c9 Suppose the parties stipulated in their loan agreement that Lvenue for all suits arising from this contract shall be the courts in IueCon City"L can $ file his complaint against N in 1asay City7
SUGGESTED ANSWER:

8a9 Jes" because the stipulation in the loan agreement that Lthe parties agree to sue and be sued in the City of >anilaL does not ma4e >anila the Le:clusive venue thereof#L (Sec, 4 of Rule
4, as amen#e# b% ircular 'o. 13 9(; Sec. 4 of new Rule 4) ;ence" $ can file his complaint in $ngeles City where he resides" (Sec, 2 of Rule 4).

8b9 )f the parties did not stipulate on the venue" $ can file his complaint either in $ngeles City where he resides or in 1asay City where N resides" 8)d9# 8c9 Jes" because the wording of the stipulation does not ma4e IueCon City the e:clusive

venue#
(P"ilbanFing v. -ensuan. &4$ 7! 1997)
ALTERNATI E ANSWER:

C(A 314% >nimasters Conglomeration! /nc. v. CA. C(,119#57! .eb.

8c9 *o# )f the parties stipulated that the venue Lshall be in the courts in IueCon CityL" $ cannot file his complaint in 1asay City because the use of the word LshallL ma4es IueCon City the e:clusive venue thereof# (@oec"st P"ili))ines vs. -orres! *4 C(A &97).

CRIMINAL PROCEDURE
AcBuittal% 8ffect (&$$&)

Delia sued 0ictor for personal in uries which she allegedly sustained when she was struc4 by a car driven by 0ictor# >ay the court receive in evidence" over proper and timely ob ection by Delia" a certified true copy of a udgment of ac=uittal in a criminal prosecution charging 0ictor with hit!and!run driving in connection with DeliaHs in uries7 5hy7 8-.9
SUGGESTED ANSWER:

Remedial Law Bar Examination Q & A (1997-2006)

)f the udgment of ac=uittal in the criminal case finds that the act or omission from which the civil liability may arise does not e:ist" the court may receive it in evidence over the ob ection by Delia# [Rule 111, sec. 2,
last 7ara2ra70].
ALTERNATI E ANSWER:

)f the udgment 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, i!il o#e). Actions% BP&&% Civil Action deemed included (&$$1) Saturnino filed a criminal action against $le: for the latterHs bouncing chec4# &n the date of the hearing after the arraignment" Saturnino manifested to the court that he is reserving his right to file a separate civil action# (he court allowed Saturnino to file a civil action separately and proceeded to hear the criminal case# $le: filed a motion for reconsideration contending that the civil action is deemed included in the criminal case# (he court reconsidered its order and ruled that Saturnino could not file a separate action# )s the courtHs order granting the motion for reconsideration correct7 5hy7 85.9
SUGGESTED ANSWER:

Jes" the courtHs order granting the motion for reconsideration is correct# (he 2ules provide that the criminal action for violation of B#1# Blg# 22 shall be deemed to include the corresponding civil action" and that no reservation to file such civil action separately shall be allowed# [Sec. 1(b), Rule 111, Re!ise# Rules of riminal
"roce#ure]

Actions% BP&&% 6emurrer to 8vidence (&$$4)

)n an action for violation of Batas 1ambansa Big# 22" the court granted the accusedHs demurrer to evidence which he filed without leave of court# $lthough 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 chec4# (he accused filed a >otion of 2econsideration regarding the order to pay the face value of the chec4 on the following groundsK a9 the demurrer to evidence applied only too the criminal aspect of the caseE and b9 at the very least" he was entitled to adduce controverting evidence on the civil liability# 2esolve the >otion for 2econsideration# 8G.9
SUGGESTED ANSWER:

8a9 (he >otion for 2econsideration 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 1ambansa Blg# 22 included the corresponding civil action# (Sec.
1(b) of Rule 111).

8b9 (he accused was not entitled to adduce controverting evidence on the civil liability" because
by: sirdondee@gmail.com Page 39 of 66 he filed his demurrer to evidence without leave of court# (Sec.
23 of Rule 119).

Actions% Commencement of an Action% 6ouble Jeo)ardy (&$$3)

S1&A C*C filed with the >(C in IueCon City 8>e(C!IC9 a sworn written statement duly subscribed by him" charging 232 8an actual resident of Cebu City9 with the offense of slight

physical in uries allegedly inflicted on S1S 8an actual resident of IueCon City9# (he +udge of the branch to which the case was raffled thereupon issued an order declaring that the case shall be governed by the 2ule on Summary 1rocedure in criminal cases# Soon thereafter" the +udge ordered the dismissal of the case for the reason that it was not commenced by information" as re=uired by said 2ule# Sometime later" based on the same facts giving rise to the slight physical in uries case" the City 1rosecutor filed with the same >e(C!IC an information for attempted homicide against the same 232# )n due time" before arraignment" 232 moved to =uash the information on the ground of double eopardy and after due hearing" the +udge granted his motion# 5as the dismissal of the complaint for slight physical in uries proper7 5as the grant of the motion to =uash the attempted homicide information correct7 2eason 85.9
SUGGESTED ANSWER:

Jes" the dismissal of the complaint for slight physical in uries is proper because in >etropolitan >anila and in chartered cities" the case has to be commenced only by information# (Sec. 11, Re!ise# Rule on Summar% "roce#ure). *o" the grant of the motion to =uash the attempted homicide information on the ground of double eopardy was not correct" because there was no valid prosecution for slight physical in uries# Actions% 6iscretionary Po'er of .iscal (1999) $ filed with the &ffice of the 'iscal a Complaint for estafa against B# $fter the preliminary investigation" the 'iscal dismissed the Complaint for lac4 of merit# >ay the 'iscal be compelled by mandamus to file the case in court7 %:plain# 82.9
SUGGESTED ANSWER:

*o# (he public prosecutor may not be compelled by mandamus to file the case in court because the determination of probable cause is within the discretion of the prosecutor# (he remedy is an appeal to the Secretary of +ustice# (Sec. 4 Rule 112.) Actions% /n<unction (1999) 5ill in unction lie to restrain the commencement of a criminal action7 %:plain# 82.9
SUGGESTED ANSWER:

$s a general rule" in unction will not lie to restrain a criminal prosecution e:ceptK
Remedial Law Bar Examination Q & A (1997-2006)

a9 (o afford ade=uate protection to the constitutional rights of the accusedE b9 5hen necessary for the orderly administration of ustice or to avoid oppression or multiplicity of actionsE c9 5hen double eopardy is clearly apparentE d9 5here the charges are manifestly false and motivated by the lust for vengeanceE e9 5here there is clearly no prima facie case against the accused and a motion to =uash on that ground has been denied#
( ee cases cited in (oberts! Jr.! vs. Court of A))eals! &53 19& C(A 1*4 G199$E.) C(A 4$7 G199#E and BrocFa v. 8nrile!

Arrest% Karrantless Arrest% Preliminary /nvestigation (&$$3)

$N swindled 2J in the amount of 1A0"000 sometime in mid!200-# &n the strength of the sworn statement given by 2J personally to S1&A +uan 2amos sometime in mid!200<" and without securing a warrant" the police officer arrested $N# 'orthwith the police officer filed with the City 1rosecutor of >anila a complaint for estafa supported by 2JLs sworn statement and other documentary evidence# $fter due in=uest" the prosecutor filed the re=uisite information with the >> 2(C# *o preliminary investigation was conducted either before or after the filing of the information and the accused at no time as4ed for such an investigation# ;owever" before arraignment" the accused moved to =uash the information on the ground that the prosecutor suffered from a want of authority to file the information because of his failure to conduct a preliminary investigation before filing the information" as re=uired by the 2ules of Court# )s the warrantless arrest of $N valid7 )s he entitled to a preliminary investigation before the filing of the information7 %:plain# 85.9
SUGGESTED ANSWER:

*o# (he warrantless arrest is not valid because the alleged offense has not ust been committed# (he crime was allegedly committed one year before the arrest# (Sec. ( (b) of Rule
113).

Jes" 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#
ALTERNATI E ANSWER:

;e is not entitled to a preliminary investigation because the penalty for estafa is the sum of 1A0"000 does not e:ceed < years and 2 months# Under Sec# A" second par#" 2ule AA2" a

preliminary investigation is not re=uired# ('ote; :0e 7enalt% is not state# in t0e <uestion.) Arrest% Karrantless Arrests ; earc"es (1997) $ was 4illed by B during a =uarrel over a hostess in a nightclub# (wo days after the incident" and upon complaint of the widow of $" the police arrested B by: sirdondee@gmail.com Page 40 of 66 without a warrant of arrest and searched his house without a search warrant# a9 Can the gun used by B in shooting $" which was seiCed during the search of the house of B" be admitted in evidence7 b9 )s the arrest of B legal7 c9 Under the circumstances" can B be convicted of homicide7
SUGGESTED ANSWER:

8a9 *o# (he gun seiCed during the search of the house of B without a search warrant is not admissible in evidence# (Secs. 2 an# 3[2], -rt. /// of onstitution). >oreover" the search was not an incident to a lawful arrest of a person under Sec# A2 of 2ule A2G# 8b9 *o# $ warrantless arrest re=uires that the crime has in fact ust been committed and the police arresting has personal 4nowledge of facts that the person to be arrested has committed it# (Sec. (, Rule 113). ;ere" the crime has not ust been committed since a period of two days had already lapsed" and the police arresting has no such personal 4nowledge because he was not present when the incident happened# (,o !s. ourt of -77eals. 2). S R- 13*). 8c9 Jes# (he gun is not indispensable in the conviction of $ because the court may rely on testimonial or other evidence#
Arrest% Karrantless Arrests ; eiDures (&$$4) )n a buy!bust operation" the police operatives arrested the accused and seiCed from him a sachet of shabu and an unlicensed firearm# (he accused was charged in two )nformations" one for violation of the PDangerous Drug $ctQ" as amended" and another for illegal possession of firearms# (he accused filed an action for recovery of the firearm in another court against the police officers with an application for the issuance of a writ of replevin# ;e alleged in his Complaint that he was a military informer who had been issued a written authority to carry said firearm# (he police officers moved to dismiss the complaint on the ground that the sub ect firearm was in custodia legis# (he court denied the motion and instead issued the writ of replevin#

8a9 5as the seiCure of the firearm valid7 8b9 5as the denial of the motion to dismiss proper7 G.
SUGGESTED ANSWER:

8a9 Jes" the seiCure of the firearm was valid because it was seiCed in the course of a valid arrest in a buy!bust operation# (Sec. 12 an# 13 of Rule 12.) $ search warrant was not necessary#
(Peo)le v. G1997E). alaDar! &## C(A #$7

8b9 (he denial of the motion to dismiss was not proper# (he court had no authority to issue the writ of replevin whether the firearm was in custodia legis
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

or not# (he motion to recover the firearm should be filed in the court where the criminal action is pending# Arrest% Karrantless Arrests% 0b<ection (&$$$) '3 was arrested without a warrant by policemen while he was wal4ing in a busy street# $fter preliminary investigation" he was charged with rape and the corresponding information was filed in the 2(C# &n arraignment" he pleaded not guilty# (rial on the merits ensued# (he court rendered udgment convicting him# &n appeal" '3 claims that the udgment is void because he was illegally arrested# )f you were the Solicitor 3eneral" counsel for the 1eople of the 1hilippines" how would you refute said claim7 85.9
SUGGESTED ANSWER:

$ny ob ection 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 udgment of conviction rendered against the accused# (Peo)le v. Cabiles! &*3 C(A 199!
G1999E)

Bail (&$$&)

D was charged with murder" a capital offense# $fter 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 DHs guilt was strong for purposes of bail# )s the ruling correct7 5hy7 8-.9
SUGGESTED ANSWER:

*o" the prosecution is only re=uired to present as much evidence as is necessary to determine whether the evidence of DHs guilt is strong for purposes of bail.(Rule 114, sec. *). Bail% A))eal (199*) )n an information charging them of >urder" policemen $" B and C were convicted of ;omicide# $ 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 $ppeals" $ applied for bail but was denied# 'inally" the Court of $ppeals rendered a decision ac=uitting $ on the ground that the evidence pointed to the *1$ as the 4illers of the victim# 5as the Court of $ppealFs denial of $Fs application for bail proper7 ,2./ Can B and C be benefited by the decision of the Court of $ppeals7 ,-./
SUGGESTED ANSWER:

A" Jes" the Court of $ppeals properly denied $Fs application for bail# (he court had the discretion to do so# $lthough $ was convicted of homicide only" since he was charged with a capital offense" on appeal by: sirdondee@gmail.com Page 41 of 66 he could be convicted of the capital offense# (0bosa vs. Court of A))eals! &## C(A &*1.)
ALTERNATI E ANSWER:

Under Circular *o# 2!D2" $ is entitled to bail because he was convicted of homicide and hence the evidence of guilt of murder is not strong#
SUGGESTED ANSWER:

2# B" who did not appeal" can be benefited by the decision of the Court of $ppeals which is favorable and applicable to him# (Sec. 11 [a]. Rule 122, Rules of riminal "roce#ure.) (he benefit will also apply to C even if his appeal is dismissed because of his escape# Bail% A))lication% ?enue (&$$&) )f an information was filed in the 2(C!>anila charging D with homicide and he was arrested in IueCon City" in what court or courts may he apply for bail7 %:plain# 8-.9
SUGGESTED ANSWER:

D may apply for bail in the 2(C!>anila where the information was filed or in the 2(C!IueCon City where he was arrested" or if no udge" thereof is available" with any metropolitan trial udge" municipal trial udge or municipal circuit trial udge therein# (Rule
114, sec. 17).

Bail% .orms of Bail (1999)

)n what forms may bail be given7 82.9


SUGGESTED ANSWER:

Bail may be given by a corporate surety" or through a property bond" cash deposit or recogniCance# Bail% Matter of (ig"t (1999) 5hen the accused is entitled as a matter of right to bail" may the Court refuse to grant him bail on the ground that there e:ists a high degree of probability that he will abscond or escape7 %:plain# 82.9
SUGGESTED ANSWER:

)f bail is a matter of right" it cannot be denied on the ground that there e:ists a high degree of probability that the accused will abscond or escape# 5hat the court can do is to increase the amount of the bail# &ne of the guidelines that the udge may use in fi:ing a reasonable amount of bail is the probability of the accused appearing in trial# Bail% Matter of (ig"t vs. Matter of 6iscretion (1999) 5hen is bail a matter of right and when is it a matter of discretion7 82.9
SUGGESTED ANSWER:

K"en Bail is a matter of rig"tC $ll persons in custody shall 8a9 before or after conviction by the metropolitan and municipal trial courts" and 8b9 before conviction by the 2(C of an offense not punishable by death" reclusion perpetua or life imprisonment" be admitted to bail as a matter of right" with sufficient sureties" or be released on recogniCance as prescribed by law or 2ule AA<# (Sec. 4,
Rule 114, Rules of ourt, as amen#e# b% ircular 'o. 12=94.) Remedial Law Bar Examination Q & A (1997-2006)

K"en bail is a matter of discretionC

Upon conviction by the 2(C of an offense not punishable by death" reclusion perpetua or life imprisonment" on application of the accused# )f the penalty of imprisonment e:ceeds si: years but not more than 20 years" bail shall be denied upon a showing by the prosecution" with notice to the accused" of the following or other similar circumstancesK (hat the accused is a recidivist" =uasi!re!cidivist or habitual delin=uent" or has committed the crime aggravated by the circumstance of reiterationE (hat the accused is found to have previously escaped from legal confinement" evaded sentence" or has violated the conditions of his bail without valid ustificationE (hat the accused committed the offense while on probation" parole" or under conditional pardonE (hat the circumstances of the accused or his case indicate the probability of flight if released on bailE or (hat there is undue ris4 that during the pendency of the appeal" the accused may commit another crime# 8Sec# A" )d#9
Bail% Matter of (ig"t vs. Matter of 6iscretion (&$$#)

5hen is bail a matter of right and when is it a matter of discretion7 85.9


SUGGESTED ANSWER:

Bail is a matter of right 8a9 before or after conviction by the inferior courtsE 8b9 before conviction by the 2(C of an offense not punishable by death" reclusion perpetua or life imprisonment#" when the evidence of guilt is not strong (Sec. 4, Rule 114, 2))) Rules of riminal
"roce#ure).

