ANSWERS TO BAR

EXAMINATION QUESTIONS
IN
REMEDIAL LAW
ARRANGED BY TOPIC
(1987 2004)

Edited and Arranged by:

Silliman University
College of Law Batch 2005
From the ANSWERS TO BAR EXAMINATION
QUESTIONS by the UP LAW COMPLEX
July 26, 2005

Page 1 of 172

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 Examinations 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. Share to others this work and you will be richly
rewarded by God in heaven. It is also very good karma.
We would like to seek the indulgence of the reader for some Bar
Questions which are improperly classified under a topic and for some
topics which are improperly or ignorantly phrased, for the authors are just
Bar Reviewees who have prepared this work while reviewing for the Bar
Exams under time constraints and within their limited knowledge of the
law. We would like to seek the readers indulgence for a lot of
typographical errors in this work.

The Authors
July 26, 2005

Page 2 of 172

TABLE OF CONTENTS

General principles...............................................................................................................
Jurisdiction..........................................................................................................................
Civil Procedure..................................................................................................................
Summary Procedure.........................................................................................................
Criminal Procedure...........................................................................................................
Special Proceedings........................................................................................................135
Evidence............................................................................................................................146

Page 3 of 172

DETAILED TABLE OF CONTENTS

General principles...............................................................................................................
Family Courts Act..............................................................................................................
General principles..............................................................................................................
hierarchy of courts.......................................................................................................
Jurisdiction..........................................................................................................................
accion publiciana.............................................................................................................
incapable of pecuniary estimation...................................................................................
libel..................................................................................................................................
payment of docket fees....................................................................................................
probate.............................................................................................................................
replevin............................................................................................................................
unlawful detainer.............................................................................................................
Katarungang pambarangay....................................................................................................
RA 3019; mandatory suspension...........................................................................................
Civil Procedure..................................................................................................................
Civil action; claims that survive; money claims..............................................................
actionable documents.......................................................................................................
actions that survive..........................................................................................................
money claims.............................................................................................................
amendment of complaint.................................................................................................
amendment of complaint to conform to evidence.....................................................
amendment of compromise agreement............................................................................
amendment of pleadings..................................................................................................
annulment of judgment; rule 45 vs rule 65......................................................................
appeals.............................................................................................................................
bill of particulars..............................................................................................................
cause of action.................................................................................................................
joinder........................................................................................................................
parties.........................................................................................................................
splitting a cause of action..........................................................................................
certification against forum shopping...............................................................................
class suit...........................................................................................................................
common cause of action; party in default........................................................................
compulsory counterclaim.................................................................................................
concurrent jurisdiction.....................................................................................................
counterclaim....................................................................................................................
cross-claims/ 3rd party claims...........................................................................................
cross-claims/third party claims........................................................................................
death
death of a party; effect...............................................................................................
death of defendant; effect..........................................................................................
default..............................................................................................................................
default; remedies..............................................................................................................
demurrer to evidence.......................................................................................................
dismissal by the plaintiff..................................................................................................
dismissal of action; effect on counterclaim.....................................................................
dismissal without prejudice.............................................................................................
effect of failure to answer................................................................................................
error of judgment vs error of jurisdiction........................................................................
execution of judgments

Page 4 of 172

execution of judgments; 5-year period......................................................................

execution of judgments; effect of death of losing party............................................
execution of judgments; examination of defendant...................................................
Execution of judgments; rights of pledgee................................................................
execution of judgments; writ of execution................................................................
execution pending appeal..........................................................................................
failure to tender an issue..................................................................................................
filing of pleadings; periods..............................................................................................
forum shopping................................................................................................................
intervention......................................................................................................................
joinder of action; joinder of parties.................................................................................
judgment on the merits; contents.....................................................................................
judgment on the pleadings...............................................................................................
kinds of civil actions........................................................................................................
mandamus........................................................................................................................
modes of discovery..........................................................................................................
motion execution pending appeal....................................................................................
motion for recon; extension of time.................................................................................
motion to dismiss
motion to dismiss; bar by prior judgment..................................................................
motion to dismiss; condition precedent.....................................................................
motion to dismiss; no cause of action........................................................................
motion to dismiss; res judicata..................................................................................
motions; 3-day notice rule...............................................................................................
new-trial; grounds............................................................................................................
partial summary judgment; when appealable..................................................................
permissive counterclaim..................................................................................................
permissive joinder of parties............................................................................................
petition for certiorari........................................................................................................
petition for relief; injunction............................................................................................
pleadings..........................................................................................................................
pleadings; reply..........................................................................................................
pleadings; verification...............................................................................................
prejudicial question..........................................................................................................
pre-trial............................................................................................................................
pre-trial; effect of absence of parties.........................................................................
procedure in CA; reception of evidence..........................................................................
provisional remedies........................................................................................................
attachment..................................................................................................................
attachment; injunction...............................................................................................
injunction...................................................................................................................
preliminary attachments.............................................................................................
receivership................................................................................................................
special civil action; replevin vs foreclosure...............................................................
support.......................................................................................................................
TRO...........................................................................................................................
real parties in interest.......................................................................................................
remedies...........................................................................................................................
remedies; appeal........................................................................................................
remedies; decisions of SC division............................................................................
remedies; final and executory judgments..................................................................
remedies; modes of appeal.........................................................................................
remedies; period.........................................................................................................
remedies; petition for relief.......................................................................................
remedies; petition for review.....................................................................................
remedies; Rule 45; Rule 65........................................................................................
reply.................................................................................................................................
Page 5 of 172

Rule 45 vs Rule 65..........................................................................................................

Rule 65; motion for recon................................................................................................
Special Civil Action
ejectment..................................................................................................................
foreclosure...............................................................................................................
petition for certiorari................................................................................................
quo warranto............................................................................................................
contempt..................................................................................................................
interpleader..............................................................................................................
interpleader; declaratory relief...........................................................................
subpoena..........................................................................................................................
summary judgment..........................................................................................................
summary judgments; judgment on the pleadings............................................................
summons..........................................................................................................................
summons; extraterritorial service............................................................................
Summons; voluntary appearance.............................................................................
summons; waiver of improper service.....................................................................
supplemental pleadings....................................................................................................
third party claim...............................................................................................................
totality rule.......................................................................................................................
venue
venue; compulsory counterclaim............................................................................
venue; legal capacity to sue.....................................................................................
venue; personal actions............................................................................................
Summary Procedure.........................................................................................................
coverage...........................................................................................................................
ejectment..........................................................................................................................
ejectment; execution pending appeal.......................................................................
ejectment; issues of ownership................................................................................
ejectment; jurisdiction and remedies.......................................................................
ejectment; motion for execution..............................................................................
ejectment; supersedeas bond....................................................................................
immediately executory.....................................................................................................
motion for recon..............................................................................................................
motion to dismiss.............................................................................................................
motion to quash................................................................................................................
procedure in criminal cases.............................................................................................
prohibited motion/ pleadings; remedies...........................................................................
violation of municipal ordinance.....................................................................................
Criminal Procedure...........................................................................................................
acquittal; effect................................................................................................................
allegations of aggravating circumstances........................................................................
amendment and substitution of information....................................................................
amendment of information..............................................................................................
amendment of information; double jeopary; bail; change of plea...........................
amendment of information; supervening events....................................................100
bail.................................................................................................................................100
bail; appeal.............................................................................................................104
bail; reduction........................................................................................................104
bail; where to apply...............................................................................................104
BP 22
BP22; civil action deemed included......................................................................105
BP22; demurrer to evidence..................................................................................105
civil liability...................................................................................................................105
complaint/information; discretionary power of fiscal; injunction.................................106
complex crimes; jurisdiction..........................................................................................106
corpus delicti..................................................................................................................106
Page 6 of 172

court martial; jurisdiction..............................................................................................107

demurrer to evidence.....................................................................................................107
dismissal; failure to prosecute........................................................................................110
double jeopardy..............................................................................................................110
double jeopardy; provisional dismissal; bail..........................................................113
effect of death of accused..............................................................................................113
effect of filing of information........................................................................................114
effect of plea of guilty....................................................................................................115
enjoinment of criminal cases; when allowed.................................................................116
filing of information; effect...........................................................................................116
insufficient information; remedies/ effects....................................................................117
jurisdiction over BP22 cases..........................................................................................118
modification of judgment...............................................................................................118
motion to quash..............................................................................................................118
motion to quash; prel. inves...................................................................................119
multiplicity of offenses; remedies..................................................................................119
prejudicial question........................................................................................................120
prel. inves.; jurisdiction of MTC...................................................................................121
prescription of offense...................................................................................................121
pre-trial..........................................................................................................................123
pre-trial agreement; approval by court..................................................................123
promulgation of judgment.............................................................................................123
prosecution of offenses; who should file.......................................................................124
provisional dismissal.....................................................................................................124
remedies
remedies; appeal....................................................................................................125
remedies; appeal/petition for review.....................................................................126
remedies; unjust judgment.....................................................................................126
rights of the accused......................................................................................................126
valid waiver...........................................................................................................127
searches and seizures.....................................................................................................128
speedy trial.....................................................................................................................128
state witness; qualifications...........................................................................................128
searches and seizures; Terry search...............................................................................129
third-party claims; intervention.....................................................................................129
trial in absentia; automatic review of conviction...........................................................130
venue..............................................................................................................................130
warrant of arrest; bail.....................................................................................................131
warrantless arrests and searches....................................................................................131
warrantless arrests; objection.................................................................................133
warrantless arrests; prel. inves...............................................................................133
when an offense necessarily includes another; remedies...............................................134
who should file complaint for adultery..........................................................................134
withdrawal of information.............................................................................................135
Special Proceedings........................................................................................................135
change of name..............................................................................................................135
claims against the estate.................................................................................................136
correction of entries.......................................................................................................136
habeas corpus.................................................................................................................137
habeas corpus; jurisdiction....................................................................................138
habeas corpus; preliminary citation.......................................................................138
habeas corpus; proper party...................................................................................139
partition..........................................................................................................................139
probate of wills..............................................................................................................140
probate; jurisdiction...............................................................................................140
probate; lost wills...................................................................................................140
probate; mandatory character................................................................................141
Page 7 of 172

settlement of estate........................................................................................................141
administrator..........................................................................................................143
issues on ownership...............................................................................................144
issues on ownership...............................................................................................144
modes.....................................................................................................................145
venue..............................................................................................................................145
Evidence............................................................................................................................146
admissibility...................................................................................................................146
admissibility of DNA.............................................................................................147
admissibility of evidence.......................................................................................147
admissibility; anti-wire tapping act.......................................................................148
admissibility; objections........................................................................................149
admission of evidence not alleged in the complaint..............................................149
admissions/confessions..................................................................................................149
authentic documents......................................................................................................149
best evidence rule..........................................................................................................150
best evidence rule; parol evidence rule..................................................................151
character evidence.........................................................................................................151
confession; affidavit of recantation................................................................................151
cross-examination..........................................................................................................152
dead man statute............................................................................................................152
dying declaration...........................................................................................................153
effect of an offer of compromise...................................................................................155
electronic evidence........................................................................................................156
equipoise doctrine..........................................................................................................156
examination of witnesses...............................................................................................156
formal offer of evidence................................................................................................157
res inter alios acta....................................................................................................158
formal offer vs offer of proof...................................................................................159
hearsay evidence............................................................................................................159
hearsay exceptions...................................................................................................159
impeachment of witnesses.............................................................................................161
judicial notice; foreign law............................................................................................162
kinds; admissibility........................................................................................................162
lost documents; secondary evidence..............................................................................163
marital disqualification rule...........................................................................................163
marital privilege; parental privilege; privileged communication............................165
memorandum.................................................................................................................165
offer to marry; circumstantial evidence.........................................................................166
offer to pay expenses; effect..........................................................................................166
offfer of testimonial and documentary...........................................................................166
opinion rule....................................................................................................................166
parol evidence rule.........................................................................................................167
preponderance vs substantial evidence..........................................................................167
qualifications of witnesses.............................................................................................168
qualifications of witnesses; weight of evidence......................................................168
res gestae; dying declaration..........................................................................................168
res inter alios rule...........................................................................................................170
right to cross examine....................................................................................................170
rules of admissibility......................................................................................................171
suppression of evidence; presentation of informant......................................................172
tender of excluded evidence..........................................................................................172

Page 8 of 172

General principles/ Jurisdiction

Family Courts Act
2001 No. XIV
a)
How should the records of child and family cases in the
Family Courts or Regional Trial Court designated by the Supreme Court to
handle Family Court cases be treated and dealt with? (3%)
b)
Under what conditions may the identity of parties in child
and family cases be divulged (2%)
SUGGESTED ANSWER:
a)
The records of child and family cases in the Family Code to
handle Family Court cases shall be dealt with utmost confidentiality.
(Sec. 12, Family Courts Act of 1997)
b)
The identity of parties in child and family cases shall not
be divulged unless necessary and with authority of the judge. (Id.)
General principles
1996 No. 1:
3)
Explain?

Can civil and criminal cases be adjudicated without trial?

Answer;
3)
Civil cases may be adjudicated without trial, such as In the
following rules:
a)
b)
c)
d)

Summary Judgment.
Judgment on the Pleadings.
Summary procedure.
Sec. 3 of Rule 17.

Criminal cases as a rule may not be adjudicated without trial.

Some exceptions are the following:
a)

Plea of guilty.

b)
Motion to quash on the ground
extinction of criminal action or liability.

of

double

jeopardy

or

c)
Motion to dismiss on the ground of violation of the right
to a speedy trial.
General principles
1997 No. 17;
Distinguish:
(a)

Bar by prior judgment from conclusiveness of judgment

(b)

Cause of action from action Answer;

(a) Bar by prior-judgment is the doctrine of res judicata, which

bars a second action when there is identity of parties, subject matter
and cause of action. (Sec. 49[b] of former Rule 39; Sec, 47 [b] of new
Rule 39). Conclusiveness of judgment precludes the relitigation of a
particular Issue in another action between the same parties on a
different cause of action. (Sec. 49 [c] of former Rule 39; sec. 47 [c]
of new Rule 39).
(b)
A cause of action is an act or omission of one party in
violation of the legal right or rights of the other (Maao Sugar Central
vs. Barrios, 79 Phil. 606; Sec. 2 of new Rule 2), causing damage to
another
An action is an ordinary suit in a court of Justice 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),

Page 9 of 172

General principles
1998 No I.
1.

Distinguish civil actions from special proceedings. [3%]

2.
ANSWER:

How shall the Rules of Court be construed? [2%] SUGGESTED

1.
A civil action 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 Civil Procedure), while a
special proceeding is a remedy by which a party seeks to establish a
status, a right or a particular feet. (Sec. 3[C]. Rule 1,1997 Rules of
Civil Procedure.)
2.
The Rules of Court should be liberally construed in order
to promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding. (Sec. 6, Rule 1 1997 Rules
of Civil Procedure.)
ADDITIONAL ANSWER:
However, 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 Judicial
business. (Alvero vs. Judge de la Rosa, 76 Phil. 428 and other cases.)
General principles
2003 No. I.
In rendering a decision, should a court take into consideration
the possible effect of its verdict upon the political stability and
economic welfare of the nation? 4%
SUGGESTED ANSWER:
No, because a court is required to take into consideration only
the legal issues and the evidence admitted in the case. The political
stability and economic welfare of the nation are extraneous to the case.
They can have persuasive influence but they are not the main factors
that should be considered in deciding a case. A decision should be based
on the law, rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political stability and
economic welfare of the nation when these are capable of being taken
into judicial notice of and are relevant to the case.
General principles; hierarchy of courts
1996 No. 1:
2)

What is meant by "hierarchy of courts"?

Answer;
2} By "hierarchy of courts" is meant that while the Supreme
Court, the Court of Appeals and the Regional Trial Courts have
concurrent original jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto and habeas corpus, such concurrence
does not accord litigants unrestrained freedom of choice of the court to
which application therefor may be directed. The application should be
filed with the court of lower level unless the importance of the issue
involved deserves the action of the court of higher level. (Uy vs.
Contreras, 237 SCRA 167)
(NOTE:
purposes)

The rules and cases are cited merely for reference

Jurisdiction
1987 No (1)
A leased his commercial land and building in Malate, Manila to
B, a resident of Malolos, Bulacan. The contract of lease provided that
in the event A violates the contract, B may file suit in Manila, As

Page 10 of 172

residence, and if B violates the contract, A may sue B in Malolos. B

violated the contract, entitling A to sue for ejectment.
If you were the lawyer of A, where and
lawfully file the action for ejectment? Explain.

which

court

can

you

Answer:
I can lawfully file the action for ejectment either in the MetroTC
of Manila or in the MTC of Malolos. Metropolitan and Municipal Trial
Courts have exclusive original jurisdiction over the cases of forcible
entry and unlawful detainer or ejectment cases. The stipulation in the
lease contract that if B violates the contract A may sue B in Malolos is
valid, because the location of the real property in such cases
determines the venue of the action and not jurisdiction over the subject
matter. However, since the agreement as to the venue is merely
permissive, as shown by the use of the word may, the action may also
be filed in Manila where the real property is located. (Villanueva vs.
Masqueda, 155 SCRA 904)
Jurisdiction
1988 (2)
Norma is the owner of Love and Peace Enterprises, a sole
proprietorship engaged in the manufacture of bullets, with a work force
of 100 employees whom top employee, Evelyn, supervises. Norma, however,
soon to lost confidence in Evelyn, and to force her to resign, refused
to pay her salaries and other economic benefits required by law. Instead
of resigning, however, Evelyn decided to fight back.
On the strength of Art. 1701 of the Civil Code, as follows:
ART 1701. Neither capital nor labor shall act oppressively against
the other, or impair the interest or convenience of the public in
relation to Art. 212 thereof as follows:
ART 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public policy
shall compensate the latter for damages.
Evelyn went to the RTC on a complaint for actual, exemplary and
moral damages. Norma moved to dismiss the complaint for lack of
jurisdiction alleging that it is the labor arbiters who are vested with
the jurisdiction. Evelyn opposed the motion on the ground that her
complaint is based on tort and hence, purely civil in character.
2.a) decide the incident with reason.
2.b) what is jurisdiction and how does it differ from cause of
action? How are they acquired? Explain.
Answer:
2.a) Motion to dismiss granted. Under the Labor Code, the labor
arbiters have jurisdiction over all claims for damages sought to be
recovered by an employee arising from an illegal dismissal or forced
resignation. (Atlas Fertilizer Corp. vs. Navarro, 149 SCRA 432; Primero
vs. IAC, Dec. 14, 1987)
2.b) Jurisdiction is the authority to hear and determine cause,
the right to act in a case. It is given by law and in the manner
prescribed by law; whereas cause of action is an act or omission of one
party in violation of the legal rights of the other.
Jurisdiction
1992 No. I:
In a suit to recover a sum of money, plaintiff filed his
complaint with the Regional Trial Court instead of with the Municipal
Trial Court which has jurisdiction over the case because of the amount
involved. The defendant did not file a motion to dismiss. Neither did
the Regional Trial Court dismiss the case on its own initiative. At the
pre-trial hearing, defendant tried to have the case settled. With the