Bail is discretionaryK Upon conviction by the 2(C of an offense not punishable by death" reclusion perpetua or life imprisonment (Sec. (, Rule 114, 2))) Rules
of riminal "roce#ure).

Bail% Kitness Posting Bail (1999)

>ay the Court re=uire a witness to post bail7 %:plain your answer# 82.9
SUGGESTED ANSWER:

Jes# (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 satisfied" 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# Upon refusal to post bail" the court shall commit him to prison until he complies or is legally discharged after his testimony is ta4en# (Sec. ., Rule 119) Com)laint vs. /nformation (1999) Distinguish a Complaint from )nformation# 82.9 by: sirdondee@gmail.com Page 42 of 66
SUGGESTED ANSWER:

)n criminal procedure" a complaint is a sworn written statement charging a person with an offense" subscribed by the offended party" any peace officer or other peace officer charged with the enforcement of the law violated# (Sec. 3, Rule 11), 19*( Rules of riminal "roce#ure); while an information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court. (Sec. 4, /#.) 6emurrer to 8vidence% Contract of Carriage (&$$3) $N" a >a4ati!bound paying passenger of 1BU" a public utility bus" died instantly on board the bus on account of the fatal head wounds he sustained as a result of the strong impact of the collision between the bus and a dump truc4 that happened while the bus was still travelling on %DS$ towards >a4ati# (he foregoing facts" among others" were duly established on evidence!in!chief by the plaintiff (J" sole heir of $N" in (JHs action against the sub ect common carrier for breach of contract of carriage# $fter (J had rested his case" the common carrier filed a demurrer to evidence" contending that plaintiffHs evidence is insufficient because it did not show 8A9 that defendant was negligent and 829 that such negligence was the pro:imate cause of the collision# Should the court grant or deny defendantFs demurrer to evidence7 2eason briefly# 85.9
SUGGESTED ANSWER:

*o# (he court should not grant defendantFs demurrer to evidence because the case is for breach of contract of carriage# 1roof that the defendant was negligent and that such negligence was the pro:imate cause of the collision is not re=uired# (Articles 117$ and &&$1!
Civil Code% (MendoDa v. P"il. Airlines! /nc.! 9$ P"il. *4# G195&E% Batangas -rans)ortation Co. v. Caguimbal! && C(A171 > 9#*E% Abeto v. PA:! 115 C(A 3*9 G19*&E% AboitiD v. Court of A))eals! 1&9 C(A 95 G19*3E).

6emurrer to 8vidence% '7o :eave of Court (199*)

'acing a charge of >urder" N filed a petition for bail# (he petition was opposed by the prosecution but after hearing the court granted bail to N# &n the first scheduled hearing on the merits" the prosecution manifested that it was not adducing additional evidence and that it was resting its case# N filed a demurrer to evidence without leave of court but it was denied by the court# A# Did the court have the discretion to deny the demurrer to evidence under the circumstances mentioned above7 82.9 2# )f the answer to the preceding =uestion is in the affirmative" can N adduce evidence in his defense after the denial of his demurrer to evidence7 ,A./ -# 5ithout further proceeding and on the sole basis of the evidence of the prosecution" can the court legally convict N for >urder7 82.9
SUGGESTED ANSWER:

A# Jes# (he Court had the discretion to deny the demurrer to the evidence" because although the
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

evidence presented by the prosecution at the hearing for bail was not strong" without any evidence for the defense" it could be sufficient for conviction# 2# *o# Because he filed the demurrer to the evidence without leave# (Sec. 1(, Rule 119, Rules of riminal "roce#ure.) ;owever" the trial court should in=uire as to why the accused filed the demurrer without leave and whether his lawyer 4new that the effect of filing it without leave is to waive the presentation of the evidence for the accused# (Peo)le vs. .ores! &#9 C(A
#&.)

-# Jes# 5ithout any evidence from the accused" the prima facie evidence of the prosecution has been converted to proof beyond reasonable doubt#
ALTERNATI E ANSWER:

)f the evidence of guilt is not strong and beyond reasonable doubt then the court cannot legally convict N for murder# 6emurrer to 8vidence% '7o :eave of Court (&$$1) Carlos" the accused in a theft case" filed 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 CarlosH motion to present evidence and instead udgment on the basis of the evidence for the prosecution# 5as the court correct in preventing Carlos from presenting his evidence and rendering udgment on the basis of the evidence for the prosecution7 5hy7 85.9
SUGGESTED ANSWER:

Jes" because the demurrer to the evidence was filed without leave of court# (he 2ules provide that when the demurrer to evidence is filed without leave of court" the accused waives the right to present evidence and submits the case for udgment on the basis of the evidence for the prosecution# (Sec. 23 of Rule
119, Re!ise# Rules of riminal "roce#ure)

6emurrer to 8vidence% '7o :eave of Court (&$$3)

(he information for illegal possession of firearm filed against the accused specifically alleged that he had no license or permit to possess the caliber #<5 pistol mentioned therein# )n its evidence!in!chief" the prosecution established the fact that the sub ect firearm was lawfully seiCed by the police from the possession of the accused" that is" while the pistol was tuc4ed at his waist in plain view" without the accused being able to present any license or permit to possess the firearm# (he prosecution on such evidence rested its case and within a period of five days therefrom" the accused filed a demurrer to evidence" in sum contending that the prosecution evidence has not established the guilt of the accused beyond reasonable doubt and so prayed that he be ac=uitted of the offense charged# by: sirdondee@gmail.com Page 43 of 66 (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 udgment on the basis of the prosecution evidence# )n due time" the court rendered udgment finding the accused guilty of the offense charged beyond reasonable doubt and accordingly imposing on him the penalty prescribed therefor# )s the udgment of the trial court valid and proper7 2eason# 85.9
SUGGESTED ANSWER:

Jes# (he udgment of the trial court is valid# (he accused did not as4 for leave to file the demurrer to evidence# ;e is deemed to have waived his right to present evidence# ( ec. &4 of
(ule 119% Peo)le v. .lores! &#9 C(A #& G1997E% Bernardo v. Court of A))eals! &7* C(A 7*& G1997E. ;owever" the udgment is not proper or is erroneous because there was no showing from the proper office li4e the 'irearms %:plosive Unit of the 1hilippine *ational 1olice that the accused has a permit to own or possess the firearm" which is fatal to the conviction of the accused# (Mallari v. Court of A))eals ;Peo)le!&#5 C(A 35#G199#E).

6ismissal% .ailure to Prosecute (&$$4)

5hen a criminal case is dismissed on nolle 7rose<ui" can it later be refilled7 8<.9
SUGGESTED ANSWER:

$s a general rule" when a criminal case is dismissed on nolle 7rose<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 offense# (1alveD
v. Court of A))eals! &47 C(A #*5 G1993E).

6ismissal% Provisional 6ismissal (&$$4)

Before the arraignment for the crime of murder" the private complainant e:ecuted an $ffidavit of Desistance stating that she was not sure if the accused was the man who 4illed her husband# (he public prosecutor filed a >otion to Iuash the )nformation on the ground that with private complainantHs desistance" he did not have evidence sufficient to convict the accused# &n 02 +anuary 200A" the court without further proceedings granted the motion and provisionally dismissed the case# (he accused gave his e:press consent to the provisional dismissal of the case# (he offended party was notified of the dismissal but she refused to give her consent# Subse=uently" the private complainant urged the public prosecutor to refile the murder charge because the accused failed to pay the consideration which he had promised for the e:ecution of the $ffidavit of Desistance# (he public prosecutor obliged and refiled the murder charge against the accused on 0A 'ebruary 200-" the accused filed a >otion to Iuash the )nformation on the ground that the provisional dismissal of the case had already become permanent# 8G.9
Remedial Law Bar Examination Q & A (1997-2006)
SUGGESTED ANSWER:

a9 5as the provisional dismissal of the case proper7 b9 2esolve the >otion to Iuash# 8a9 (he provisional dismissal of the case was proper because the accused gave his e:press consent thereto and the offended party was notified# )t was not necessary for the offended party to give her consent thereto# (Sec. * of Rule 117). 8b9 (he motion to =uash the information should be denied because" while the provisional dismissal had already become permanent" the prescriptive period for filing the murder charge had not prescribed# (here was no double eopardy because the first case was dismissed before the accused had pleaded to the charge# (Sec. 7 of Rule 117).
6ouble Jeo)ardy (&$$&)

D was charged with slight physical in uries in the >(C# ;e pleaded not guilty and went to trial# $fter 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# $ 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 ne:t 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 eopardy# $cceding to this motion" the court again dismissed the case# (he prosecutor then filed an information in the 2(C" charging D with direct assault based on the same facts alleged in the information for slight physical in uries but with the added allegation that D inflicted the in uries 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 filing had placed him in double eopardy# ;ow should DHs motion to =uash be resolved7 8<.9
SUGGESTED ANSWER:

DHs motion to =uash should be granted on the ground of double eopardy because the first offense charged is necessarily included in the second offense charged# G6raculan v. 6onato!
13$ C(A 3&5 (19*5)E.
ALTERNATI E ANSWER:

DHs motion to =uash should be denied because the two dismissals of the case against him were on his motion 8hence with his e:press consent9 and his right to a speedy trial was not violated# 6ouble Jeo)ardy% >)grading% 0riginal C"arges (&$$5) 'or the multiple stab wounds sustained by the victim" *oel was charged with frustrated homicide in the 2(C# Upon arraignment" he entered a plea of guilty to said crime# *either the court nor the prosecution by: sirdondee@gmail.com Page 44 of 66 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# 5hen the prosecution learned of the victimFs death" it filed within fifteen 8A59 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 eopardy# 2esolve the motion with reasons# 8<.9
SUGGESTED ANSWER:

(he amended information to consummated homicide from frustrated homicide does not place the accused in double eopardy# $s provided in the second paragraph of Sec. 7, Rule 117,2))) Rules of riminal "roce#ure" the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information whenK 8a9 the graver offense developed due to supervening facts arising from the same act or omission constituting the former chargeE or 8b9 the facts constituting the graver charge became 4nown 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# 89tradition (&$$3) 21 and State NN have a subsisting %:tradition (reaty# 1ursuant thereto 21Fs Secretary of +ustice 8S&+9 filed a 1etition for %:tradition before the >> 2(C alleging that +uan 6wan is the sub ect of an arrest warrant duly issued by the proper criminal court of State NN in connection with a criminal case for ta: evasion and fraud before his return to 21 as a bali4bayan# 1etitioner prays that +uan be e:tradited and delivered to the proper authorities of State NN for trial" and that to prevent +uanFs flight in the interim" a warrant for his immediate arrest be issued# Before the 2(C could act on the petition for e:tradition" +uan filed before it an urgent motion" in sum praying 8A9 that So+Fs application for an arrest warrant be set for hearing and 829 that +uan be allowed to post bail in the event the court would issue an arrest warrant# Should the court grant or deny +uanFs prayers7 2eason# 85.9
SUGGESTED ANSWER:

Under the %:tradition (reaty and Law" the application of the Secretary 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 2ules of Court on arrest and bail are not basically applicable#
(1overnment of t"e >nited tates of America v. Puruganan! 4*9 Remedial Law Bar Examination Q & A (1997-2006) C(A #&4 G&$$&E)

/nformation (&$$1)

(he prosecution filed an information against +ose for slight physical in uries alleging the acts constituting the offense but without anymore alleging that it was committed after +oseHs unlawful entry in the complainantHs abode# 5as the information correctly prepared by the prosecution7 5hy7 85.9
SUGGESTED ANSWER:

*o# (he aggravating circumstance of unlawful entry in the complainantHs abode has to be specified in the informationE otherwise" it cannot be considered as aggravating# (Sec. * of Rule
11), Re!ise# Rules of "roce#ure)
ALTERNATI E ANSWER:

riminal

(he information prepared by the prosecutor is not correct because the accused should have been charged with =ualified trespass to dwelling# /nformation% Amendment (&$$1) $mando was charged with frustrated homicide# Before he entered his plea and upon the advice of his counsel" he manifested his willingness to admit having committed the offense of serious physical in uries# (he prosecution then filed an amended information for serious physical in uries against $mando# 5hat steps or action should the prosecution ta4e so that the amended information against $mando which downgrades the nature of the offense could be validly made7 5hy7 85.9

SUGGESTED ANSWER:

)n order that the amended information which downgrades the nature of the offense could be validly made" the prosecution should file a motion to as4 for leave of court with notice to the offended party# (Sec.14 of Rule 11), Re!ise# Rules of riminal "roce#ure). (he new rule is for the protection of the interest of the offended party and to prevent possible abuse by the prosecution# /nformation% Amendment% 6ouble Jeo)ardy% Bail (&$$&) $# D and % were charged with homicide in one information# Before they could be arraigned" the prosecution moved to amend the information to e:clude % therefrom# Can the court grant the motion to amend7 5hy7 82.9 B# &n the facts above stated" suppose the prosecution" instead of filing a motion to amend" moved to withdraw the information altogether and its motion was granted# Can the prosecution re!file the information although this time for murder7 %:plain 8-.9
SUGGESTED ANSWER:

$# Jes" provided notice is given to the offended party and the court states its reasons for granting the same# (Rule 11), sec. 14). by: sirdondee@gmail.com Page 45 of 66 B# Jes" the prosecution can re!file the information for murder in substitution of the information for homicide because no double eopardy has as yet attached# G1alveD v. Court of A))eals! &47
C(A #*5 (1993)E.

/nformation% Amendment%

u)ervening 8vents (1997) $ was accused of homicide for the 4illing of B# During the trial" the public prosecutor received a copy of the marriage certificate of $ and B#

8a9 Can the public prosecutor move for the amendment of the information to charge $ with the crime of parricide7 8b9 Suppose instead of moving for the amendment of the information" the public prosecutor presented in evidence the marriage certificate without ob ection on the part of the defense" could $be convicted of parricide7
SUGGESTED ANSWER:

8a9 *o# (he )nformation cannot be amended to change the offense charged from homicide to parricide# 'irstly" the marriage is not a supervening fact arising from the act constituting the charge of homicide# (Sec. 7[a] of Rule 117). Secondly" after plea" amendments may be done only as to matters of form# (he amendment is substantial because it will change the nature of the offense# ( ec. 13 of (ule 11$% 6ionaldo
us. 6acuycuy. 1$* C(A 74#).

8b9 *o# $ can be convicted only of homicide not of parricide which is a graver offense# (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) an# (2> -rt. ///. 19*7
onstitution),

/nformation% Bail (&$$4)

$fter the re=uisite proceedings" the 1rovincial 1rosecutor filed an )nformation for homicide against N# (he latter" however" timely filed a 1etition for 2eview of the 2esolution of the 1rovincial 1rosecutor with the Secretary of +ustice who" in due time" issued a 2esolution reversing the resolution of the 1rovincial 1rosecutor and directing him to withdraw the )nformation# Before the 1rovincial 1rosecutor could comply with the directive of the Secretary of +ustice" the court issued a warrant of arrest against N# (he 1ublic 1rosecutor filed a >otion to Iuash the 5arrant of $rrest and to 5ithdraw the )nformation" attaching to it the 2esolution of the Secretary of +ustice# (he court denied the motion# 8G.9 a9 5as there a legal basis for the court to deny the motion7 b9 )f you were the counsel for the accused" what remedies" if any" would you pursue7
SUGGESTED ANSWER:

Remedial Law Bar Examination Q & A (1997-2006)

a# Jes" 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 2esolution of the Secretary of +ustice# (Cres)o v.
Mogul! 151 C(A 3#& G19*7E).

b# )f ) were the counsel for the accused" ) would surrender the accused and apply for bail because the offense is merely homicide" a non!capital offense# $t the pre!trial" ) would ma4e a

stipulation of facts with the prosecution which would show that no offense was committed# /nformation% Motion to Juas" (&$$$) BC is charged with illegal possession of firearms under an )nformation signed by a 1rovincial 1rosecutor# $fter arraignment but before pre!trial" BC found out that the 1rovincial 1rosecutor had no authority to sign and file the information as it was the City 1rosecutor 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 officer signing it lac4ed the authority to do so# (he 1rovincial 1rosecutor 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 1rovincial 1rosecutor7 85.9
SUGGESTED ANSWER:

) would argue that since the 1rovincial 1rosecutor had no authority to file the information" the court did not ac=uire urisdiction over the person of the accused and over the sub ect matter of the offense charged# (Cudia v. Court of A))eals! &*3 C(A 174 G1999E). ;ence" this ground is not waived if not raised in a motion to =uash and could be raised at the pretrial# (Sec. *, Rule
117, Rules of ourt).

/nformation% Motion to Juas" (&$$5)

2odolfo is charged with possession of unlicensed firearms in an )nformation filed in the 2(C# )t was alleged therein that 2odolfo was in possession of two unlicensed firearmsK a #<5 caliber and!a #-2 caliber# Under 2epublic $ct *o# ?2D<" possession of an unlicensed #<5 caliber gun is punishable by prision mayor in its minimum period and a fine of 1-0#000#00" while possession of an unlicensed #-2 caliber gun is punishable by prision correctional in its ma:imum period and a fine of not less than 1A5"000#00# $s counsel of the accused" you intend to file a motion to =uash the )nformation# 5hat ground or grounds should you invo4e7 %:plain# 8<.9
SUGGESTED ANSWER:

(he ground for the motion to =uash is that more than one offense is charged in the information# (Sec. 3[f], Rule 117, 2))) Rules of riminal "roce#ure) Li4ewise" the 2(C has no urisdiction over the second offense of by: sirdondee@gmail.com Page 46 of 66 possession of an unlicensed #-2 caliber gun" punishable by prision correctional in its ma:imum period and a fine of not less than 1A5#000#00# )t is the >(C that has e:clusive and original urisdiction over all offenses punishable by imprisonment not e:ceeding si: years# (Sec. 2, R.-. 'o. 7.91, amen#in2 4.". 4l2.
129)

/nformation% Motion to Juas"% 1rounds (199*)

3ive two 829 grounds to =uash an )nformation#,2./ )f the )nformation is not accompanied by a certification that a preliminary investigation has been conducted# )s the )nformation void7 ,-./
SUGGESTED ANSWER:

A# (wo grounds to =uash an )nformation areK a9 (hat the facts charged do not constitute an offenseE and b9 (hat the court trying the case has no urisdiction over the offense charged or the person of the accused# c9 (hat the officer who filed the information had no authority to do soE d9 (hat it does not conform substantially to the prescribed formE e9 (hat more than one offense is charged e:cept in those cases in which e:isting laws prescribe a single punishment for various offensesE f9 (hat the criminal action or liability has been e:tinguishedE g9 (hat it contains averments which" if true" would constitute a legal e:cuse or ustificationE and h9 (hat the accused has been previously convicted or in eopardy of being convicted" or ac=uitted of the offense charged# (Sec. 3,
Rule 117. Rules of riminal "roce#ure.)
SUGGESTED ANSWER:

2# *o# (he certification which is provided in Sec# <" 2ule AA2# 2ules of Criminal 1rocedure" is not an indispensable part of the information# (Peo)le vs.
:a)ura! &55 C(A *5.)

Judgment% Promulgation of Judgment (1997)

N" the accused in a homicide case before the 2(C# Dagupan Cay" was personally notified of the promulgation of udgment in his case set for A0 December ADDG# &n said date# N 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 N to postpone the promulgation#

8a9 ;ow shall the court promulgate the udgment in the absence of the accused7 8b9 Can the trial court also order the arrest of N7

SUGGESTED ANSWER:

8a9 )n the absence of the accused" the promulgation shall be made by recording the +udgment in the
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

criminal doc4et and a copy thereof served upon the accused or counsel# (Sec. .. t0ir# 7ar., Rule
12))

8b9 *o" the trial court cannot order the arrest of N if the udgment is one of ac=uittal and" in any event" his failure to appear was with ustifiable cause since he had to attend to another criminal case against him# Jurisdiction% Com)le9 Crimes (&$$4) )n comple: crimes" how is the urisdiction of a court determined7 <.
SUGGESTED ANSWER:

)n a comple: crime" urisdiction over the whole comple: crime must be lodged with the trial court having urisdiction to impose the ma:imum and most serious penalty imposable on an offense forming part of the comple: crime# (Cuyos v. 1arcia! 1#$ C(A 4$&
G19**E).

Jurisdiction% .inality of a Judgment (&$$5)


>ariano was convicted by the 2(C for raping 0ictoria and meted the penalty of reclusion perpetua# 5hile serving sentence at the *ational 1enitentiary" >ariano and 0ictoria were married# >ariano filed a motion in said court for his release from the penitentiary on his claim that under 2epublic $ct *o# ?-5-" his marriage to 0ictoria e:tinguished 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 urisdiction over the case after its decision had become final and e:ecutory# 8B.9

a)

/s t"e filing of t"e court correctA 89)lain.

SUGGESTED ANSWER:

*o# (he court can never lose urisdiction so long as its decision has not yet been fully implemented and satisfied# 'inality of a udgment cannot operate to divest a court of its urisdiction# (he court retains an interest in seeing the proper e:ecution and implementation of its udgments" and to that e:tent" may issue such orders necessary and appropriate for these purposes# (8c"egaray v. ecretary of Justice! 1.(.
2o. 14&$5! January 19! 1999)

b) K"at remedy7remedies s"ould t"e counsel of Mariano taFe to secure "is )ro)er and most e9)editious release from t"e 2ational PenitentiaryA 89)lain.
SUGGESTED ANSWER:

(o secure the proper and most e:peditious release of >ariano from the *ational 1enitentiary" his counsel should fileK 8a9 a petition for habeas corpus for the illegal confinement of >ariano 82ule A029" or 8b9 a motion in the court which convicted him" to nullify the e:ecution of his sentence or the order of his commitment on the ground that a supervening development had occurred (Melo v. Peo)le! 1.(. 2o. :,45*$! Marc" &&! 195$) despite the finality of the udgment# by: sirdondee@gmail.com Page 47 of 66 Parties% Prosecution of 0ffenses (&$$$) Jour friend JJ" an orphan" AG years old" see4s your legal advice# She tells you that OO" her uncle" sub ected her to acts of lasciviousnessE that when she told her grandparents" they told her to ust 4eep =uiet and not to file charges against OO" their son# 'eeling very much aggrieved" she as4s you how her uncle OO can be made to answer for his crime# a9 5hat would your advice be7 %:plain# 8-.9 b9 Suppose the crime committed against JJ by her uncle OO is rape" witnessed by your mutual friend NN# But this time" JJ was prevailed upon by her grandparents not to file charges# NN as4s you if she can initiate the complaint against OO# 5ould your answer be the same7 %:plain# 82.9#
SUGGESTED ANSWER:

8a9 ) would advise the minor" an orphan of AG years of age" to file 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 riminal "roce#ure.) 8b9 Since rape is now classified as a Crime $gainst 1ersons under the $nti!2ape Law of ADDB (R- *3(3), ) would advise NN to initiate the complaint against OO#

Plea of 1uilty% to a :esser 0ffense (&$$&)

D was charged with theft of an article worth pA5"000#00# Upon being arraigned" he pleaded not guilty to the offense charged# (hereafter" before trial commenced" he as4ed the court to allow him to change his plea of not guilty to a plea of guilt but only to estafa involving 15"000#00# Can the court allow D to change his plea7 5hy7 82.9
SUGGESTED ANSWER:

*o" because a plea of guilty to a lesser offense may be allowed if the lesser offense is necessarily included in the offense charged# (Rule 11., sec. 2). %stafa involving 15"000#00 is not necessarily included in theft of an article worth 1A5"000#00 Pre<udicial Juestion (1999) 5hat is a pre udicial =uestion7 82.9
SUGGESTED ANSWER:

$ pre udicial =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.)
ANOT!ER ANSWER:

$ pre udicial =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 Juestion (&$$$) CN is charged with estafa in court for failure to remit to >> sums of money collected by him 8CN9 for >> in payment for goods purchased from >>" by
Remedial Law Bar Examination Q & A (1997-2006)

depositing the amounts in his 8CNHs9 personal ban4 account# CN files a motion to suspend proceedings pending resolution of a civil case earlier filed in court by CN against >> for accounting and damages involving the amounts sub ect of the criminal case# $s the prosecutor in the criminal case" briefly discuss your grounds in support of your opposition to the motion to suspend proceedings# 85.9#
SUGGESTED ANSWER:

$s the prosecutor" ) will argue that the motion to suspend is not in order for the following reasonsK (he civil case filed by CN 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# (he resolution of the issue in the civil case for accounting will not determine whether or not the criminal action for estafa may proceed# (Sec. (, Rule
111, Rules of riminal "roce#ure.)

Pre<udicial Juestion%

us)ension of Criminal Action (1999) $ allegedly sold to B a parcel of land which $ later also sold to N# B brought a civil action for nullification of the second sale and as4ed that the sale made by $ in his favor be declared valid# $ theoriCed that he never sold the property to B and his purported signatures appearing in the first deed of sale were forgeries# (hereafter" an )nformation for estafa was filed against $ based on the same double sale that was the sub ect of the civil action# $ filed a L>otion for Suspension of $ctionL 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 order7 %:plain# 82.9
SUGGESTED ANSWER:

Jes# (he suspension of the criminal action is in order because the defense of $ in the civil action" that he never sold the property to B and that his purported signatures in the first deed of sale were forgeries" is a pre udicial =uestion the resolution of which is determinative of his guilt or innocence# )f the first sale is null and void" there would be no double sale and $ would be innocent of the offense of estafa#
((as v. (asul! 1$$ C(A 1&5.)

Pre,-rial Agreement (&$$3)

>ayor (> was charged of malversation through falsification of official documents# $ssisted by $tty# &1 as counsel de parte during pre!trial" he signed together with &mbudsman 1rosecutor (3 a L+oint Stipulation of 'acts and Documents"L which was presented to the Sandiganbayan# Before the court could issue a pre!trial order but after some delay caused by $tty# &1" he was substituted by $tty# I2 as defense counsel# $tty# I2 forthwith filed a motion to withdraw the L+oint Stipulation"L alleging that it is pre udicial to the accused because it contains" inter by: sirdondee@gmail.com Page 48 of 66 alia" the statement that the LDefense admitted all the documentary evidence of the 1rosecution"L thus leaving the accused little or no room to

defend himself" and violating his right against self!incrimination# Should the court grant or deny I2Fs motion7 2eason# 85.9
SUGGESTED ANSWER:

(he court should deny I2Fs motion# )f in the pretrial 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 file a motion to withdraw# $ pre!trial order is not needed# (Bayas v. andiganbayan! 491 C(A 315(&$$&O). (he admission of such documentary evidence is allowed by the rule#
( ec. & of (ule 11*% Peo)le v. @ernandeD! &#$ C(A &5 G199#E).

Pre,-rial% Criminal Case vs. Civil Case (1997)

3ive three distinctions between a pre!trial in a criminal case and a pre!trial in a civil case#
SUGGESTED ANSWER:

(hree distinctions between a pre!trial in a criminal case and a pre!trial in a civil case are as followsK 1. (he pre!trial in a criminal case is conducted only Lwhere the accused and counsel agreeL (Rule 11*, Sec. 1)K while the pre!trial in a civil case is mandatory# (Sec. 1 of former Rule 2);
Sec, 1 of new Rule 1*).

2# (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*). 3. )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)E 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 6ismissal (&$$&)

)n a prosecution for robbery against D" the prosecutor moved for the postponement of the first scheduled hearing on the ground that he had lost his records of the case# (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 DHs counsel does not ob ect" may the court grant the motion of the prosecutor7 5hy7 8-.9
SUGGESTED ANSWER:

*o" because a case cannot be provisionally dismissed e:cept upon the e:press consent of the accused and with notice to the offended party# (Rule 117, sec. *). (emedies% ?oid Judgment (&$$3) $N was charged before the JJ 2(C with theft of ewelry valued at 120#000" punishable with
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

imprisonment of up to A0 years of prision mayor under the 2evised 1enal Code# $fter trial" he was convicted of the offense charged" notwithstanding that the material facts duly established during the trial showed that the offense committed was estafa" punishable by imprisonment of up to eight years of prision mayor under the said Code# *o appeal having been ta4en therefrom" said udgment of conviction became final# )s the udgment of conviction valid7 )s the said udgment reviewable thru a special civil action for certiorari7 2eason# 85.9
SUGGESTED ANSWER:

Jes" the udgment of conviction for theft upon an information for theft is valid because the court had urisdiction to render udgment# ;owever" the udgment was grossly and blatantly erroneous# (he variance between the evidence and the udgment of conviction is substantial since the evidence is one for estafa while the udgment is one for theft# (he elements of the two crimes are not the same# (:auro antos v. Peo)le! 1*1 C(A 3*7)# &ne offense does not necessarily include or is included in the other# (Sec. ( of
Rule 12)).