Page 11 of 172

effective help of the presiding judge, he was able to forge with the
plaintiff a compromise agreement which stipulated that he would pay in
twelve (12) equal monthly installments starting the first day of the
following month, each to become due without need of any demand. Failure
to pay any installment when due will render the entire amount
enforceable by writ of execution. Judgment was rendered on the basis of
the compromise agreement and was then served on the parties.
Defendant failed to pay the first installment as it fell due.
Plaintiff thereupon sought execution which was granted, and the
corresponding writ of execution was issued. Defendant filed in due form
a motion to set aside the writ of execution upon the contention that the
court had no power to order the issuance of the writ of execution
because it has no jurisdiction over the nature of the action, an issue
that can be raised at any stage of the case. The court granted the
defendant's motion and accordingly set aside the writ of execution.
Did the court act correctly? Why?
Suggested Answer:
Yes. the court acted correctly, because jurisdiction over the
subject matter or nature of an action cannot be conferred by agreement
of the parties. Whenever it appears that the court has no jurisdiction
over the subject matter, it shall dismiss the action. (Sec, 2 of Rule 9)
Another Acceptable Answer:
Inasmuch as the defendant did not file a motion to dismiss and
the parties submitted a compromise agreement on the basis of which
Judgment was rendered, the defendant is estopped to raise the question
of jurisdiction. (Tijam vs. Sibonghanoy, 23 SCRA 29 and other cases)
Jurisdiction
1993 No (17)
Menez Duque filed an action against Fuji, Inc. before the Regional
Trial Court for recovery of actual. Moral and exemplary damages
resulting from his alleged unfounded and unjust dismissal from his job.
Fuji, Inc. filed an answer asserting that Menez dismissal was for
just and valid cause.
After trial, the RTC rendered a decision sustaining Menez claim
and ordering Fuji, Inc. to pay him actual, moral and exemplary damages.
Fuji, Inc. appealed to the Court of Appeals where it insisted that
Menez dismissal was for valid and just cause.
Without resolving the assigned error, the Court of Appeals set
aside the appealed decision and dismissed the case on the ground that it
is the Labor Arbiter, not he ordinary courts, which has jurisdiction to
entertain the claim for damages.
Pursuant to RA No. 6715, claims for actual, moral, exemplary and
other forms of damages arising from employer-employee relations falls
within the original and exclusive jurisdiction of Labor Arbiters.
Considering, however, that the lack of jurisdiction of the trial court
was assigned as error in the appellants brief, did the Court of Appeals
act properly in its decision? Why?
Answer:
Yes, because the fact that the lack of jurisdiction of the trial
court was not assigned as error in the appellants brief should not
prevent the Court of Appeals from taking up that issue, as the lack of
jurisdiction of the lower court is apparent from the face of the record.
It is fundamental that a court of justice could only validly act upon a
cause of action or subject matter of a case over which it has
jurisdiction. Said jurisdiction is one conferred by law and cannot be
acquired through, or waived by, any act or omission of the parties.
Alternative Answer:

Page 12 of 172

Fuji, Inc. is estopped from raising the question of jurisdiction,

inasmuch as it filed an answer asserting Menezs dismissal was for just
and valid cause and in its appeal to the Court of Appeals, it insisted
on that defense.
Jurisdiction
1994 No (2)
How is jurisdiction acquired by a court over the person of:
1. the plaintiff in a special action for mandamus?
2. The defendant in action for unlawful detainer?
3. A non resident defendant who is not found in the Philippines,
in an action for compulsory acknowledgment of his natural child?
Answer:
1. Jurisdiction is acquired over the plaintiff in a special civil
action for mandamus by the commencement or filing of the action.
Alternative Answer:
1. Such jurisdiction is acquired by the filing of the action and
the payment of the prescribed docket fees.
2. Jurisdiction is acquired over the person of the defendant in an
action for unlawful detainer by the proper service of summons on him or
by his voluntary appearance.
3. Jurisdiction cannot be acquired over the person of a nonresident defendant who is not found in the Philippines in an action for
compulsory acknowledgment of his natural child because he is outside the
jurisdiction of the court.
Alternative Answer:
Such jurisdiction can be acquired by the voluntary appearance of
non-resident defendant who is not found in the Philippines.
Jurisdiction
1997 No. 1:
What courts have jurisdiction over the following cases filed in
Metro Manila?
(a)
An action for specific performance or, in the alternative,
for damages in the amount of P180,000.00
(b)

An action lor a writ of injunction.

(c)
P150,000.00.

An

action

for

replevin

of

motorcycle

valued

at

(d)
An action for interpleader to determine who between the
defendants is entitled to receive the amount of P190,000.00 from the
plaintiff.
(e)
A petition for the probate of a will involving an estate
valued at P200,000.00.
Answer;
(a)
An action for specific performance or, in the alternative,
for damages in the amount of 180,000.00 falls within the jurisdiction of
Metropolitan Trial Courts in Metro Manila. Although 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 jurisdiction of the Metropolitan Trial Courts in Metro
Manila. (Sec. 33 of BP 129 as amended by RA No. 7691: Cruz us. Tan, 87
Phil. 627],
(b)
An action for injunction is not capable of pecuniary
estimation and hence falls within the jurisdiction of the Regional Trial
Courts.

Page 13 of 172

(c) An action for replevin of a motorcycle valued at 150,000.00

falls within the jurisdiction of the Metropolitan Trial Courts in Metro
Manila (Sec. 33 of BP 129. as amended by RA No. 7691).
(d) An action for interpleader to determine who between the
defendants is entitled to receive the amount of P190,000.00 falls within
the jurisdiction of the Metropolitan Trial Courts in MetroManila.
(Id.;Makati Dev Corp. v. Tanjuatco 27 SCRA 401)
(e) A petition for the probate of a will involving an estate
valued at 200.000.00 falls within the Jurisdiction of the Metropolitan
Trial Courts in Metro Manila (Id.: Sec. 19[4] of BP 129, as amended).
Additional Answer;
(b) An application for a writ of preliminary injunction may be
granted by a Municipal Court in an action of forcible entry and unlawful
detainer. (Sec.33 of BP 129; Day vs. RTC of Zamboanga, 191 SCRA610).
Jurisdiction
2002 No. V.
A.
P sued A and B in one complaint in the RTC-Manila, the cause
of action against A being on an overdue promissory note for P300,000.00
and that against B being on an alleged balance of P300,000.00 on the
purchase price of goods sold on credit. Does the RTC-Manila have
jurisdiction over the case? Explain. (3%)
B.
P sued A in the RTC-Manila to recover the following sums:
(1) P200,000.00 on an overdue promissory note, (2) P80,000.00 on the
purchase price of a computer, (3) P150,000.00 for damages to his car and
(4) P100,000.00 for attorneys fees and litigation expenses. Can A move
to dismiss the case on the ground that the court has no jurisdiction
over the subject matter? Explain. (2%)
SUGGESTED ANSWER:
A.
No, the RTC-Manila has no jurisdiction over the case. A and
B could not be joined as defendants in one complaint because the right
to relief against both defendants do not arise out of the same
transaction or series of transactions and there is no common question of
law or fact common to both. (Rule 3, sec. 6). Hence, separate complaints
will have to be files and they would fall under the jurisdiction of the
Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144 SCRA 377
(1986)].
B.
No, because the RTC-Manila has jurisdiction over the subject
matter. P may sue A in one complaint asserting as many causes of action
as he may have and since all the claims are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction.
[Rule 2, sec. 5(d)]. The aggregate amount claimed is P450,000.00,
exclusive of the amount of P100,000.00 for attorneys fees and expenses
of litigation. Hence, the RTC-Manila has jurisdiction.
Jurisdiction
2003 No. II.
A filed with the Metropolitan Trial Court of Manila an action for
specific performance against B, a resident of Quezon City, to compel the
latter to execute a deed of conveyance covering a parcel of land
situated in Quezon City having an assessed value of p19,000.00. B
received the summons and a copy of the Complaint on 02 January 2003. On
10 January 2003, B filed a Motion to Dismiss the Complaint on the ground
of lack of jurisdiction contending that the subject matter of the suit
was incapable of pecuniary estimation. The court denied the motion. In
due time, B filed with the Regional Trial Court a Petition for
Certiorari praying that the said Order be set aside because the
Metropolitan Trial Court had no jurisdiction over the case. 6%

Page 14 of 172

On 13 February 2003, A filed with the Metropolitan Trial Court a

motion to declare B in default. The motion was opposed by B on the
ground that his Petition for Certiorari was still pending.
(a)
correct?
(b)

Was

the

denial

of

the

Motion

to

Dismiss

the

Complaint

Resolve the Motion to Declare the Defendant in Default.