(he udgment of conviction is reviewable by certiorari even if no appeal had been ta4en" because the udge committed a grave abuse of discretion tantamount to lac4 or e:cess of his urisdiction 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 ma4e the udgment void# 5ith the mista4e in charging the proper offense" the udge should have directed the filing of the proper information and thereafter dismissed the original information#
(Sec. 19 of Rule 119).

earc" Karrant% Motion to Juas" (&$$5) 1olice operatives of the 5estern 1olice District" 1hilippine *ational 1olice" applied for a search warrant in the 2(C for the search of the house of +uan Santos and the seiCure of an

undetermined amount of shabu# (he team arrived at the house of Santos but failed to find him there# )nstead" the team found 2oberto Co# (he team conducted a search in the house of Santos in the presence of 2oberto Co and barangay officials and found ten 8A09 grams of shabu# 2oberto Co was charged in court with illegal possession of ten grams of shabu# Before his arraignment" 2oberto Co filed a motion to =uash the warrant on the following grounds 8a9 it was not the accused named in the search warrantE and 8b9 the warrant does not describe the article to be seiCed with sufficient particularity# 2esolve the motion with reasons# 8<.9
SUGGESTED ANSWER:

(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 by: sirdondee@gmail.com Page 49 of 66 implicated (Mantaring v. (oman! A.M. 2o. (-J,94,9$3! .ebruary &*! 199#)! 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 sufficiently particular# (Peo)le v. -ee! 1.(.
2os. 13$53#,37! January &$! &$$4)

-rial% -rial in Absentia% Automatic (evie' of Conviction (199*)

5hat are the re=uisites of a trial in absentia7 ,2./ )f an accused who was sentenced to death escapes" is there still a legal necessity for the Supreme Court to review the decision of conviction7 ,-./
SUGGESTED ANSWER:

A# (he re=uisites of trial in absentia areK 8a9 the accused has already been arraignedE 8b9 he has been duly notified of the trialE and 8c9 his failure to appear is un ustifiable# ( ec. 13 G&E!
Article ///. Constitution% Parada vs. ?eneracion! &#9 C(A 471 G1997E.)

2# Jes" there is still a legal necessity for the Supreme Court (as of 2))4 t0e ourt of -77eals 0as t0e ?uris#iction to suc0 re!iew) to review the decision of conviction sentencing the accused to death" because he is entitled to an automatic review of the death sentence# ( ees.
4GeE and 1$! (ule 1&&! (ules of Criminal Procedure% Peo)le vs. 8s)argas! &#$ C(A 549.)

?enue (1997)

5here is the proper venue for the filing of an information in the following cases7 a9 (he theft of a car in 1asig City which was brought to &bando" Bulacan" where it was cannibaliCed# b9 (he theft by N" a bill collector of $BC Company" with main offices in >a4ati City" of his collections from customers in (agaytay City# )n the contract of employment" N was detailed to the Calamba branch office" Laguna" where he was to turn in his collections# c9 (he malversation of public funds by a 1hilippine consul detailed in the 1hilippine %mbassy in London#
SUGGESTED ANSWER:

8a9 (he proper venue is in 1asig City where the theft of the car was committed" not in &bando where it was cannibaliCed# (heft is not a continuing offense#
(Peo)le v Mercado! #5 P"il ##5).

8b9 )f the crime charged is theft" the venue is in Calamba where he did not turn in his collections# )f the crime of N is estafa" the essential ingredients of the offense too4 place in (agaytay City where he received his collections" in Calamba where he should have turned in his collections" and in >a4ati City where the $BC Company was based# (he information may therefore be filed in (agaytay City or Calamba or >a4ati which have concurrent territorial +urisdiction# (Catingub vs. Court of A))eals!
1&1 C(A 1$#). Remedial Law Bar Examination Q & A (1997-2006)

8c9 (he proper court is the Sandiganbayan which has urisdiction over crimes committed by a consul or higher official in the diplomatic service# ( ec. 3(c). P6 1#$#! as amended by (A. 2o. 7975). (he Sandiganbayan is a national court# (2uneD v. andiganbayan! 111 C(A 344 G19*&E. )t has only one venue at present" which is in >etro >anila" until 2$# *o# BDB5" providing for two other branches in Cebu and in Cagayan de &ro" is implemented#
A"#$%&'#()$ A&*+$%*:

8b9 (he information may be filed either in Calamba or in >a4ati City" not in (agaytay City where no offense had as yet been committed" 8c9 $ssuming that the Sandiganbayan has no urisdiction" the proper venue is the first 2(C in which the charge is filed (Sec. 1((#). Rule 11)).

EVIDENCE

Admissibility (199*)

(he barangay captain reported to the police that N was illegally 4eeping in his house in the barangay an $rmalite >AG rifle# &n the strength of that information" the police conducted a search of the house of N and indeed found said rifle# (he police raiders seiCed the rifle and brought N to the police station# During the investigation" he voluntarily signed a Sworn Statement that he was possessing said rifle without license or authority to possess" and a 5aiver of 2ight to Counsel# During the trial of N for illegal possession of firearm" the prosecution submitted in evidence the rifle# Sworn Statement and 5aiver of 2ight to Counsel" individually rule on the admissibility in evidence of theK A# 2ifleE ,2./ 2# Sworn StatementE and ,2.A -# 5aiver of 2ight to Counsel of N# ,A./
SUGGESTED ANSWER:

A# (he rifle is not admissible in evidence because it was seiCed without a proper search warrant# $ warrantless search is not ustified# (here was time to secure a search warrant#
(Peo le us. 9ncinada 3.1. Bo. 11+7'(E *ctober '. 1997 and ot,er cases)

2# (he sworn statement is not admissible in evidence because it was ta4en 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# (Peo le 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# (Peo le us. 3omeCE '7( SC1A =...)
Admissibility (&$$&) by: sirdondee@gmail.com Page 50 of 66 $cting on a tip by an informant" police officers stopped a car

being driven by D and ordered him to open the trun4# (he officers found a bag containing several 4ilos of cocaine# (hey seiCed the car and the cocaine as evidence and placed D under arrest# 5ithout 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" P) donHt 4now anything about it# )t isnHt even my car#Q D was charged with illegal possession of cocaine" a prohibited drug# Upon motion of D" the court suppressed the use of cocaine as evidence and dismissed the charges against him# D commenced proceedings against the police for the recovery of his car# )n his direct e:amination" D testified that he owned the car but had registered it in the name of a friend for convenience# &n cross!e:amination" the attorney representing the police as4ed" P$fter your arrest" did you not tell the arresting officers that it wasnHt your car7Q )f you were DHs attorney" would you ob ect to the =uestion7 5hy7 85.9
SUGGESTED ANSWER:

Jes" 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 '" Peo le v. :a,inayE .(' SC1A =77G.
ALTERNATI E ANSWER:

Jes" because the =uestion did not lay the predicate to ustify the cross!e:amination =uestion# Admissibility (&$$3) Sgt# 32 of 51D arrested two *1$ suspects" >a: and Bri:" both aged 22" in the act of robbing a grocery in %rmita# $s he handcuffed them he noted a pistol tuc4ed in >a:Fs waist and a dagger hidden under Bri:Fs shirt" which he promptly confiscated# $t the police investigation room" >a: and Bri: orally waived their right to counsel and to remain silent# (hen under oath" they freely answered =uestions as4ed by the police des4 officer# (hereafter they signed their sworn statements before the police captain" a lawyer# >a: admitted his part in the robbery" his possession of a pistol and his ownership of the pac4et of shabu found in his poc4et# Bri: admitted his role in the robbery and his possession of a dagger# But they denied being *1$ hit

men# )n due course" proper charges were filed by the City 1rosecutor against both arrestees before the >> 2(C# >ay the written statements signed and sworn to by >a: and Bri: be admitted by the trial court as evidence for the prosecution7 2eason# 85.9
SUGGESTED ANSWER:

*o# (he sworn written statements of >a: and Bri: may not be admitted in evidence" because they were not assisted by counsel# %ven if the police captain
Remedial Law Bar Examination Q & A (1997-2006)

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# 5aiver of the right to a lawyer must be done in writing and in the presence of independent counsel# (Peo le v. :a,inayE .(' SC1A =77
11999G" Peo le v. 9s irituE .(' SC1A 7.. F1999G).

Admissibility% Admission of 1uilt% (eBuirements (&$$#)

5hat are the re=uirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence7 82#5.9
SUGGESTED ANSWER:

(he admission must be voluntary# (he admission must be in writing# (he admission must be made with the assistance of competent" independent counsel# <# (he admission must be e:press (Peo)le v. Prinsi)e! 1.(. 2o. 145*#&! May &! &$$&). 5# )n case the accused waives his rights to silence and to counsel" such waiver must be in writing" e:ecuted with the assistance of competent" independent counsel# Admissibility% 6ocument% 2ot raised in t"e Pleading (&$$3) )n a complaint for a sum of money filed before the >> 2(C" plaintiff did not mention or even ust hint at any demand for payment made on defendant before commencing suit# During the trial" plaintiff duly offered %:h# L$L in evidence for the stated purpose of proving the ma4ing of e:tra udicial demand on defendant to pay 1500#000" the sub ect of the suit# %:h# L$L was a letter of demand for defendant to pay said sum of money within A0 days from receipt" addressed to and served on defendant some two months before suit was begun# 5ithout ob ection from defendant" the court admitted %:h# L$L in evidence# 5as the courtFs admission of %:h# L$L in evidence erroneous or not7 2eason# 85.9
SUGGESTED ANSWER:

(he courtFs admission of %:h# L$L in evidence is not erroneous# )t was admitted in evidence without ob ection 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 affect the result of the trial on this issue# (Sec. ( of Rule
1)).

Admissibility% 8lectronic 8vidence (&$$4)

a9 State the rule on the admissibility of an electronic evidence# b9 5hen is an electronic evidence regarded as being the e=uivalent of an original document under the Best %vidence 2ule7 <.
SUGGESTED ANSWER:

8a9 5henever a rule of evidence refers to the term writing" document" record" instrument" memorandum or any other form of writing" such term shall be by: sirdondee@gmail.com Page 51 of 66 deemed to include an electronic document as defined in these 2ules# (Sec. 1 of Rule 3, Rules of 8lectronic 8!i#ence effecti!e -u2ust 1, 2))1). $n electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the 2ules of Court and related laws and is authenticated in the manner prescribed by these 2ules# (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 (, /#.).

8b9 $n electronic document shall be regarded as the e=uivalent of an original document under the Best %vidence 2ule if it is a printout or output readable by sight or other means" shown to reflect the data accurately# (Sec. 1 of Rule 4) Admissibility% 0b<ect or (eal 8vidence (1993) $t the trial of $ce for violation of the Dangerous Drugs $ct" the prosecution offers in evidence a photocopy of the mar4ed 1A00#00 bills used in the Pbuy!bustQ operation# $ce ob ects to the introduction of the photocopy on the ground that the Best %vidence 2ule prohibits the introduction of secondary evidence in lieu of the original# a9 )s the photocopy real 8ob ect9 evidence or

documentary evidence7 b9 )s the photocopy admissible in evidence7


SUGGESTED ANSWER:

a9 (he photocopy of the mar4ed bills is real 8ob ect9 evidence not documentary evidence" because the mar4ed bills are real evidence# b9 Jes" the photocopy is admissible in evidence" because the best evidence rule does not apply to ob ect or real evidence# Admissibility% 0b<ections (1997) 5hat are the two 4inds of ob ections7 %:plain each briefly# 3iven an e:ample of each#
SUGGESTED ANSWER:

(wo 4inds of ob ections areK 8A9 the evidence being presented is not relevant to the issueE and 829 the evidence is incompetent or e:cluded by the law or the rules" (Sec. 3, Rule 13*). $n e:ample of the first is when the prosecution offers as evidence the alleged offer of an )nsurance company to pay for the damages suffered by the victim in a homicide case# (See 1997 'o. 14). %:amples of the second are evidence obtained in violation of the Constitutional prohibition against unreasonable searches and seiCures and confessions and admissions in violation of the rights of a person under custodial )nvestigation#
ALTERNATI E ANSWERS:

Remedial Law Bar Examination Q & A (1997-2006)

A9 Specific ob ectionsK %:ampleK parol evidence and best evidence rule 3eneral &b ectionsK %:ampleK continuing ob ections 8Sec# -B of 2ule A-29# 29 (he two 4inds of ob ections areK 8A9 ob ection to a =uestion propounded in the course of the oral e:amination of the witness and 829 ob ection to an offer of evidence in writing# &b ection to a =uestion propounded in the course of the oral e:amination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent otherwise" it is waived# $n offer of ob ection in writing shall be made within three 8-9 days after notice of the offer" unless a different period is allowed by the court# )n both instances the grounds for ob ection must be specified# $n e:ample of the first is when the witness is being cross!e:amined and the cross e:amination is on a matter not relevant# $n e:ample of the second is that the evidence offered is not the best evidence# Admissibility% 0ffer to Marry% Circumstantial 8vidence (199*) $ was accused of having raped N# 2ule on the admissibility of the following pieces of evidenceK an offer of $ to marry NE and 8-./ a pair of short pants allegedly left by $ at the crime which the court" over the ob ection of $" re=uired him to put on" and when he did" it fit him well# ,2./
SUGGESTED ANSWER:

A# $Fs offer to marry N is admissible in evidence as an )mplied admission of guilt because rape cases are not allowed to be compromised# ( ec. &7 of (ule 140%
Peo)le vs. 6omingo! &&# C(A 15#.)

2# (he pair of short pants" which fit the accused well" is circumstantial evidence of his guilt" although standing alone it cannot be the basis of conviction# (he accused cannot ob ect 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% 0ffer to Pay 89)enses (1997) $" while driving his car" ran over B# $ visited B at the hospital and offered to pay for his hospitaliCation e:penses# $fter the filing of the criminal case against $ for serious physical in uries through rec4less imprudence# $Fs insurance carrier offered to pay for the in uries and damages suffered by B# (he offer was re ected because B considered the amount offered as inade=uate# a9 )s the offer by $ to pay the hospitaliCation e:penses of B admissible in evidence7 b9 )s the offer by $Fs insurance carrier to pay for the in uries and damages of B admissible in evidence7 by: sirdondee@gmail.com Page 52 of 66
SUGGESTED ANSWER:

8a9 (he offer by $ to pay the hospitaliCation e:penses of B is not admissible in evidence to prove his guilt in both the civil and criminal cases# (Rule 13),
Sec. 27, fourt0 7ar.).

8b9 *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 offered by the accused but by the insurance company which is not his agent# Admissibility% Private 6ocument (&$$5)

>ay a private document be offered" and admitted in evidence both as documentary evidence and as ob ect evidence7 %:plain#
SUGGESTED ANSWER:

Jes" it can be considered as both documentary and ob ect evidence# $ private document may be offered and admitted in evidence both as documentary evidence and as ob ect evidence# $ document can also be considered as an ob ect for purposes of the case# &b ects as evidence are those addressed to the senses of the court# (Sec. 1, Rule 13), Rules of ourt) Documentary evidence consists of writings or any material containing letters" words" numbers" figures" symbols or other modes of written e:pressions" offered ns proof of their contents# 8Sec. 2, Rule 13), Rules of ourt) ;ence" a private document may be presented as ob ect evidence in order to Festablish certain physical evidence or characteristics that are visible on the paper and writings that comprise the document# Admissibility% Proof of .iliation% Action of Partition (&$$$) Linda and spouses $rnulfo and 2egina Ceres were co!owners of a parcel of land# Linda died intestate and without any issue# (en 8A09 persons headed by +ocelyn" claiming to be the collateral relatives of the deceased Linda" filed an action for partition with the 2(C praying for the segregation of LindaHs T share" submitting in support of their petition the baptismal certificates of seven of the petitioners" a family bible belonging to Linda in which the names of the petitioners have been entered" a photocopy of the birth certificate of +ocelyn" and a certification of the local civil registrar that its office had been completely raCed by fire# (he spouses Ceres refused to partition on the following groundsK A9 the baptismal certificates of the parish priest are evidence only of the administration of the sacrament of baptism and they do not prove filiation of the alleged collateral relatives of the deceasedE 29 entry in the family bible is hearsayE -9 the certification of the registrar on non!availability of the records of birth does not prove filiationK <9 in partition cases where filiation to the deceased is in dispute" prior and separate udicial declaration of heirship in a settlement of estate proceedings is necessaryE and 59 there is need for publication as real
Remedial Law Bar Examination Q & A (1997-2006)

property is involved# $s counsel for +ocelyn and her co!petitioners" argue against the ob ections of the spouses Ceres so as to convince the court to allow the partition# Discuss each of the five 859 arguments briefly but completely# 8A0.9
SUGGESTED ANSWER:

8A9 (he baptismal certificate can show filiation or prove pedigree# )t is one of the other means allowed under the 2ules of Court and special laws to show pedigree# (-rinidad v. Court of
A))eals! &*9 C(A 1** G199*E% @eirs of /:gnacio Conti v. Court of A))eals! 4$$ C(A 435 G199*E).

829 %ntries in the family bible may be received as evidence of pedigree# ( ec. 3$! (ule 14$! (ules of Court). 8-9 (he certification by the civil registrar of the non!availability of records is needed to ustify the presentation of secondary evidence" which is the photocopy of the birth certificate of +ocelyn# (@eirs of
/gnacio Conti v. Court of A))eals! su)ra.)

8<9 Declaration of heirship in a settlement proceeding is not necessary# )t can be made in the ordinary action for partition wherein the heirs are e:ercising the right pertaining to the decedent" their predecessor!ininterest" to as4 for partition as co!owners 8)d#9 859 %ven if real property is involved" no publication is necessary" because what is sought is the mere segregation of LindaHs share in the property# (Sec. 1 of
Rule .9; /#.)

Admissibility% (ules of 8vidence (1997)

3ive the reasons underlying the adoption of the following rules of evidenceK 8a9 Dead >an 2ule 8b9 1arol %vidence 2ule 8c9 Best %vidence 2ule 8d9 (he rule against the admission of illegally obtained e:tra udicial confession

8e9 (he rule against the admission of an offer of compromise in civil cases
SUGGESTED ANSWER:

(he reasons behind the following rules are as followsK 8a9 68A6 MA2 (>:8K if death has closed the lips of one party" the policy of the law is to close the lips of the other# (1oni v. Court ofA))eals! :,77343. e)tember &4! 19*#! 133 C(A &&&). (his is to prevent the temptation to per ury because death has already sealed the lips of the party# 8b9 PA(0: 8?/682C8 (>:8K )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 fleeting memory only# ($rancisco, Rules of ourt @ol. @//, "art /. 7. 1(4)
by: sirdondee@gmail.com Page 53 of 66

8c9 B8 - 8?/682C8 (>:8K (his 2ule is adopted for the prevention of fraud and is declared to be essential to the pure administration of ustice# (9oran, @ol. (, 7. 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# ($rancisco. Rules of ourt, !ol. @//. "art /,
77, 121,122)

8d9 $n illegally obtained e:tra udicial confession nullifies the intrinsic validity of the confession and renders it unreliable as evidence of the truth# (9oran, !ol. (, 7. 2(7) it is the fruit of a poisonous tree# 8e9 (he reason for the rule against the admission of an offer 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, i!il o#e). During pre!trial" courts should direct the parties to consider the possibility of an amicable settlement# (Sec. 1[a] of
former Rule 2); Sec. 2 [a] of new Rule 1.).

Best 8vidence (ule (1997)

5hen $ loaned a sum of money to B# $ typed a single copy of the promissory note" which they both signed $ made two photo 8:ero:ed9 copies of the promissory note" giving one copy to B and retaining the other copy# $ entrusted the typewritten copy to his counsel for safe4eeping# (he copy with $Fs counsel was destroyed when the law office was burned# a9 )n an action to collect on the promissory note" which is deemed to be the LoriginalL copy for the purpose of the LBest %vidence 2uleL7 b9 Can the photocopies in the hands of the parties be considered Lduplicate original copiesL7 c9 $s counsel for $" how will you prove the loan given to $ and B7
SUGGESTED ANSWER:

8a9 (he copy that was signed and lost is the only LoriginalL copy for purposes of the Best %vidence 2ule# (Sec. 4 [b] of Rule 13)). 8b9 *o" (hey are not duplicate original copies because there are photocopies which were not signed 8:a,ilum v. Court of A ealsE 17 SC1A =!'9" (hey constitute secondary evidence# (Sec. (
of Rule 13)).

8c9 (he loan given by $ to B may be proved by secondary evidence through the :ero:ed copies of the promissory note# (he rules provide that when the original document is lost or destroyed" or cannot be produced in court" the offerer" upon proof of its e:ecution or e:istence 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
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) Version 1997-2006

testimony of witnesses in the order stated# (Sec. ( of Rule 13)). Burden of Proof vs. Burden of 8vidence (&$$3) Distinguish Burden of proof and burden of evidence#
SUGGESTED ANSWER:

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 8vidence (&$$&) D was prosecuted for homicide for allegedly beating up 0 to death with an iron pipe# $# >ay the prosecution introduce evidence that 0 had a good reputation for peacefulness and nonviolence7 5hy7 82.9 B# >ay D introduce evidence of specific violent acts by 07 5hy7 8-.9
SUGGESTED ANSWER:

$# (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 offense charged# [Rule 13), sec. (1 a (3)]. )n this case" the evidence is not relevant# B# Jes" D may introduce evidence of specific violent acts by 0# %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 timeE but it may be received to prove a specific intent or 4nowledge" identity" plan" system" scheme" habit" custom or usage" and the li4e# (Rule 13), sec. 34). Confession% Affidavit of (ecantation (199*) )f the accused on the witness stand repeats his earlier uncounseled e:tra udicial confession implicating his co!accused in the crime charged" is that testimony admissible in evidence against the latter7 ,-./ 5hat is the probative value of a witnessF $ffidavit of 2ecantation7 ,2./
SUGGESTED ANSWER:

Jes# (he accused can testify by repeating his earlier uncounseled e:tra udicial confession" because he can be sub ected to cross!e:amination# &n the probative value of an affidavit of recantation" courts loo4 with disfavor upon recantations because they can easily be secured from witnesses" usually through intimidation or for a monetary consideration" 2ecanted testimony is e:ceedingly unreliable# (here is always the probability
by: sirdondee@gmail.com Page 54 of 66 that it will be repudiated# (:olina vs. Peo le. '79 SC1A 1.!.) .acts% :egislative .acts vs. Ad<udicative .acts (&$$3)

Legislative facts and ad udicative facts#


SUGGESTED ANSWER:

Legislative facts refer to facts mentioned in a statute or in an e:planatory note" while ad udicative facts are facts found in a court decision# @earsay 8vidence (&$$&) 2omeo is sued for damages for in uries suffered by the plaintiff in a vehicular accident# +ulieta" a witness in court" testifies that 2omeo told her 8+ulieta9 that he 82omeo9 heard $ntonio" a witness to the accident" give an e:cited account of the accident immediately after its occurrence# )s +ulietaHs testimony admissible against 2omeo over proper and timely ob ection7 5hy7 85.9
SUGGESTED ANSWER:

*o" +ulietaHs testimony is not admissible against 2omeo" because while the e:cited account of $ntonio" a witness to the accident" was told to 2omeo" it was only 2omeo who told +ulieta about it" which ma4es it hearsay# @earsay 8vidence vs. 0)inion 8vidence (&$$3) ;earsay evidence and opinion evidence#
SUGGESTED ANSWER:

;earsay evidence consists of testimony that is not based on personal 4nowledge of the person testifying" (see Sec. 3., Rule 13)), while opinion evidence is e:pert evidence based on the personal 4nowledge s4ill" e:perience or training of the person testifying (Sec. 49, /#.) and evidence of an ordinary witness on limited matters (Sec. (), /#.). @earsay% 89ce)tion% 6ead Man tatute (&$$1) >a:imo filed an action against 1edro" the administrator of the estate of deceased +uan" for the recovery of a car which is part of the latterHs estate# During the trial" >a:imo presented witness >ariano who testified that he was present when >a:imo and +uan agreed that the latter would pay a rental of 120"000#00 for the use of >a:imoHs car for one month after which +uan should immediately return the car to >a:imo# 1edro ob ected to the admission of >arianoHs testimony# )f you were the udge" would you sustain 1edroHs ob ection7 5hy7 85.9
SUGGESTED ANSWER:

*o" the testimony is admissible in evidence because witness >ariano who testified as to what >a:imo and +uan" the deceased person agreed upon" is not dis=ualified to testify on the agreement# (hose dis=ualified are parties or assignors of parties to a case" or persons in whose behalf a case is prosecuted" against the administrator or +uanHs estate" upon a
Remedial Law Bar Examination Q & A (1997-2006)

claim or demand against his estate as to any matter of fact occurring before +uanHs death# (Sec. 23 of Rule 13)) @earsay% 89ce)tion% 6ying 6eclaration (199*) 2e=uisites of Dying Declaration# ,2.9
SUGGESTED ANSWER:

(he re=uisites for the admissibility of a dying declaration areK 8a9 the declaration is made by the deceased under the consciousness of his impending deathE 8b9 the deceased was at the time competent as a witnessE 8c9 the declaration concerns the cause and surrounding circumstances of the declarantFs deathE and 8d9 the declaration is offered in a 8criminal9 case wherein the declarantFs death is the sub ect of in=uiry#
(Peo)le vs. antos! &7$ C(A #5$.)
ALTERNATI E ANSWER:

(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 sub ect of )n=uiry" as evidence of the cause and surrounding circumstances of such death# (Sec. 37 of Rule 13A.) @earsay% 89ce)tion% (es 1estae% 0)inion of 0rdinary Kitness (&$$5)
Dencio barged into the house of >arcela" tied her to a chair and robbed her of assorted pieces of ewelry and money# Dencio then brought Candida" >arcelaFs maid" to a bedroom where he raped her# >arcela could hear Candida crying and pleadingK L;uwagU >aawa 4a sa a4inUL $fter raping Candida" Dencio fled from the house with the loot# Candida then untied >arcela and rushed to the police station about a 4ilometer away and told 1olice &fficer 2oberto >aawa that Dencio had barged into the house of >arcela" tied the latter to a chair and robbed her of her ewelry and money# Candida also related to the police officer 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# 8?.9
a) /f t"e )rosecution )resents Police 0fficer (oberto Maa'a to testify on '"at Candida "ad told "im! 'ould suc" testimony of t"e )oliceman be "earsayA 89)lain.
SUGGESTED ANSWER:

*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 officer testified of his own personal 4nowledge" not to the truth of CandidaFs statement" i#e#" that she told him" despite her pleas" Dencio had raped her# (Peo)le v. 1addi!1.(.
2o. 73$#5! .ebruary &7!19*9) b) /f t"e )olice officer 'ill testify t"at "e noticed Candida to be "ysterical and on t"e verge of colla)se! 'ould suc" testimony be considered as o)inion! "ence! inadmissibleA 89)lain.
SUGGESTED ANSWER:

*o" it cannot be considered as opinion" because he was testifying on what he actually observed# (he last paragraph of Sec# 50" 2ule A-0" 2evised 2ules of by: sirdondee@gmail.com Page 55 of 66 %vidence" e:pressly provides that a witness may testify on his impressions of the emotion" behavior" condition or appearance of a person# @earsay% 89ce)tions (1999) a9 Define hearsay evidence7 82.9 b9 5hat are the e:ceptions to the hearsay rule7 82.9
SUGGESTED ANSWER:

;earsay evidence may be defined as evidence that consists of testimony not coming from personal 4nowledge (Sec. 3., Rule 13), Rules of ourt). ;earsay testimony is the testimony of a witness as to what he has heard other persons say about the facts in issue# (he e:ceptions to the hearsay rule areK dying declaration" declaration against interest" act or declaration about pedigree" family reputation or tradition regarding pedigree" common reputation" part of the res 2estae" entries in the course of business" entries in official records" commercial lists and the li4e" learned treatises" and testimony or deposition at a former proceeding# (37 to 47, Rule 13A, Rules of ourt)
@earsay% 89ce)tions% 6ying 6eclaration (1999)

(he accused was charged with robbery and homicide# (he victim suffered several stab wounds# )t appears that eleven 8AA9 hours after the crime" while the victim was being brought to the hospital in a eep" with his brother and a policeman as companions" the victim was as4ed 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 declaration7 %:plain# 82.9
SUGGESTED ANSWER:

Jes# (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 affect its admissibility as a dying declaration# $ dying declaration need not be in writing (Peo)le v.
?iovicente! &*# C(A 1)

@earsay% /na))licable (&$$4)

N was charged with robbery# &n the strength of a warrant of arrest issued by the court" N was arrested by police operatives# (hey seiCed from his person a handgun# $ charge for illegal possession of firearm was also filed against him# )n a press conference called by the police" N admitted that he had robbed the victim of ewelry valued at 1500"000#00# (he robbery and illegal possession of firearm cases were tried ointly# (he prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the press conference
Remedial Law Bar Examination Q & A (1997-2006)

stating that N admitted the robbery# )t li4ewise presented a certification of the 1*1 'irearms and %:plosive &ffice attesting that the accused had no license to carry any firearm# (he certifying officer" however" was not presented as a witness# Both pieces of evidence were ob ected to by the defense# 8G.9 a9 )s the newspaper clipping admissible in evidence against N7 b9 )s the certification of the 1*1 'irearm and %:plosive &ffice without the certifying officer testifying on it admissible in evidence against N7
SUGGESTED ANSWER:

8a9 Jes" the newspaper clipping is admissible in evidence against N# 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 ma4ing 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 e:istence of such fact# (1otesco /nvestment Cor)oration vs. C"atto! &1$
C(A 1* G199&E)

8b9 Jes" the certification is admissible in evidence against N because a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to e:ist in the records of his office" accompanied by a certificate as above provided" is admissible as evidence that the records of his office contain no such record or entry#
(Sec. 2* of Rule 132).