SUGGESTED ANSWER:
(a) The denial of the Motion to Dismiss the Complaint was not
correct. Although the assessed value of the parcel of land involved was
P19,000.00, within the jurisdiction of the Metropolitan Trial Court of
Manila, the action filed by A for Specific Performance against B to
compel the latter to execute a Deed of Conveyance of said parcel of land
was not capable of pecuniary estimation and, therefore, the action was
within the jurisdiction of Regional Trial Court. (Russel v. Vestil, 304
SCRA 738 [1999]; Copioso v. Copioso, G.R. No. 149243, October 28,2002;
Cabutihan v. Landcenter Construction, 383 SCRA 353 [2002]).
ALTERNATIVE ANSWER:
If the action affects title to or possession of real property
then it is a real action and jurisdiction is determined by the assessed
value of the property. It is within the jurisdiction therefore of the
Metropolitan Trial Court.
SUGGESTED ANSWER:
(b) The Court could declare B in default because B did not
obtain a writ of preliminary injunction or a temporary restraining order
from the Regional Trial Court prohibiting the judge from proceeding in
the case during the pendency of the petition for certiorari. (Sec. 7 of
Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002].
ALTERNATIVE ANSWER:
The Court should not declare B in default inasmuch as the
jurisdiction of Metropolitan Trial Court was put in issue in the
Petition For Certiorari filed with the Regional Trial Court. The
Metropolitan Trial Court should defer further proceedings pending the
result of such petition. (Eternal Gardens Memorial Park Corporation v.
Court of Appeals, 164 SCRA 421 [1988]).
Jurisdiction
2004 NO. IV
B. Plaintiff filed a complaint for a sum of money against
defendant with the MeTC-Makati, the total amount of the demand,
exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs, being P1,000,000.
In due time,
defendant filed a motion to dismiss the complaint on the ground of the
MeTCs lack of jurisdiction over the subject matter. After due hearing,
the MeTC (1) ruled that the court indeed lacked jurisdiction over the
subject matter of the complaint; and (2) ordered that the case therefore
should be forwarded to the proper Regional Trial Court immediately.
Was the courts ruling concerning jurisdiction correct?
Was the
courts order to forward the case proper? Explain briefly. (5%)
Jurisdiction; accion publiciana
1992 No. XIV:
While Alfredo was abroad, a parcel of land belonging to him was
intruded into and occupied by Rodrigo on January 1, 1991. When Alfredo
returned on February 1. 1991, he immediately demanded that Rodrigo
vacate the property. When the demand went unheeded, Alfredo prepared a
complaint alleging: that he is the owner of the property which Rodrigo
has intruded into and is occupying; that the intrusion, done with
strategy and stealth, has caused him actual damages of P30,000.00; and
he. therefore, is praying the court to restore him to the possession of

Page 15 of 172

the property, to award him damages, and to further grant him such other
reliefs as may be proper in the premises. The complaint was filed on
March 1, 1991 with the Regional Trial Court which eventually rendered a
decision declaring Alfredo to be the owner of the land, awarding him
damages of P5,000.00, and ordering that possession of the property be
restored to him. Rodrigo appealed to the Court of Appeals where he
questioned the jurisdiction of the Regional Trial Court, pertinently
contending that it was the Municipal Trial Court which had original and
exclusive jurisdiction over the case because (1) it was a forcible entry
case, having been filed within one year from the alleged intrusion; (2)
the intrusion was allegedly done through strategy and stealth which are
hallmarks of a forcible entry case; and (3) the declaration of ownership
was uncalled for since Alfredo did not ask for it.
As counsel for Alfredo, what points will you raise and advance to
rebut the arguments of Rodrigo and to justify the jurisdiction, as well
as the decision of the Regional Trial Court?
Suggested Answer;
As counsel for Alfredo, I would raise the point that the action
was not one of forcible entry, but an accion publiciana or a plenary
action for recovery of possession dejure which is within the
jurisdiction of the Regional Trial Court. Moreover, the claim of actual
damages in the amount of P30,000.00, is not within the jurisdiction of
the Municipal Trial Court. If it were an action of forcible entry, the
damages that could be claimed would be the reasonable compensation for
the use and occupation of the land and the amount thereof could exceed
Twenty
Thousand Pesos.
But damages
other than
the reasonable
compensation for the use and occupation of the premises are not
recoverable in an action of forcible entry, (Reyes us. Court of Appeals.
38 SCRA 138)
With respect to the declaration of ownership, I would argue that
it was correct inasmuch as Rodrigo did not question the ownership of
Alfredo.
Jurisdiction; incapable of pecuniary estimation
2000 No. XVIII-a
(a) A brings an action in the Metropolitan Trial Court of Manila
against B for the annulment of an extrajudicial foreclosure sale of real
property with an assessed value of P50,000.00 located in Laguna. The
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 Regional Trial
Court of Laguna. Decide with reason. (3%)
SUGGESTED ANSWER:
(a) The motion should be granted. The Metropolitan Trial Court
of Manila has no jurisdiction because the action for the annulment of
the extrajudicial foreclosure is not capable of pecuniary estimation and
is therefore under the jurisdiction of the Regional Trial Courts.
(Russell v. Vestil, 304 SCRA 738,[1999]).
However, the action for annulment is a personal action and the
venue depends on the residence of either A or B. Hence, it should be
brought in the Regional Trial Court of the place where either of the
parties resides.
Jurisdiction; incapable of pecuniary estimation
2000 No. XVIII-b
(b) A files an action in the Municipal Trial Court against B,
the natural son of As father, for the partition of a parcel of land
located in Taytay, Rizal with an assessed value of P20,000.00. B moves
to dismiss the action on the ground that the case should have been
brought in the Regional Trial Court because the action is one that is
not capable of pecuntary estimation as it involves primarily a

Page 16 of 172

determination of hereditary rights and not merely the bare right to real
property. Resolve the motion. (2%)
SUGGESTED ANSWER:
(b). The motion should be granted. The action for partition
depends on a determination of the hereditary rights of A and B, which is
not capable of pecuniary estimation. Hence, even though the assessed
value of the land is P20,000.00, the Municipal Trial Court has no
jurisdiction. (Russell v. Vestil, supra)
Jurisdiction; libel
1995 No. 6
Mario, a resident of Quezon City, sued for libel the editor,
publisher and columnist of Ang Bagong Filipino, a newspaper of general
circulation, with principal office at
Binondo, Manila. He claimed that because his reputation had been
badly besmirched by the offensive article he suffered damages estimated
at 1 Million. The case was filed before the Regional Trial Court of
Quezon City.
The accused moved to quash the Information on the ground that the
RTC had no jurisdiction to try the case considering that under Sec. 2 of
RA
7691
Metropolitan
Trial
Courts
exercise
exclusive
original
jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years (of which libel is one) irrespective of the
amount of fine, accessory or other penalties or civil liability arising
from the offense. The accused also claimed that the offensive article
was printed and first published in Manila so that the case should have
been filed with the Metropolitan Trial Court of Manila.
Decide.

Discuss fully. Answer:

The motion to quash should be granted on two grounds, namely:

1.
Since the libelous article was printed and first published
in Manila, the Regional Trial Court of Quezon City has no Jurisdiction
over the offense.
(Art. 360, RPC as amended; Agbayani vs. Sayo, 89
SCRA 699; Soriano us. IAC, 167 SCRA 222)
2.
Since the penalty provided by law for libel does not exceed
six (6) years, the Metropolitan Trial Court of Manila has exclusive
jurisdiction.
Alternative Answer:
Art. 360, RPC as amended, expressly vests the RTC with
jurisdiction over libel cases. This special provision should prevail
over RA. 7691.
Jurisdiction; payment of docket fees
1991 No. V:
A complaint filed for recovery of possession of real property
also prayed for moral and exemplary damages the amounts of which have
been left to the court's discretion, and for actual damages the amount
of which shall be proven at the trial. The docket fees for the action
involving the real property have been paid, but not those for the
related damages, the amounts of which have not been specified.
1. (a) Did the court acquire jurisdiction over the action?
Answer:
1.
(a) Yes, because the docket fees for the action involving
the real property have been paid.
(b) May the action be dismissed?
Answer;
(b) No, because the court has acquired jurisdiction over the
action, However, the claim for damages, as to which no amounts were