Judicial 2otice% 8vidence (&$$5)

%:plain briefly whether the 2(C may" motu 7ro7rio" ta4e udicial notice ofK 85.9 1. -"e street name of met"am)"etamine "ydro,c"loride is s"abu.
SUGGESTED ANSWER:

(he 2(C may motu 7ro7rio ta4e udicial notice of the street name of methamphetamine hydrochloride is shabu" considering the chemical composition of shabu# (Peo)le v. Macasling!
1M! 2o. 9$43&! May &7! 1994)

&.

0rdinances a))roved by munici)alities under its territorial <urisdiction%

SUGGESTED ANSWER:

)n the absence of statutory authority" the 2(C may not ta4e udicial notice of ordinances approved by municipalities under their territorial urisdiction" e:cept on appeal from the municipal trial courts" which too4 udicial notice of the ordinance in =uestion# (>. . v. Blanco! 1.(! 2o. 1&345!
2ovember

9!1917% >. . v. @ernandeD! 1.(. 2o. 9#99! August &#! 1915)

4.

.oreign la's%

SUGGESTED ANSWER:

by: sirdondee@gmail.com Page 56 of 66 (he 2(C may not generally ta4e udicial notice of foreign

laws (/n re 8state of Jo"nson! 1.(. 2o. 1&7#7! 2ovember 1#! 191*% .luemer v. @i9! 1.(. 2o. 4&#4#! Marc" 17! 194$)! which must be proved li4e any other matter of fact ( y Joe :ieng v. y Juia! 1.(. 2o. 371*! Marc" 19! 191$) e:cept in a few instances" the court in the e:ercise of its sound udicial discretion" may ta4e notice of foreign laws when 1hilippine courts are evidently familiar with them" such as the Spanish Civil Code" which had ta4en effect in the 1hilippines" and other allied legislation# (Pardo v. (e)ublic! 1.(. 2o. :&&3* January &4! 195$% 6elgado v.
(e)ublic! 1.(. 2o. :&53#! January .&*! 195$)

3.

(ules and (egulations issued by Buasi,<udicial bodies im)lementing statutes%

SUGGESTED ANSWER:

(he 2(C may ta4e udicial notice of 2ules and 2egulations issued by =uasi! udicial bodies implementing statutes" because they are capable of un=uestionable demonstration (C"attamal v. Collector of Customs! 1.(. 2o. 1#437! 2ovember 4!19&$)" unless the law itself considers such rules as an integral part of the statute" in which case udicial notice becomes mandatory# 5. (a)e may be committed even in )ublic )laces.
SUGGESTED ANSWER:

(he 2(C may ta4e udicial notice of the fact that rape may be committed even in public places# (he Lpublic settingL of the rape is not an indication of consent#
(Peo)le v. -ongson! 1.(. 2o. 91&#1! .ebruary 1*! 1991)

(he Supreme Court has ta4en udicial 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!
1.(. 2o. *&5*9! 0ctober 41! 199$)

Judicial 2otice% 8vidence% .oreign :a' (1997)

a9 3ive three instances when a 1hilippine court can ta4e udicial notice of a foreign law# b9 ;ow do you prove a written foreign law7 c9 Suppose a foreign law was pleaded as part of the defense of defendant but no evidence was presented to prove the e:istence of said law" what is the presumption to be ta4en by the court as to the wordings of said lawL7
SUGGESTED ANSWER:

8a9 (he three instances when a 1hilippine court can ta4e udicial notice of a foreign law areK 8A9 when the 1hilippine courts are evidently familiar with the foreign law (9oran. @ol. (, 7. 34, 19*) e#ition); 829 when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and 8-9 when it refers to a published treatise" periodical or pamphlet on the sub ect of law if the court ta4es udicial notice of the fact that the writer thereof is recogniCed in his profession or calling as e:pert on the sub ect (Sec. 4.. Rule 13)).
Remedial Law Bar Examination Q & A (1997-2006)

8b9 $ written foreign law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record" or by his deputy" and accompanied# )f the record is not 4ept in the 1hilippines" with a certificate that such officer has the custody" if the office in which the record is 4ept is in a foreign country" the certificate may be made by a secretary of the embassy or legation" consul general" consul" vice!consul" or consular agent or by any officer in the foreign service of the 1hilippines stationed in the foreign country in which the record is 4ept" and authenticated by the seal of his office ( ec. &3! (ule 14&! Halamea v. CA! &&*
C(A &4).

8c9 (he presumption is that the wordings of the foreign law are the same as the local law#
(2ort"'est 0rient Airlines v. Court of A))eals! &31 C(A 19&% Moran! ?ol. #. )age 43! 19*$ edition% :im v. Collector of Customs! 4# P"il. 37&)# (his is 4nown as the 12&C%SSU$L 12%SU>1()&*#

Memorandum (199#)

N states on direct e:amination that he once 4new the facts being as4ed but he cannot recall them now# 5hen handed a written record of the facts he testifies that the facts are correctly stated" but that he has never seen the writing before# )s the writing admissible as past recollection recorded7 %:plain"
SUGGESTED ANSWER:

*o" because for the written record to be admissible as past recollection recorded# )t must have been written or recorded by N 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 4new that the same was correctly written or recorded# (Sec. 1. of Rule 132) But in this case N has never seen the writing before# 0ffer of 8vidence (1997) $ trial court cannot ta4e into consideration in deciding a case an evidence that has not been Lformally offeredL# 5hen are the following pieces of evidence formally offered7 8a9 (estimonial evidence 8b9 Documentary evidence 8c9 &b ect evidence
SUGGESTED ANSWER:

8a9

(estimonial evidence is formally offered at the

time the witness is called to testify# (Rule 132. Sec. 3(, first 7ar.). 8b9 Documentary evidence is formally offered after

the presentation of the testimonial evidence# (Rule 132, Sec. 3(, secon# 7ar.). 8c9 (he same is true with ob ect evidence# )t is also offered after the presentation of the testimonial evidence#
by: sirdondee@gmail.com Page 57 of 66 0ffer of 8vidence% res inter alios acta (&$$4)

N and J were charged with murder# Upon application of the prosecution" J was discharged from the )nformation to be utiliCed as a state witness# (he prosecutor presented J as witness but forgot to state the purpose of his testimony much less offer it in evidence# J testified that he and N conspired to 4ill the victim but it was N who actually shot the victim# (he testimony of J was the only material evidence establishing the guilt of N# J was thoroughly cross! e:amined by the defense counsel# $fter the prosecution rested its case" the defense filed a motion for demurrer to evidence based on the following grounds# 8a9 (he testimony of J should be e:cluded because its purpose was not initially stated and it was not formally offered in evidence as re=uired by Section -<" 2ule A-2 of the 2evised 2ules of %videnceE and 8b9 JHs testimony is not admissible against N pursuant to the rule on Pres inter alios actaQ# 2ule on the motion for demurrer to evidence on the above grounds# 8G.9
SUGGESTED ANSWER:

(he demurrer to the evidence should be denied becauseK a9 (he testimony of J should not be e:cluded because the defense counsel did not ob ect to his testimony despite the fact that the prosecutor forgot to state its purpose or offer it in evidence# >oreover" the defense counsel thoroughly cross!e:amined J and thus waived the ob ection# b9 (he res inter alios acta rule does not apply because J testified in open court and was sub ected to cross e:amination# 0ffer of 8vidence% -estimonial ; 6ocumentary (1993) 5hat is the difference between an offer of testimonial evidence and an offer of documentary evidence7
SUGGESTED ANSWER:

$n offer of testimonial evidence is made at the time the witness is called to testify" while an offer of documentary evidence is made after the presentation of a partyHs testimonial evidence# (Sec. 3(, Rule 132). 0)inion (ule (1993) $t *olanHs trial for possession and use of the prohibited drug" 4nown as PshabuK" his girlfriend 6im" testified 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 ob ects to the admissibility of 6imHs testimony on the ground that 6im merely stated her opinion without having been first =ualified as e:pert witness# Should you" as udge" e:clude the testimony of 6im7
Remedial Law Bar Examination Q & A (1997-2006)
SUGGESTED ANSWER:

*o# (he testimony of 6im should not be e:cluded# %ven though 6im is not an e:pert witness" 6im may testify on her impressions of the emotion" behavior" condition or appearance of a person# (Sec. (), last 7ar., Rule 13)). Parol 8vidence (ule (&$$1) 1edro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note e:ecuted by Lucio# )n his complaint" 1edro alleged that although the promissory note says that it is payable within A20 days" the truth is that the note is payable immediately after D0 days but that if 1edro is willing" he may" upon re=uest of Lucio give the

latter up to A20 days to pay the note# During the hearing" 1edro testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately after ninety dayHs time# $lso" since the original note was with Lucio and the latter would not surrender to 1edro the original note which Lucio 4ept in a place about one dayHs trip from where he received the notice to produce the note and in spite of such notice to produce the same within si: hours from receipt of such notice" Lucio failed to do so# 1edro presented a copy of the note which was e:ecuted at the same time as the original and with identical contents# a9 &ver the ob ection of Lucio" will 1edro be allowed to testify as to the true agreement or contents of the promissory note7 5hy7 82.9 b9 &ver the ob ection of Lucio" can 1edro present a copy of the promissory note and have it admitted as valid evidence in his favor7 5hy7 8-.9
SUGGESTED ANSWER:

a9 Jes" because 1edro has alleged in his complaint that the promissory note does not e:press the true intent and agreement of the parties# (his is an e:ception to the parol evidence rule#
[Sec. 9(b) of Rule 13), Rules of ourt]

b9 Jes" the copy in the possession of 1edro is a duplicate original and with identical contents# [Sec. 4(b) of Rule 13)]. >oreover" the failure of Lucio to produce the original of the note is e:cusable because he was not given reasonable notice" as re=uirement under the 2ules before secondary evidence may be presented#
(Sec. . of Rule 13), Rules of ourt)

2oteC (he promissory note is an actionable document and the original or a copy thereof should have been attached to the complaint# (Sec. 7 of Rule 9, 1997 Rules of i!il "roce#ure). )n such a case" the genuineness and due e:ecution of the note" if not denied under oath" would be deemed admitted#
(Sec. * of Rule 9, 1997 Rules of i!il "roce#ure)

Pre)onderance vs.
SUGGESTED ANSWER:

ubstantial 8vidence (&$$4)

Distinguish preponderance of evidence from substantial evidence# <.


by: sirdondee@gmail.com Page 58 of 66 12%1&*D%2$*C% &' %0)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# ( ec. 1 of (ule 144% Munici)ality of Moncada v. Ca<uigan! &1 P"il! 1*3 G191&E)# SUBS($*()$L %0)D%*C% is that amount of relevant evidence which a reasonable mind might accept as ade=uate to ustify a conclusion# (his is applicable in case filed before administrative or =uasi! udicial bodies# (Sec. ( of Rule 133) Privilege Communication (199*) C is the child of the spouses ; and 5# ; sued his wife 5 for udicial declaration of nullity of marriage under $rticle -G of the 'amily Code# )n the trial" the following testified over the ob ection of 5K C" ; and D" a doctor of medicine who used to treat 5# 2ule on 5Fs ob ections which are the followingK ; cannot testify against her because of the rule on marital privilegeE ,A./ C cannot testify against her because of the doctrine on parental privilegeE and ,2./ D cannot testify against her because of the doctrine of privileged communication between patient and physician# ,2./
SUGGESTED ANSWER:

A# (he rule of marital privilege cannot be invo4ed in the annulment case under 2ule -G of the 'amily Code because it is a civil case filed by one against the other"
(Sec. 22 , Rule 13). Rules of ourt.)

2# (he doctrine of parental privilege cannot li4ewise be invo4ed by 5 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 ourt; -rt. 21(, $amil% o#e.)

-# D" as a doctor who used to treat 5" is dis=ualified to testify against 5 over her ob ection 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 ourt.)
ALTERNATI E ANSWER:

)f the doctorFs testimony is pursuant to the re=uirement of establishing the psychological incapacity of 5" and he is the e:pert called upon to testify for the purpose" then it should be allowed#
((e)ublic vs. Court of A))eals and Molina! &# C(A 19*.)

Privilege Communication% Marital Privilege (19*9)

&dy sued spouses Cesar and Baby for a sum of money and damages# $t the trial" &dy called Baby as his first witness# Baby ob ected" oined 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 ust be =uestioned about a conference they had with the barangay captain" a
Remedial Law Bar Examination Q & A (1997-2006)

matter which is not confidential in nature# (he trial court ruled in favor of &dy# 5as the ruling proper7 5ill your answer be the same if the matters to be testified on were 4nown to Baby or ac=uired by her prior to her marriage to Cesar7 %:plain#
SUGGESTED ANSWER:

*o# Under the 2ules on %vidence" a wife cannot be e:amined for or against her husband without his consent" e:cept in civil cases by one against the other" or in a criminal case for a crime committed by one against the other# Since the case was filed by &dy against the spouses Cesar and Baby" Baby cannot be compelled to testify for or against Cesar without his consent# (:eDama vs. (odrigueD! &4 C(A 11##). (he answer would be the same if the matters to be testified on were 4nown to Baby or ac=uired by her prior to her marriage to Cesar" because the marital dis=ualification rule may be invo4ed with respect to testimony on any fact# )t is immaterial whether such matters were 4nown to Baby before or after her marriage to Cesar# Privilege Communication% Marital Privilege (&$$$) 0ida and 2omeo are legally married# 2omeo is charged to court with the crime of serious physical in uries committed against Selmo" son of 0ida" stepson of 2omeo# 0ida witnessed the infliction of the in uries on Selmo by 2omeo# (he public prosecutor called 0ida to the witness stand and offered her testimony as an eyewitness# Counsel for 2omeo ob ected on the ground of the marital dis=ualification rule under the 2ules of Court# a9 )s the ob ection valid7 8-.9 b9 5ill your answer be the same if 0idaHs testimony is offered in a civil case for recovery of personal property filed by Selmo against 2omeo7 82.9
SUGGESTED ANSWER:

8a9 *o# 5hile neither the husband nor the wife may testify for or against the other without the consent of the affected spouse" one e:ception is if the testimony of the spouse is in a criminal case for a crime committed by one against the other or the latterHs direct descendants or ascendants# (Sec, 22, Rule 13))# (he case falls under this e:ception because Selma is the direct descendant of the spouse 0ide# 8b9 *o# (he marital dis=ualification rule applies this time# (he e:ception provided by the rules is in a civil case by one spouse against the other# (he case here involves a case by Selmo for the recovery of personal property against 0idaHs spouse" 2omeo#
Privilege Communication% Marital Privilege (&$$3)

NJO" an alien" was criminally charged of promoting and facilitating child prostitution and other se:ual abuses under 2ep# $ct *o# BGA0# (he principal witness against him was his 'ilipina wife" $BC# %arlier" she had complained that NJOFs hotel was by: sirdondee@gmail.com Page 59 of 66 being used as a center for se: tourism and child traffic4ing# (he defense counsel for NJO ob ected to the testimony of $BC at the trial of the child prostitution case and the introduction of the affidavits she e:ecuted against her husband as a violation of espousal confidentiality and marital privilege rule# )t turned out that D%'" the minor daughter of $BC by her first husband who was a 'ilipino" was molested by NJO earlier# (hus" $BC had filed for legal separation from NJO since last year# >ay the court admit the testimony and affidavits of the wife" $BC" against her husband" NJO" in the criminal case involving child prostitution7 2eason# 85.9
SUGGESTED ANSWER:

Jes# (he court may admit the testimony and affidavits of the wife against her husband in the criminal case where it involves child prostitution of the wifeFs daughter# )t is not covered by the marital privilege rule# &ne e:ception thereof is where the crime is committed by one against the other or the latterFs direct descendants or ascendants# (Sec. 22, Rule 13))# $ crime by the husband against the daughter is a crime against the wife and directly attac4s or vitally impairs the con ugal relation# (0rdono v. 6aBuigan!
#&

C(A &7$ G1975E).