Page 17 of 172

specified may be expunged, or the plaintiff may be allowed to amend the

complaint so as to specify the amount of damages and to pay the
requisite fees within the prescriptive period. (Tacay v. RTC, 180 SCRA
433)
2. Is the rule on the payment of docket fees in ordinary civil
actions the same as that for the claim of damages which are impliedly
instituted in criminal cases?
Answer:
2, No, because in criminal cases, docket fees are required to be
paid only if the complaint or information filed in Court for trial
alleges the amount of damages other than actual. (Sec. 1 of Rule 111 as
amended)
Jurisdiction; probate
2001 No. II.
Josefa filed in the Municipal Circuit Trial Court of Alicia and
Mabini, a petition for the probate of the will of her husband, Martin,
who died in the Municipality of Alicia, the residence of the spouses.
The probable value of the estate which consisted mainly of a house and
lot was placed at P95,000.00 and in the petition for the allowance of
the will, attorneys fees in the amount of P10,000.00, litigation
expenses in the amount of P5,000.00 and costs were included. Pedro, the
next of kin of Martin, filed an opposition to the probate of the will on
the ground that the total amount included in the relief of the petition
is more than P100,000.00, the maximum jurisdictional amount for
municipal circuit trial courts. The court overruled the opposition and
proceeded to hear the case.
Was the municipal circuit trial court correct in its ruling? Why?
(5%)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding
to hear the case. It has exclusive jurisdiction in all matters of
probate, both testate and intestate, where the value of the estate does
not exceed P100,000.00 (now (P200,000.00). The value in this case of
P95,000.00 is within its jurisdiction. In determining the jurisdictional
amount, excluded are attorneys fees, litigation expenses and costs;
these are considered only for determining the filing fees. (B.P.Blg.
129, Sec. 33, as amended)
Jurisdiction; replevin
1988 (5)
5.b) Capt. Basaya and 24 sailors are the crew of F/b Caribbean, a
fishing boat chartered and operated since 1977 by Tuna Inc. In 1985,
Tuna Inc. transferred its operation to a sister corporation, Eastship
Corp.
On June 28,1986, Capt. Basaya and his crew informed Eastship that
they would not sail unless their economic demands, which they had
presented previously to Tuna Inc., were granted. Eastship on July 8,
1986 filed with the NLRC in Cebu a petition to declare the strike of
Capt. Basaya and his crew illegal. In turn, the crew filed on August 8,
1986 a complaint for unfair labor practice against Tuna Inc. and
Eastship.
On July 9, 1986, a day after the filing of the illegal strike
complaint, Tuna Inc also sought the remedy of replevin before the RTC
praying that Capt. Basaya and his crew be ordered to deliver the
possession of the vessel to it as their possession was in violation of
its rights.
Which court or tribunal has
possession of the vessel? Explain.

jurisdiction

over

the

issue

of

Answer:

Page 18 of 172

5.b) The RTC has jurisdiction over the issue of possession of the
vessel. The replevin case is not involved in the labor dispute. The
question of who has the better right of possession is outside the
competence of labor tribunals and within the jurisdiction of civil
courts. (Basaya, Jr. Vs. Militante, Dec.11, 1987)
Jurisdiction; unlawful detainer
1988 (1)
Luis is the owner of a 5-door apartment unit 3 doors of which he
has leased to Fe, Garry and Marilou for a monthly rental of P250 per
door. Fe, Garry and Marilou have been his tenants for close to 30 years
at that rate. He occupies the fourth door as his own residence. The
fifth door is vacant. Alleging that he needs to repossess all 3 doors
for the use of his son, Fern, who had recently gotten married, and who
does not allegedly have a residence of his own, he sued, after the
requisite letters to vacate, Fe, Garry and Marilou before the MetroTC
for unlawful detainer. Fe, Garry and Marilou answered the complaint and
set up the defense that ejectment was not proper because the fifth door
was available for Ferns residence. At the trial, they likewise
endeavored to prove that Fern in fact has a residence of his own and
that the suit was Luis mere strategy to force them to agree to a rental
hike of P1,500 a door, in violation of the rental laws. The trial judge,
however, decreed ejectment. On appeal to the RTC, Fe, Garry and Marilou
alleged that the decision was null and void, for lack of jurisdiction,
there having been no prior confrontation among the parties before the
lupong tagapayapa pursuant to PD1508. Luis countered that the
jurisdictional question not having been raised below, it cannot be raise
for the first time on appeal.
1.a) Can Fe, Garry and Marilou validly challenge the jurisdiction
of the MTC? Explain.
1.b) What is the effect of Luis failure to resort
conciliation process before the lupong tagapayapa provided
PD1508? Explain.

to the
for in

Answer:
1.a) No, because lack of prior confrontation among the parties
before the lupong tagapaya pursuant to PD1508 does not affect the
jurisdiction of the MTC over the action for unlawful detainer. (It is
presumed that the complaint was filed within one year from the demand to
vacate.) (Rayales vs. IAC, 127 SCRA 470)
Moreover, by answering the complaint and setting up the defense
without objecting to the jurisdiction of the court, they are estopped
from raising the question of jurisdiction. (Tijam vs, Sibonghanoy, 23
SCRA 29)
1.b) Luis failure to resort to the conciliation process affects
the sufficiency of his cause of action and makes his complaint subject
to dismissal on the ground of lack of cause of action or prematurity.
(Rayales vs. IAC, supra)
Katarungang pambarangay
2001 No. V.
An amicable settlement was signed before a Lupon Tagapamayapa on
January 3, 2001. On July 6, 2001, the prevailing party asked the Lupon
to execute the amicable settlement because of the non-compliance by the
other party of the terms of the agreement. The Lupon concerned refused
to execute the settlement/agreement.
a)
Is
the
Lupon
settlement/agreement? (3%)

correct

in

refusing

to

execute

the

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

Page 19 of 172

a)
Yes, the Lupon is correct in refusing to execute the
settlement/agreement because the execution sought is already beyond the
period of six months from the date of the settlement within which the
Lupon is authorized to execute. (Sec. 417, Local Government Code of
1991)
b)
After the six-month period, the prevailing party should move
to execute the settlement/agreement in the appropriate city or municipal
trial court. (Id.)
Katarungang Pambarangay Law
1995 No. 14:
Alice, a resident of Valenzuela, Metro Manila, filed with the
Metropolitan Trial Court thereat a complaint for damages against her
next-door neighbor Rosa for P100,000.00 with prayer for preliminary
attachment. She alleged that Rosa intrigued against her honor by
spreading unsavory rumors about her among their co-workers at the
Phoenix Knitwear factory located at Valenzuela.
After pre-trial the court motu proprio referred the case for
amicable settlement between the parties to the Lupon Tagapayapa of
Barangay 2, Zone 3. of Valenzuela where the factory is located. Rosa
questioned the order contending that the court had no authority to do so
as both parties had already gone through pre-trial where amicable
settlement was foreclosed and the parties were already going to trial.
1.

Comment on Rosa's contention. Explain.

2.
Rosa also opposed the referral to the Lupon Tagapayapa of
Barangay 2, Zone 3, claiming that the venue was wrong as the proper
Lupon was that of Barangay 1, Zone 5, where she and Alice reside.
Is Rosa's opposition valid? Explain.
3.
Suppose that the Lupon of Barangay 2, Zone 3, is successful
in forging an amicable settlement between Alice and Rosa, is the
compromise immediately executory? Explain.
4.
How, when and by whom shall the compromise agreement be
enforced? Explain.
Answer;
1.
Rosa is not correct. The Local Government Code provides that
in non-criminal cases not falling within the authority of the Lupon, the
court may at any time before trial refer the case to the Lupon concerned
for amicable settlement. (Sec. 408)
2.
No, because the law also provides that the venue of disputes
arising at the workplace of the contending parties shall be brought in
the barangay where such workplace is located. {Sec. 409[d])
3.
No, because any compromise settlement shall be submitted to
the court which referred the case for approval. (Sec. 416).
4.
Upon approval thereof, it shall have the force and effect of
a Judgment of the court and shall be enforced in accordance with Section
6, Rule 39.
Katarungang Pambarangay Law
1999 No. I
a.
What
Pambarangay Law? (2%)

is

the

object

of

the

Katarungang

b.
What is the difference, if any, between the conciliation
proceedings under the Katarungang Pambarangay Law and the negotiations
for an amicable settlement during the pre-trial conference under the
Rules of Court? (2%)
SUGGESTED ANSWER:

Page 20 of 172

a.
The object of the Katarungang Pambarangay Law is to effect
an amicable settlement of disputes among family and barangay members at
the barangay level without judicial recourse and consequently help
relieve the courts of docket congestion. (Preamble of P.D. No. 1508, the
former and the first Katarungang Pambarangay Law.)
b.
The difference between the conciliation proceedings under
the Katarungang Pambarangay Law and the negotiations for an amicable
settlement during the pre-trial conference under the Rules of Court is
that in the former, lawyers are prohibited from appearing for the
parties.
Parties must appear in person only except minors or
incompetents who may be assisted by their next of kin who are not
lawyers.
(Formerly Sec. 9, P.D. No. 1508; Sec. 415, Local Government
Code of 1991, R.A. 7160.) Ho such prohibition exists in the pre-trial
negotiations under the Rules of Court.
RA 3019; mandatory suspension
2001 No. XIX
Governor Pedro Mario of Tarlac was charged with indirect bribery
before the Sandiganbayan for accepting a car in exchange of the award of
a series of contracts for medial supplies. The Sandiganbayan, after
going over the information, found the same to be valid and ordered the
suspension of Mario. The latter contested the suspension claiming that
under the law (Sec. 13 of R.A. 3019) his suspension is not automatic
upon the filing of the information and his suspension under Sec. 13,
R.A. 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967
(R.A. 5185). The Sandilganbayan overruled Marios contention stating
that Marios suspension under the circumstances is mandatory.
Is the courts ruling correct? Why?
SUGGESTED ANSWER:
Yes. Marios suspension is mandatory, although not automatic,
(Sec. 13 of R.A. No. 3019 in relation to Sec. 5 of the Decentralization
Act of 1967 (R.A. No. 5185). It is mandatory after the determination of
the validity of the information in a pre-suspension hearing. [Segovia v.
Sandiganbayan, 288 SCRA 328 (1988) and other cases]. The 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. (Id.)

Civil Procedure
Civil action; claims that survive; money claims
1991 No. X:
A filed a complaint against Y with the RTC of Argao, Cebu, for
payment of a promissory note in the sum of P50,000.00, for liquidated
damages of P5,000.00 and attorney's fees of P5,000.00. After he filed
his answer, Y died, but his lawyer did not file a motion to dismiss. In
the meantime, Y's widow filed with the above court a special proceeding
for the settlement of the intestate estate of Y. The widow, Z. was
appointed the administratrix of the estate. A filed in the civil case a
motion to have Y substituted by the administratrix; the latter did not
object. The court granted the motion. Trial on the merits was had. In
due course, the court rendered a decision in favor of A, At the time it
was rendered, the period to file claims in the intestate estate of Y had
already lapsed. The administratrix. X, did not appeal from the decision;
and after it became final, A moved for the execution of judgment. Z
opposed the motion contending that the decision is void because the
claim does not survive. The case should have been dismissed upon the
death of Y since upon his death, the court lost jurisdiction over the
case.
(a) Rule on the issue.
Answer;

Page 21 of 172

(a)
Since Y died before final judgment in the RTC, the action
for money should have been dismissed and prosecuted as a money claim
against his estate.
However, since the widow, Z, who was appointed
administratrix of the estate, did not object to the trial on the merits
and did not appeal from the decision, she is deemed to have waived the
right to have the claim litigated in the estate proceedings. Moreover,
she is estopped from questioning the court's jurisdiction.
Hence, the
decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126;
Echaus v. Blanco. 179 SCRA 704)
(b)
If the opposition
execution be validly issued?

is

without

merit,

can

the

writ

of

Answer:
(b) No, because a judgment for money cannot be enforced by a writ
of execution against the estate of the deceased which is in custodio
legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)
(c) If it cannot be issued, what is the remedy of A?
Answer;
(c) His remedy is to file a money claim against the estate of Y
based on the judgment. Although the period for filing money claims has
already lapsed, the same may be allowed before an order of distribution
is entered. (Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)
Civil procedure; actionable documents
1987 No (9)
A filed a suit against B and C for the recovery of the personal
property which, according to the complaint, had been sold to him by the
defendants father during latters lifetime under a document entitled
Bill of Sale. The substance of the bill was pleaded in the complaint and
a copy thereof was attached to the complaint as exhibit. B and C filed
an answer which disclaimed knowledge or information bout the Bill of
Sale and averred that the signature thereon allegedly belonging to their
father appears to be a forgery. At the trial of the case, B and C
commenced, through counsel and by means of an expert witness, to adduce
evidence to prove that the sellers signature was a forgery. A objected,
saying that the genuineness and due execution of the Bill of Sale was
deemed admitted because the answer was unverified, as a matter of law,
inasmuch as the verification was made only on the express basis of best
information and belief.
Resolve the objections with reasons.
Answer:
Objection overruled. B and C do not have to deny specifically
under oath the genuineness and due execution of the Bill of Sale since
they do not appear to be a party thereto, the same having been allegedly
executed by their deceased father. (Sec. 8 of Rule 8). Their answer
disclaiming knowledge or information bout the Bill of Sale and averring
that the signature thereon appears to be a forgery is sufficient to put
in issue the genuineness and due execution of said document.
Civil procedure; actionable documents
1990 (7)
In his answer to the complaint, Mario alleged that he does not owe
Norma any sum of money, and that he executed the promissory note only to
enable Norma to show the same to her husband to explain the
disappearance of the amount from the conjugal funds as Norma lost the
same in the casino. The answer is not verified. At the trial, the lawyer
of Norma objected to the testimony of Mario as to his accommodation
story because, as the answer is not verified, he is deemed to have
admitted the genuineness and due execution of the promissory note.
Decide on the objection with reason.

Page 22 of 172

Answer:
Objection overruled. A verified answer is necessary in denying the
genuineness and due execution of the promissory note on which the action
is based. However, the defense of Mario does not dispute the genuineness
or due execution of the promissory note. His defense of want of
consideration, that he executed the promissory not only to enable Norma
to explain the loss of the conjugal funds does not require a verified
answer. (Sec. 8 of Rule 8).
Civil procedure; actionable documents
1991 No. VII:
In an action for collection of P2,000,000.00. plaintiff bank
alleged that defendant Oriental Textile Mills. Inc., for valuable
consideration, executed in favor of the bank a promissory note for said
amount. Defendant filed an answer to the complaint denying liability and
alleging that Jesus Lim had no authority to negotiate and obtain a loan
in its behalf, nor to sign the promissory note. The answer was not
verified. During the trial, defendant sought to introduce evidence to
show that Jesus Lim was not authorized to enter into the transaction and
to sign the promissory note for and in behalf of the defendant
corporation. Plaintiff objected to such evidence, claiming that Lim's
authority had been admitted by defendant's failure to verify the answer.
(a) The judge sustained the objection. Was the ruling correct?
Answer:
(a) Yes. If a copy of the promissory note had been attached to
the complaint or set forth therein, the failure of defendant to deny
specifically under oath the due execution of the promissory note, or to
verify the allegation in its answer that Jesus Lim had no authority to
obtain a loan or to sign the promissory note, constitutes an admission
of the due execution thereof. Hence, defendant's evidence was properly
objected to by plaintiff. [Secs. 7 and 8 of Rule 8; Imperial Textile
Mills, Inc. v. CA, 182 SCRA 584)
(b)
Supposing that no objection was made, trial proceeded, and
judgment was thereafter rendered in favor of the plaintiff.
The latter
filed a motion for execution pending appeal and forthwith filed a bond
in a sum double the amount adjudged. May the court grant the motion
solely on the ground that a bond was filed?
Answer;
(b) No, the mere filing of the bond is not a sufficient good
reason for execution pending appeal. (Roxas v. CA, 157 SCRA 370) Since
no objection was made by plaintiff to defendant's evidence of lack of
authority of Jesus Lim, the same was admissible and constituted a good
defense to plaintiffs action.
Civil procedure; actions that survive
2000 No. I-c
c)
PJ engaged the services of Atty. ST to represent him in a
civil case filed by OP against him which was docketed as Civil Case No.
123. A retainership agreement was executed between PJ and Atty. ST
whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year
and to transfer the ownership of a parcel of land to Atty. ST after
presentation of PJs evidence. PJ did not comply with his undertaking.
Atty. ST filed a case against PJ which was docketed as Civil Case No.
456. During the trial of Civil Case No. 456, PJ died.
i)
Is the death of PJ a valid ground to dismiss the money claim
of Atty. ST in Civil Case No. 456? Explain. (2%)
ii) Will your answer be the same with respect to the real
property being claimed by Atty. ST in Civil Case No. 456? Explain (2%)
SUGGESTED ANSWER:

Page 23 of 172

(c)
(i) No. Under Sec. 20, Rule 3, 1997 Rules of Civil
Procedure, when the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of
final judgment in the court in which the action is pending at the time
of such death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment obtained by
the plaintiff shall be enforced in the manner especially provided in the
Rules for prosecuting claims against the estate of a deceased person.
(ii) Yes, my answer is the same. An action to recover real
property in any event survives the death of the defendant. (Sec. 1, Rule
87, Rules of Court). However, a favorable judgment may be enforced in
accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure)
against the executor or administrator or successor in interest of the
deceased.
Civil procedure; actions that survive; money claims
1992 No. IV:
After termination of trial on the merits, and as the trial Judge
was about to finish his decision dismissing plaintiffs suit for payment
of a purported P369.000.00 loan, the defendant died. His counsel
accordingly filed with the court a notice of defendant's death.
Simultaneously, he moved that plaintiffs suit be dismissed, to be
thereafter pursued as a money claim in the proceeding for the settlement
of defendant's estate. The judge denied the motion to dismiss on the
ground that there is no need for any further proceeding since he is
going to dismiss the case anyway in a forthcoming decision. Three (3)
days later, the decision dismissing the case was promulgated.
Did the judge act correctly? Explain your answer.
Suggested Answer:
No, because in an action for the recovery of money, if the
defendant dies before a final judgment is rendered by the Regional Trial
Court, the action shall be dismissed and prosecuted as a money claim.
(Sec. 21 of Rule 3) The fact that the judge was ready to render a
decision dismissing the case does not prevent the application of the
rule.
Another Acceptable Answer:
Yes, the Judge acted correctly in deciding the case, because the
defendant died after termination of the trial on the merits. To dismiss
the case and require the parties to present their evidence all over
again before the probate court would cause unnecessary expense and
delay. The plaintiff may appeal from the decision and if the judgment is
reversed, the judgment entered would then be filed as a proven money
claim with the probate court.
Civil procedure; amendment of complaint
2003 No. III.
After an answer has been filed, can the plaintiff amend his
complaint, with leave of court, by changing entirely the nature of the
action? 4%
SUGGESTED ANSWER:
Yes, the present rules allow amendments substantially altering
the nature of the cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil
Procedure; Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870
[1997]).
This should only be true, however, when the substantial change or
alteration in the cause of action or defense shall serve the higher
interests of substantial justice and prevent delay and equally promote
the laudable objective of the rules which is to secure a just, speedy
and inexpensive disposition of every action and proceeding. (Valenzuela
v. Court of Appeals, 363 SCRA 779 [2001]).