Privilege Communication% Marital Privilege (&$$#)

Leticia was estranged from her husband 1aul for more than a year due to his suspicion that she was having an affair with >anuel their neighbor# She was temporarily living with her sister in 1asig City# 'or un4nown reasons" the house of LeticiaFs sister was burned" 4illing the latter# Leticia survived# She saw her husband in the vicinity during the incident# Later he was charged with arson in an )nformation filed with the 2egional (rial Court" 1asig City# During the trial" the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson# Can Leticia testify over the ob ection of her husband on the ground of marital privilege7 85.9
ALTERNATI E ANSWER:

*o" Leticia cannot testify over the ob ection of her husband" not under marital privilege which is inapplicable and which can be waived" but she would be barred under Sec# 22 of 2ule A-0" which prohibits her from testifying and which cannot be waived
(AlvareD v. (amireD! 1.(. 2o. 134349! 0ctober 13! &$$5).
ALTERNATI E ANSWER:

Jes" Leticia may testify over the ob ection of her husband# (he dis=ualification of a witness by reason of marriage under Sec# 22" 2ule A-0 of the 2evised 2ules of Court has its e:ceptions as where the marital relations are so strained that there is no more harmony to be preserved# (he acts of 1aul eradicate all ma or aspects of marital life# &n the other hand" the State has an interest in punishing the guilty and
Remedial Law Bar Examination Q & A (1997-2006)

e:onerating the innocent" and must have the right to offer the testimony of Leticia over the ob ection of her husband (AlvareD v. (amireD! 1.(. 2o. 134349!
0ctober 13! &$$5).

(emedy% :ost 6ocuments%

econdary 8vidence (199&) $ a: 1ower Corporation" a utility company" sued in the 2(C to enforce a supposed right of way over a property owned by Simplicio# $t the ensuing trial" $ a: presented its retired field auditor who testified that he 4now for a fact that a certain sum of money was periodically paid to Simplicio 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" identified by the retired field auditor as such" was formally offered as part of his testimony# 2e ected by the trial court" it was finally made the sub ect of an offer of proof by $ a:# Can $ a: validly claim that it had sufficiently met its burden of proving the e:istence of the contract establishing its right of way7 %:plain"
SUGGESTED ANSWER:

*o# $ a: had not sufficiently met the burden of proving the e:istence of the written contract because# )t had not laid the basis for the admission of a purported copy thereof as secondary evidence# $ a: should have first proven the e:ecution of the original document and its loss or destruction# (Sec. ( of Rule 13)) -estimony% /nde)endent (elevant tatement (1999) $ overheard B call N a thief# )n an action for defamation filed by N against B" is the testimony of $ offered to prove the fact of utterance i#e#" that B called N a thief" admissible in evidence7 %:plain# 82.9
SUGGESTED ANSWER:

Jes# (he testimony of $ who overheard B call N a thief is admissible in evidence as an independently relevant statement# )t is offered 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#
( ee Peo)le vs. 1addi! 17$ C(A #39)

Kitness% Com)etency of t"e Kitness vs. Credibility of t"e Kitness (&$$3)

Distinguish Competency of the witness and credibility of the witness#


SUGGESTED ANSWER:

Competency of the witness refers to a witness who can perceive" and perceiving" can ma4e 4nown his perception to others (Sec. 2) of Rule 13)), while credibility of the witness refers to a witness whose testimony is believable# by: sirdondee@gmail.com Page 60 of 66 Kitness% 89amination of a C"ild Kitness% via :ive,:inF -? (&$$5) 5hen may the trial court order that the testimony of a child be ta4en by live!lin4 television7 %:plain#
SUGGESTED ANSWER:

(he testimony of a child may be ta4en by live!lin4 television if there is a substantial li4elihood that the child would suffer trauma from testifying in the presence of the accused" his counsel or the prosecutor as the case may be# (he trauma must of a 4ind which would impair the completeness or truthfulness of the testimony of the child# (See Sec. 2(,

Rule on 8Bamination of a

0il# Citness).

Kitness% 89amination of Kitnesses (1997)

a9 $side from as4ing a witness to e:plain and supplement his answer in the cross! e:amination" can the proponent as4 in re!direct e:amination =uestions on matters not dealt with during cross!e:amination7 b9 $side from as4ing the witness on matters stated in his re!direct e:amination" can the opponent in his re!cross!e:amination as4 =uestions on matters not dealt with during the re! direct7 c9 $fter plaintiff has formally submitted his evidence" he realiCed that he had forgotten to present what he considered an important evidence# Can he recall a witness7
SUGGESTED ANSWER:

8a9 Jes" on redirect e:amination" =uestions on matters not dealt with during the cross! e:amination may be allowed by the court in its discretion# (Sec. 7 of Rule 132). 8b9 Jes" the opponent in his re!cross!e:amination may also as4 =uestions on such other matters as may be allowed by the court in its discretion# (Sec. *. Rule 132). 8c9 Jes" after formally submitting his evidence" the plaintiff can recall a witness with leave of court# (he court may grant or withhold leave in its discretion as the interests of ustice may re=uire# (Sec. 9. Rule 132).
Kitness% 89amination of Kitnesses (&$$&)

)s this =uestion on direct e:amination ob ectionableK P5hat happened on +uly A2" ADDDQ7 5hy7 82.9
SUGGESTED ANSWER:

(he =uestion is ob ectionable because it has no basis" unless before the =uestion is as4ed the proper basis is laid# Kitness% >tiliDed as tate Kitness% Procedure (&$$#) $s counsel of an accused charged with homicide" you are convinced that he can be utiliCed as a state witness# 5hat procedure will you ta4e7 82#5.9
SUGGESTED ANSWER:

$s counsel of an accused charged with homicide" the procedure that can be followed for the accused to be utiliCed as a state witness is to as4 the 1rosecutor to recommend that the accused be made a state witness#
Remedial Law Bar Examination Q & A (1997-2006)

)t is the 1rosecutor who must recommend and move for the acceptance of the accused as a state witness# (he accused may also apply under the 5itness 1rotection 1rogram#

SPECIAL PROCEEDINGS
Cancellation or Correction% 8ntries Civil (egistry (&$$5)

;elen is the daughter of %liCa" a 'ilipina" and (ony" a Chinese" who is married to another woman living in China# ;er birth certificate indicates that ;elen is the legitimate child of (ony and %liCa and that she is a Chinese citiCen# ;elen wants her birth certificate corrected by changing her filiation from LlegitimateL to LillegitimateL and her citiCenship from LChineseL to L'ilipinoL because her parents were not married# 5hat petition should ;elen file and what procedural re=uirements must be observed7 %:plain# 85.9
SUGGESTED ANSWER:

$ petition to change the record of birth by changing the filiation from LlegitimateL to LillegitimateL and petitionerFs citiCenship from LChineseL to L'ilipinoL because her parents were not married" does not involve a simple summary correction" which could otherwise be done under the authority of 2#$# *o# D0<?# $ petition has to be filed in a proceeding under 2ule A0? of the 2ules of Court" which has now been interpreted to be adversarial in nature# ((e)ublic v. ?alencia! 1.(. 2o. :,4&1*1! Marc" 5! 19*#) 1rocedural re=uirements includeK 8a9 filing a verified petitionE 8b9 naming as parties all persons who have or claim any interest which would be affectedE 8c9 issuance of an order fi:ing the time and place of hearingE 8d9 giving reasonable notice to the parties named in the petitionE and 8e9 publication of the order once a wee4 for three consecutive see4s in a newspaper of general circulation# (Rule 1)*, Rules
of ourt)

8sc"eat Proceedings (&$$&)

Suppose the property of D was declared escheated on +uly A" ADD0 in escheat proceedings brought by the Solicitor 3eneral# *ow" N" who claims to be an heir of D" filed an action to recover the escheated property# )s the action viable7 5hy7 82.9

SUGGESTED ANSWER:

*o" the action is not viable# (he action to recover escheated property must be filed within five years from +uly A" ADD0 or be forever barred# (Rule 91, sec. 4). 89tra,<udicial ettlement of 8state (&$$5) *estor died intestate in 200-" leaving no debts# ;ow may his estate be settled by his heirs who are of legal age and have legal capacity7 %:plain# 82.9
SUGGESTED ANSWER:

)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 by: sirdondee@gmail.com Page 61 of 66 stipulation in a pending action for partition and shall file a bond with the register of deeds in an amount e=uivalent to the value of the personal property involved as certified to under oath by the parties concerned# (he fact of e:tra! udicial settlement shall be published in a newspaper of general circulation once a wee4 for three consecutive wee4s in the province# (Sec. 1, Rule 74, Rules of ourt) @abeas Cor)us (1994) 2o:anne" a widow" filed a petition for habeas corpus with the Court of $ppeals against >a or $mor who is allegedly detaining her A?!year old son Bong without authority of the law# $fter >a or $mor had a filed a return alleging the cause of detention of Bong" the Court of $ppeals promulgated a resolution remanding the case to the 2(C for a full!blown trial due to the conflicting facts presented by the parties in their pleadings# )n directing the remand" the court of $ppeals relied on Sec#D8A9" in relation to Sec# 2A of B1 A2D conferring upon said Court the authority to try and decide habeas corpus cases concurrently with the 2(Cs# Did the Court of $ppeals act correctly in remanding the petition to the 2(C7 5hy7
SUGGESTED ANSWER:

*o" because while the C$ has original urisdiction over habeas corpus concurrent with the 2(Cs" it has no authority for remanding to the latter original actions filed with the former# &n the contrary" the C$ is specifically given the power to receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original urisdiction#
ALTERNATI E ANSWER:

Jes" because there is no prohibition in the law against a superior court referring a case to a lower court having concurrent urisdiction# (he Supreme Court has referred to the C$ or the 2(C cases falling within their concurrent urisdiction# @abeas Cor)us (199*) $ was arrested on the strength of a warrant of arrest issued by the 2(C in connection with an )nformation for ;omicide# 5" the live!in partner of $ filed a petition for habeas corpus against $Fs ailer and police investigators with the Court of $ppeals# A# Does 5 have the personality to file the petition for habeas corpus7 ,2./ 2# )s the petition tenable7 ,-./
SUGGESTED ANSWER:

A# Jes# 5" the live!in partner of $" has the personality to file the petition for habeas corpus because it may be filed by Lsome person in his behalf#L (Sec. 3. Rule 1)2. Rules of ourt.)
Remedial Law Bar Examination Q & A (1997-2006)

2# *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 ourt) @abeas Cor)us (&$$4) 5idow $ and her two children" both girls" aged ? and A2 years old" reside in $ngeles City" 1ampanga# $ leaves her two daughters in their house at night because she wor4s in a brothel as a prostitute# 2ealiCing the danger to the morals of these two girls" B" the father of the deceased husband of $" files a petition for habeas corpus against $ for the custody of the girls in the 'amily Court in $ngeles 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# 5hen $ learns of the petition and the writ" she brings her two children to Cebu City# $t the e:pense of B the sheriff of the said 'amily Court goes to Cebu City and serves the writ on $# $ files her comment on the petition raising the following defensesK a9 (he enforcement of the writ of habeas corpus in Cebu City is illegalE and b9 B has no personality to institute the petition# G. 2esolve the petition in the light of the above defenses of $# 8G.9
SUGGESTED ANSWER:

8a9 (he writ of habeas corpus issued by the 'amily Court in $ngeles City may not be legally enforced in Cebu City" because the writ is enforceable only within the udicial region to which the 'amily Court belongs" unli4e the writ granted by the Supreme Court or Court of $ppeals which is enforceable anywhere in the 1hilippines# ( ec. &$ of

(ule on Custody of Minors and Krit of @abeas Cor)us in (elation to Custody of Minors. (A.M. 2o. $4,$3,$3, C% see also ec. 3 of (ule 1$&! (ules of Court.)

8b9 B" the father of the deceased husband of $" 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 $ who is a prostitute# (Sectioins 2 an# 13, /#.) /ntestate Proceedings (&$$&) N filed a claim in the intestate proceedings of D# DHs administrator denied liability and filed a counterclaim against N# NHs claim was disallowed# 8A9 Does the probate court still have urisdiction to allow the claim of DHs administrator by way of offset7 5hy7 82.9 829 Suppose DHs administrator did not allege any claim against N by way of offset" can DHs administrator prosecute the claim in an independent proceeding@ why@ 8-.9
SUGGESTED ANSWER:

by: sirdondee@gmail.com Page 62 of 66

8A9 *o" because since the claim of N was disallowed" there is no amount against which to offset the claim of DHs administrator# 829 Jes" DHs administrator can prosecute the claim in an independent proceeding since the claim of N was disallowed# )f N had a valid claim and DHs administrator did not allege any claim against N by way of offset" his failure to do so would bar his claim forever# (Rule *., sec.
1)).