Page 24 of 172

Civil procedure; amendment of complaint to conform to evidence

1992 No. XII;
A complaint was filed by the counsel for Superior Sales (an
entity without a distinct juridical personality) against Mr. Garcia on a
money claim for goods delivered. Mr. Garcia did not file a motion to
dismiss. Eventually, trial was held and his liability was established
through several Invoices, each of which uniformly showed on its face
that Mr. Tan is the proprietor of Superior Sales. After Superior Sales
had rested its case, Mr. Garcia filed a motion to dismiss on the ground
that, since there is actually no person properly suing as plaintiff, no
relief can be granted by the court. On the other hand, the counsel for
Superior Sales filed a motion to amend the complaint to make it conform
to the evidence, that the real party plaintiff is Mr. Tan. The court
denied said motion on the ground that it was filed too late and instead,
dismissed the case.
Did the court act correctly? Explain.
Suggested Answer:
No, the court erred in denying the motion to amend the complaint
and dismissing the case.
The mistake in the name of the plaintiff (which should have been
Mr. Tan instead of Superior Sales which had no juridical personality)
was cured by the presentation of evidence (without objection) that Mr.
Tan is the proprietor of Superior Sales. Hence the amendment of the
complaint to conform to the evidence was proper, and even if no
amendment was made, it would not affect the result of the trial on the
issue of the real party in interest. (Sec, 5 of Rule 10)
Civil procedure; amendment of complaint to conform to evidence
2004 NO. IV
A. During trial, plaintiff was able to present, without objection
on the part of defendant in an ejectment case, evidence showing that
plaintiff served on defendant a written demand to vacate the subject
property before the commencement of the suit, a matter not alleged or
otherwise set forth in the pleadings on file.
May the corresponding pleading still be amended to conform to the
evidence? Explain. (5%)
Civil procedure; amendment of compromise agreement
1987 No (14)
A and B entered into a compromise to settle a dispute between them
pending in the RTC. Upon their joint motion, the compromise settlement
was approved in an order which also required the parties to comply
faithfully with the terms thereof. Ten (10) days after notice of the
order approving the compromise settlement, A moved for amendment of the
agreement and for the corresponding order amending the previous approval
on the ground that a stipulation in the compromise settlement did not
reflect the true agreement between him and B. B opposed the motion on
the argument that the order approving the compromise agreement was
immediately final and executory because appeal therefrom was not
available inasmuch as approval of the settlement was by joint motion and
the order did not in any way vary the terms thereof.
(a) If you were the trial judge, would you approve the amendment?
Explain.
(b) Suppose the judge were to grant the amendment despite your
opposition, what remedy as counsel for B would you invoke and in what
forum?
Answer:
(a) No. If A can prove at the hearing of his motion to amend the
compromise agreement that the questioned stipulation therein did not

Page 25 of 172

reflect the true agreement between him and B, and substantially affected
the compromise agreement, I would set aside. I would not approve the
amendment without the consent of B.
(b) I will appeal from said order granting the amendment despite
my opposition to the CA on both questions of fact and law or to the SC
on question of law only. While a judgment on compromise is not
appealable, an order denying the motion to set aside the compromise on
the ground of fraud, mistake or duress is appealable. (Reyes vs. Ugarte,
75 Phil. 505). In this case, the judge approved an amendment to the
compromise agreement despite my opposition, and hence the amendment to
the judgment on compromise is appealable.
Another Alternative Answer:
(a) No, because the judgment is already final and executory and
beyond amendment.
Civil procedure; amendment of pleadings
1993 No (4)
In an action for reconveyance of a parcel of land filed in the
RTC, the defendant, through his lawyer, filed and answer therein
admitting the averment in the complaint that the land was acquired by
the plaintiff through inheritance from his parents, the former owners
thereof.
Subsequently, the defendant changed his lawyer and with leave of
court, amended the answer. In the amended answer, the abovementioned
admission no longer appears, instead, the alleged ownership of the land
by the plaintiff was denied coupled with the allegation that the
defendant is the owner of the land for the reason that he bought the
same form the plaintiffs parents during their lifetime.
After trial, the RTC rendered a decision upholding the defendants
ownership of the land.
On appeal, the plaintiff contended that the defendant is bound by
the admission contained in his original answer.
Is the contention of plaintiff correct? Why?
Answer:
No, because pleadings that have been amended disappear from the
record, lose their status as pleadings and cease to be judicial
admissions. While they may nonetheless be utilized as against the
pleader as extrajudicial admissions, they must, in order to have such
effect, be formally offered in evidence.
Alternative Answer:
Yes, because an admission in the original pleadings does cease to
be a judicial admission simply because it was deleted in an amended
pleading. The original answer, although replaced by an amended answer
does not cease to be part of a judicial record, not having been expunged
therefrom.
Civil procedure; amendment of pleadings
1994 No (15)
Michele sued Juliet for reinvindication for the recovery of land.
After the hearing but previous to the rendition of judgment, Michelle
amended her complaint making the principal action one for rescission of
contract. Juliet objected.
If you were the judge, would you allow the amendment?
Answer:
No. I would not allow the amendment because the amendment of the
complaint from recovery of land to one for rescission of contract is a
substantial change in the cause of action which may not be done after
the trial and previous to the rendition of judgment.

Page 26 of 172

Civil procedure; amendment of pleadings

2000 No. XVII.
X, an illegitimate child of Y, celebrated her 18th birthday on
May 2, 1996. A month before her birthday, Y died. The legitimate family
of Y refused to recognize X as an illegitimate child of Y. After
countless efforts to convince them, X filed on April 25, 2000 an action
for recognition against Z, wife of Y. After Z filed her answer on August
14, 2000, X filed a motion for leave to file an amended complaint and a
motion to admit the said amended complaint impleading the three (3)
legitimate children of Y. The trial court admitted the amended complaint
on August 22, 2000. What is the effect of the admission of the amended
complaint? Has the action of X prescribed? Explain. (5%)
SUGGESTED ANSWER:
No. The action filed on April 25, 2000 is still within the fouryear prescriptive period which started to run on May 2, 1996. The
amended complaint impleading the three legitimate children, though
admitted on August 22, 2000 beyond the four-year prescriptive period,
retroacts to the date of filing of the original complaint. Amendments
impleading new defendants retroact to the date of the filing of the
complaint because they do not constitute a new cause of action. (Verzosa
v. Court of Appeals, 299 SCRA 100 [1998]).
(Note: The four-year period is based on Article 285 of the Civil
Code)
ALTERNATIVE ANSWER:
Under the 1997 Rules of Civil Procedure, 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. 5 of Rule 1).
Consequently, the action of X has prescribed with respect to the
three (3) legitimate children of Y who are indispensable parties.
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action must be brought
within the lifetime of X 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 Y. In such case, the action of X has not
prescribed.
However, 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 Y. In such case, the action of
X has prescribed.
Civil procedure; annulment of judgment; rule 45 vs rule 65
1998 No IX.
1.
What are the grounds for the annulment of a judgment of
the Regional Trial Court (RTC)? [2%]
2.
Differentiate certiorari
certiorari as a mode of appeal. |3%]

as

an

original

action

from

SUGGESTED ANSWER:
1.
The grounds for annulment of judgment of the Regional Trial
Court are extrinsic fraud and lack of jurisdiction.
(Sec, 2, Rule
47,
1997 Rules of Civil Procedure.)
2.
Certiorari as an original action and certiorari as a mode
of appeal may be distinguished as follows:
(a)
The first is a special civil action under Rule 65 of the
Rules of Court, while the second is an appeal to the Supreme Court from