/ntestate Proceedings% 6ebts of t"e 8state (&$$&)

$" B and C" the only heirs in DHs intestate proceedings" submitted a pro ect 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 filed in the 2(C! IueCon City# DHs administrator then filed a motion in the probate court 82(C!>anila9" praying that one of the lots assigned to C in the pro ect of partition be turned over to him to satisfy debts corresponding to CHs portion# (he motion was opposed by the administrator of CHs estate# ;ow should the 2(C!>anila resolve the motion of DHs administrator7 %:plain# 8-.9
SUGGESTED ANSWER:

(he motion of DHs 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# G(ule 9$! sec. 1% (eyes v.
Barreto,6atu! 19 (19#7)E. C(A *5

Judicial

ettlement of 8state (&$$5) State the rule on venue in udicial settlement of estate of deceased persons# 82.9
SUGGESTED ANSWER:

)f the decedent is an inhabitant of the 1hilippines at the time ofF his death" whether a citiCen or an alien" the venue shall be in the 2(C in the province in which he resides at the time of his death" not in the place where he used to live# (Jao v. Court of A))eals!
1.(. 2o. 1&*413! May &9! &$$&)

)f he is an inhabitant" of a foreign country" the 2(C of any province or city in which he had estate shall be the venue# (he court first ta4ing cogniCance of the case shall e:ercise urisdiction to the e:clusion of all other courts# 5hen 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 con ugal partnership shall be li=uidated in the testate or intestate proceedings of either# ( ees. 1 and &! (ule 74! (ules of Court) Probate of :ost Kills (1999) 5hat are the re=uisites in order that a lost or destroyed 5ill may be allowed7 82.9
Remedial Law Bar Examination Q & A (1997-2006)

$Fs 5ill was allowed by the Court# *o appeal was ta4en from its allowance# (hereafter" J" who was interested in the estate of $" discovered that the 5ill was not genuine because $Fs

signature was forged by N# $ criminal action for forgery was instituted against N# >ay the due e:ecution of the 5ill be validly =uestioned in such criminal action7 82.9
SUGGESTED ANSWER:

a# )n order that a lost or destroyed will may be allowed" the following must be complied withK the e:ecution and validity of the same should be establishedE the will must have been in e:istence 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 4nowledgeE and its provisions are clearly and distinctly proved by at least two credible witnesses#
(Sec. ., Rule 7. of t0e Rules of
SUGGESTED ANSWER:

ourt)

b# *o# (he allowance of the will from which no appeal was ta4en is conclusive as to its due e:ecution# (Sec. 1 of Rule 7(.) Due e:ecution includes a finding that the will is genuine and not a forgery# $ccordingly" the due e:ecution 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 Kill (&$$4) $" a resident of >alolos" Bulacan" died leaving an estate located in >anila" worth 1200"000#00# )n what court" ta4ing into consideration the nature of urisdiction and of venue" should the probate proceeding on the estate of $ be instituted7 8<.9
SUGGESTED ANSWER:

(he probate proceeding on the estate of $ should be instituted in the >unicipal (rial Court of >alolos" Bulacan which has urisdiction" because the estate is valued at 1200"000#00" and is the court of proper venue because $ was a resident of >alolos at the time of his death# ( ec.
44 of BP 1&9 as amended by (A 7#91% ec. 1 of (ule 74).

Probate of Kill (&$$5)

$fter LuluFs 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 LuluFs estate in accordance with the terms of her will# )s the act of the lawyer correct7 5hy7 82.9
SUGGESTED ANSWER:

*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 ourt)

Probate of Kill (&$$#)

Sergio 1unCalan" 'ilipino" 50 years old" married" and residing at $yala $labang 0illage" >untinlupa City" of by: sirdondee@gmail.com Page 63 of 66 sound and disposing mind" e:ecuted a last will and testament in
%nglish" a language spo4en and written by him proficiently# ;e disposed of his estate consisting of a parcel of land in >a4ati City and cash deposit at the City Ban4 in the sum of 1 -00 >illion# ;e be=ueathed 1 50 >illion each to his - sons and 1 A50 >illion to his wife# ;e devised a piece of land worth 1A00 >illion to Susan" his favorite daughter!inlaw# ;e named his best friend" Cancio 0idal" as e:ecutor of the will without bond# /s Cancio ?idal! after learning of ergioMs deat"! obliged to file
'it" t"e )ro)er court a )etition of )robate of t"e latterMs last 'ill and testamentA (&I)
SUGGESTED ANSWER:

Cancio 0idal is obliged to file a petition for probate and for accepting or refusing the trust within the statutory period of 20 days under Sec# -" 2ule B5" 2ules of Court# u))osing t"e original co)y of t"e last 'ill and testament 'as lost! can Cancio com)el usan to )roduce a co)y in "er )ossession to be submitted to t"e )robate court. (&I)
SUGGESTED ANSWER:

Jes" Cancio can compel Susan to produce the copy in her possession# $ person having custody of the will is bound to deliver the same to the court of competent urisdiction or to the e:ecutor" as provided in Sec# 2" 2ule B5" 2ules of Court# Can t"e )robate court a))oint t"e 'ido' as e9ecutor of t"e 'illA (&I)
SUGGESTED ANSWER:

Jes" the probate court can appoint the widow as e:ecutor of the will if the e:ecutor does not =ualify" as when he is incompetent" refuses the trust" or fails to give bond (Sec. ., Rule 7*, Rules
of ourt).

Can t"e 'ido' and "er c"ildren settle e9tra<udicially among t"emselves t"e estate of t"e deceasedA (&I)
SUGGESTED ANSWER:

*o" the widow and her children cannot settle the estate e:tra udicially because of the e:istence of the 5ill# *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

ourt).

Can t"e 'ido' and "er c"ildren initiate a se)arate )etition for )artition of t"e estate )ending t"e )robate of t"e last 'ill and testament by t"e courtA (&I)
SUGGESTED ANSWER:

*o" the widow and her children cannot file a separate petition for partition pending the probate of the will# 1artition is a mode of settlement of the estate (Sec. 1,
Rule 7(, Rules of ourt).

Probate of Kill% Mandatory 2ature (&$$&)


Remedial Law Bar Examination Q & A (1997-2006)

5hat should the court do if" in the course of intestate proceedings" a will is found and it is submitted for probate7 %:plain# 82.9
SUGGESTED ANSWER:

)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# Upon the probate of the will" the intestate proceedings will be terminated# (Rule *2, sec. 1). ettlement of 8state (&$$1) (he rules on special proceedings ordinarily re=uire that the estate of the deceased should be udicially administered thru an administrator or e:ecutor# 5hat are the two e:ceptions to said re=uirements7 85.9
SUGGESTED ANSWER:

(he two e:ceptions to the re=uirement areK 8a9 5here the decedent left no will and no debts and the heirs are all of age" or the minors are represented by their udicial or legal representatives duly authoriCed for the purpose" the parties may without securing letters of administration" divide the estate among themselves by means of public instrument filed in the office 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 ad udicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds# (he parties or the sole heir shall file simultaneously abound with the register of deeds" in an amount e=uivalent to the value of the personal property as certified to under oath by the parties and conditioned upon the payment of any ust claim that may be filed later# (he fact of the e:tra udicial settlement or administration shall be published in a newspaper of general circulation in the province once a wee4 for three consecutive wee4s#
(Sec. 1 of Rule 74, Rules of ourt)

8b9 5henever the gross value of the estate of a deceased person" whether he died testate or intestate" does not e:ceed ten thousand pesos" and that fact is made to appear to the 2(C having urisdiction or the estate by the petition of an interested person and upon hearing" which shall be held not less than one 8A9 month nor more than three 8-9 months from the date of the last publication of a notice which shall be published once a wee4 for three consecutive wee4s 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 e:ecutor or administrator" to settle the estate# (Sec. 2 of Rule 74,
Rules of ourt)

ettlement of 8state% Administrator (199*)

$" 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 by: sirdondee@gmail.com Page 64 of 66 appointed administrator of said estate# S" the surviving spouse" opposed the petition and $Fs application to be appointed the administrator on the ground that he was not the child of her deceased husband D# (he court" however" appointed $ as the administrator of said estate# Subse=uently" S" claiming to be the sole heir of D" e:ecuted an $ffidavit of $d udication" ad udicating unto herself the entire estate of her deceased husband D# S then sold the entire estate to N# 5as the appointment of $ as administrator proper7 ,2./ 5as the action of S in ad udicating the entire estate of her late husband to herself legal7 ,-./
SUGGESTED ANSWER:

A# Jes" unless it is shown that the court gravely!abused its discretion in appointing the illegitimate child as administrator" instead of the spouse# 5hile the spouse en oys preference" it appears that the spouse has neglected to apply for letters of administration within thirty 8-09 days from the death of the decedent# ( ec. #! (ule 7*! (ules of Court%

1as)ay! Jr. vs. Court of A))eals. &4*


ALTERNATI E ANSWER:

C(A 1#4.)

S" the surviving spouse" should have been appointed administratri: of the estate" in as much as she en oys first preference in such appointment under the rules#
(Sec. .(a) of Rule 7*, Rules of
SUGGESTED ANSWER:

ourt.)

2# *o# $n affidavit of self!ad udication is allowed only if the affiant is the sole heir of the# deceased# (Sec. 1, Rule 74, Rules of ourt). )n this case" $ also claims to be an heir# >oreover" it is not legal because there is already a pending uridical proceeding for the settlement of the estate# ?enue% )ecial Proceedings (1997) 3ive the proper venue for the following special proceedingsK a9 $ petition to declare as escheated a parcel of land owned by a resident of the 1hilippines who died intestate and without heirs or persons entitled to the property# b9 $ petition for the appointment of an administrator over the land and building left by an $merican citiCen residing in California" who had been declared an incompetent by an $merican court# c9 $ petition for the adoption of a minor residing in 1ampanga#
SUGGESTED ANSWER:

8a9 (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 ourt). 8b9 (he venue for the appointment of an administrator over land and building of an $merican citiCen residing in California" declared )ncompetent
Remedial Law Bar Examination Q & A (1997-2006) (Sec. 1. Rule 92).

by an $merican Court" is the 2(C of the place where his property or part thereof is situated# 8c9 (he venue of a petition for the adoption of a minor residing in 1ampanga is the 2(C of the place in which the petitioner resides# (Sec. 1. Rule 99)

SUMMARY PROCEDURE
Pro"ibited Pleadings (&$$3)

Charged with the offense of slight physical in uries under an information duly filed with the >e(C in >anila which in the meantime had duly issued an order declaring that the case shall be governed by the 2evised 2ule on Summary 1rocedure" the accused filed with said court a motion to =uash on the sole ground that the officer who filed 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 2ule# (he accused thereupon filed with the 2(C in >anila a petition for certiorari in sum assailing and see4ing the nullification of the >e(CFs denial of his motion to =uash# (he 2(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 2ule# (he accused forthwith filed with said 2(C a motion for reconsideration of its said order# (he 2(C in time denied said motion for reconsideration on the ground that the same is also a prohibited motion under the said 2ule# 5ere the 2(CFs orders denying due course to the petition as well as denying the motion for reconsideration correct7 2eason# 85.9
SUGGESTED ANSWER:

(he 2(CFs 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 Section AD8g9 of the 2evised 2ule on Summary 1rocedure and the motion for reconsideration" while it is not prohibited motion (:ucas v. .abros! AM 2o. M-J,99,1&&#! January
41! &$$$! citing Joven v. Court of A))eals! &1&

because the petition for certiorari is a prohibited pleading#

C(A 7$$! 7$7,7$* (199&)! should be denied

MISCELLANEOUS
Administrative Proceedings (&$$5)

2egional Director $3 of the Department of 1ublic 5or4s and ;ighways was charged with violation of Section -8e9 of 2epublic $ct *o# -0AD in the &ffice of the &mbudsman# $n administrative charge for gross misconduct arising from the transaction sub ect matter of said criminal case was filed against him in the same office# (he &mbudsman assigned a team by: sirdondee@gmail.com Page 65 of 66 composed of investigators from the &ffice of the Special

1rosecutor and from the &ffice of the Deputy &mbudsman for the >ilitary to conduct a oint investigation of the criminal case and the administrative case# (he team of investigators recommended to the &mbudsman that $3 be preventively suspended for a period not e:ceeding si: months on its finding that the evidence of guilt is strong# (he &mbudsman issued the said order as recommended by the investigators# $3 moved to reconsider the order on the following groundsK 8a9 the &ffice of the Special 1rosecutor had e:clusive authority to conduct a preliminary investigation of the criminal caseE 8b9 the order for his preventive suspension was premature because he had yet to file his answer to the administrative complaint and submit countervailing evidenceE and 8c9 he was a career e:ecutive service officer and under 1residential Decree *o# ?0B 8Civil Service Law9" his preventive suspension shall be for a ma:imum period of three months# 2esolve with reasons the motion of respondent $3# 85.9
SUGGESTED ANSWER:

(he motion should be denied for the following reasonsK (he &ffice of the Special 1rosecutor does not have e:clusive 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# (he order of preventive suspension need not wait for the answer to the administrative complaint and the submission of countervailing evidence# (,arcia !. 9o?ica, ,.R. 'o. 139)3,
Se7tember 1), 1999) )n @as<ueD case, ,.R. 'o. 11)*)1, -7ril ., 199(" the court ruled that preventive suspension

pursuant to Sec# 2< of 2#$# *o# GBB0 8&mbudsman $ct of AD?D9" shall continue until termination of the case but shall not e:ceed si: 8G9 months" e:cept in relation to 2#$# *o" -0AD and 1#D# *o# ?0B# $s a career e:ecutive officer" his preventive suspension under the Civil Service Law may only be for a ma:imum period of three months# (he period of the suspension under the $nti!3raft Law shall be the same pursuant to the e=ual protection clause# (1arcia v. Mo<ica! 1.(. 2o. 149$4! e)tember 1$! 1999% :ayno v. andiganbayan!
1.(. 2o. :,#5*3*! May &1! 19*5)

Congress% :a' 89)ro)riating Pro)erty (&$$#)

>ay Congress enact a law providing that a 5" 000 s=uare meter lot" a part of the US( compound in Sampaloc >anila" be e:propriated for the construction of a par4 in honor of former City >ayor $rsenic Lacson7 $s compensation to US(" the City
!dated "# Dondee Remedial Law Bar Examination Q & A (1997-2006) by: sirdondee@gmail.com Page Version 1997-2006

66 of 66 of >anila shall deliver its 5!hectare lot in Sta# 2osa" Laguna originally intended as a residential subdivision for the >anila City ;all employees# %:plain# 85.9
SUGGESTED ANSWER:

Jes" Congress may enact a law e:propriating property provided that it is for public use and with ust compensation# )n this case" the construction of a par4 is for public use ( ee ena v.
Manila (ailroad Co.! 1.(. 2o. 15915! e)tember 7! 19&1% (eyes v. 2@A! 1( 2o. 137511! Marc" &3! &$$4). (he planned compensation" however" is not legally tenable as the determination of ust

compensation is a udicial function# *o statute" (A 4$19% Mandatory us)ension (&$$1) decree or e:ecutive order can mandate that the determination of ust compensation by the e:ecutive or legislative departments can prevail over the courtFs findings (89)ort Processing
Hone Aut"ority v. 6ulay! 1.(. 2o. :,59#$4! A)ril &9!19*7% &$$1). ees. 5 to * (ule #7!1997 (ules of Civil Procedure). )n addition" compensation must be paid in money (8steban v. 0norio! A.M. 2o. $$,3,1##,(-C! June &9!

# 3overnor 1edro >ario of (arlac was charged with indirect bribery before the Sandiganbayan for accepting a car in e:change of the award of a series of contracts for medical supplies# (he Sandiganbayan" 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 8Sec# Aof 2#$# -0AD9 his suspension is not automatic upon the filing of the information and his suspension under Sec# A-" 2#$# -0AD is in conflict with Sec# 5 of the DecentraliCation $ct of ADGB 82#$# 5A?59# (he Sandilganbayan overruled >arioHs contention stating that >arioHs suspension under the circumstances is mandatory# )s the courtHs ruling correct7 5hy7
SUGGESTED ANSWER:

Jes# >arioHs suspension is mandatory" although not automatic" (Sec. 13 of R.-. 'o. 3)19 in relation to Sec. ( of t0e &ecentraliDation -ct of 19.7 (R.-. 'o. (1*(). )t is mandatory after the determination of the validity of the information in a pre!suspension hearing# G egovia v. andiganbayan! &** C(A 4&* (19**)E. (he purpose of suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further acts of malfeasance while in office#