Page 27 of 172

the Court of Appeals, Sandiganbayan and the Regional Trial Court under
Rule 45.
(b) The first can be filed only on the grounds of lack or excess
of jurisdiction or grave abuse of discretion tantamount to lack or
excess of jurisdiction, while the second is based on the errors of law
of the lower court.
c) The first should be filed within sixty (60) days from notice
of the judgment, order or resolution sought to be assailed (Sec. 4. Rule
65), while the second should be filed within fifteen (15) days from
notice of the judgment or final order or resolution appealed from, or of
the denial of the petitioner's motion for new trial or reconsideration
filed in due time after notice of the judgment. (Sec. 2, Rule 45, 1997
Rules of Civil Procedure.)
(d) The first cannot generally be availed of as a substitute for
a lost appeal under Rules 40, 41, 42, 43 and 45.
(e)
Under the first, the lower court is impleaded as a party
respondent (Sec. 5 of Rule 65), while under the second, the lower court
is not imp leaded. (Sec. 4 of Rule of 45)
Civil procedure; appeals
2003 No. IV.
Defendant X received an adverse Decision of the Regional Trial
Court in an ordinary civil case on 02 January 2003. He filed a Notice of
Appeal on 10 January 2003. On the other hand, plaintiff A received the
same Decision on 06 January 2003 and, on 19 January 2003, filed a Motion
for Reconsideration of the Decision. On 13 January 2003, defendant X
filed a Motion withdrawing his notice of appeal in order to file a
Motion for New Trial which he attached. On 20 January 2003, the court
denied As Motion for Reconsideration and Xs Motion to Withdraw Notice
of Appeal. Plaintiff A received the Order denying his Motion for
Reconsideration on 03 February 2003 and filed his Notice of Appeal on 05
February 2003. The court denied due course to As Notice of Appeal on
the ground that he period to appeal had already lapsed. 6%
(a) Is the courts denial of Xs Motion to Withdraw Notice of
Appeal proper?
(b)

Is the courts denial of due course to As appeal correct?

SUGGESTED ANSWER:
(a) No, the courts denial of Xs Motion to Withdraw Notice of
Appeal is not proper, because the period of appeal of X has not yet
expired. From January 2, 2003 when X
received a copy of the adverse
decision up to January 13, 2003 when he filed his withdrawal of appeal
and Motion for New
Trial, only ten (10) days had elapsed and he had
fifteen (15) days to do so.
(b) No, the courts denial of due course to As appeal is not
correct because the appeal was taken on time. From January 6, 2003 when
A received a copy of the decision up to January 19, 2003 when he filed a
Motion for Reconsideration, only twelve (12) days had elapsed.
Consequently, he had three (3) days from receipt on February 3, 2003 of
the Order denying his Motion for Reconsideration within which to appeal.
He filed is notice of appeal on February 5, 2003, or only two (2) days
later.
ALTERNATIVE ANSWER:
Since As Motion for Reconsideration was filed on January 19,
2003 and it was denied on January 20,2003, it was clearly not se for
hearing with at least three days notice. Therefore, the motion was pro
forma and did not interrupt the period of appeal which expired on
January 21, 2003 or fifteen (15) days after notice of the decision on
January 6, 2003.
Civil procedure; bill of particulars

Page 28 of 172

2003 No. VII.

(a)

When can a bill of particulars be availed of?

(b)
What is the effect of non-compliance with the order of a
bill of particulars? 4%
SUGGESTED ANSWER:
(a) Before responding to a pleading, a party may move for a bill
or particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his
responsive pleading. If the pleading is a reply, the motion must be
filed within ten (10) days from service thereof. (Sec. 1 of Rule 12)
(b) If the order is not complied with, the court may order the
striking our of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just. (Sec. 4 of Rule
12)
Civil procedure; cause of action
1999 No. II
a.

Distinguish action from cause of action.

(2%)

SUGGESTED ANSWER:
a.
An action 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(A), second par., Rule 1 of the 1997 Rules of Civil
Procedure.) A cause of action is the act or omission by which a party
violates a right of another.
(Sec. 2, Rule 2 of the 1997 Rules) An
action must be based on a cause of action. (Sec. 1, Rule 2 of the 1997
Rules)
Civil procedure; cause of action; joinder
1999 No. IV
a.

What is the rule on joinder of causes of action?

(2%)
b.
A secured two loans from B? one for P500,000.00 and the
other for P1,000,000.00, payable on different dates. Both have fallen
due. Is B obliged to file only one complaint against A for the recovery
of both loans? Explain.
(2%)
SUGGESTED ANSWER:
a.
The rule on joinder of causes of action is that a party
may in one pleading assert, in the alternative or otherwise join as many
causes of action as he may have against an opposing party, provided that
the rule on joinder of parties is complied with;the joinder shall not
include special civil actions or actions governed by special rules, but
may include causes of action pertaining to different venues or
jurisdictions provided one cause of action falls within the jurisdiction
of a Regional Trial Court and venue lies therein; and the aggregate
amount claimed shall be the test of jurisdiction where the claims in all
the causes of action are principally for the recovery of money. (Sec.
5, Rule 2 of the 1997 Rules)
b.
No.
Joinder is only permissive since the loans are
separate loans which may be governed by the different terms and
conditions. The two loans give rise to two separate causes of action and
may be the basis of two separate complaints.
Civil procedure; cause of action; parties
1998 No III
Give the effects of the following:
1.

Splitting a single cause of action: and (3%|

2.

Non-joinder of a necessary party. [2%] SUGGESTED ANSWER:

Page 29 of 172

1.
The effect of splitting a single cause of action is found
in the rule as follows:
If two or more suits are Instituted on the
basis of the same cause of action, the filing of one or a judgment on
the merits in any one is available as a ground for the dismissal of the
others. (Sec. 4 of Rule 2, 1997 Rules of Civil Procedure.)
2.
The effect of the non-joinder of a necessary party may be
stated as follows: The court may order the inclusion of an omitted
necessary party if jurisdiction over his person may be obtained. The
failure to comply with the order for his inclusion without justifiable
cause to a waiver of the claim against such party. The court may proceed
with the action but the judgment rendered shall be without prejudice to
the rights of each necessary party. (Sec. 9 of Rule 3, 1997 Rules of
Civil Procedure.)
Civil procedure; cause of action; splitting a cause of action
1996 No. 3;
1)
The complaint alleged that the defendant acted in bad faith,
arbitrarily, illegally, wrongfully, and in violation of law.
However,
it did not contain any averment of facts showing that defendant's acts
were done in the manner alleged.
Does the complaint state a cause of action? Explain.
2)
X brought an action against Y for the annulment of the sale
of certain shares of stock. After the case was decided in favor of X, he
filed another action for the recovery of the dividends that had already
accrued when the first action was filed.
Is the second action for the recovery of the dividends proper?
Answer:
1) No, because it does not state the ultimate facts constituting
the plaintiffs cause of action. The allegations that the defendant acted
in bad faith, arbitrarily, illegally, wrongfully and in violation of the
law are mere conclusions of fact or conclusions of law, [Remitere vs.
Vda. De Yulo, 16 SCRA 251)
Alternative Answer:
Yes, if the complaint alleges ultimate facts and states that the
acts were done in bad faith, arbitrarily, illegally, wrongfully and in
violation of the law. The rule allows malice, intent, knowledge or other
condition of the mind to be averred generally, (Sec. 5 of Rule 8)
2) No, because the recovery of the dividends is part of the cause
of action for the annulment of the sale of certain shares of stock and
should have been claimed in the first action. The second action
constituted splitting a single cause of action.
Civil procedure; cause of action; splitting a cause of action
1999 No. III
a.
What 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 same? (2%)
b.
A purchased a lot from B for Pl,500,000.00. He gave a
down payment of P500,000, 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. When the note fell due and A failed to pay,
B commenced suit to recover from A the balance of P1,000,000.00. After
securing a favorable judgment on his claim, B brought another action
against A before the same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of bar by prior
judgment.
Rule on the motion.
(2%)
SUGGESTED ANSWER:
a.
The rule against splitting a cause of action and its
effect are that if two or more suits are instituted on the basis of the

Page 30 of 172

same cause of action, the filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of the others. (Sec.
4, Rule 2 of the 1997 Rules)
b.
The motion to dismiss should be granted. When B commenced
suit to collect on the promissory note, he waived his right to foreclose
the mortgage.
B split his cause of action.
Civil procedure; certification against forum shopping
2000 No. II.
As counsel for A, B, C and D, Atty. XY prepared a complaint for
recovery of possession of a parcel of land against Z. Before filling the
complaint, XY discovered that his clients were not available to sign the
certification of non-forum shopping. To avoid further delays in the
filing of the complaint, XY signed the certification and immediately
filed the complaint in court. Is XY justified in signing the
certification? Why? (5%)
SUGGESTED ANSWER:
No. counsel cannot sign the anti-forum shopping certification
because it must be executed by the plaintiff or principal party
himself (Sec. 5, Rule 7. 1997 Rules of Civil Procedure; Excorpizo v.
University of Baguio, 306 SCRA 497, [1999]), since the rule requires
personal knowledge by the party executing the certification, unless
counsel gives a good reason why he is not able to secure his clients
signatures and shows that his clients will be deprived of substantial
justice (Ortiz v. Court of Appeals, 299 SCRA 708, [1998]) or unless he
is authorized to sign it by his clients through a special power of
attorney.
Civil procedure; class suit
1991 No IV:
An airplane carrying 200 passengers crashed somewhere in the
jungles of Agusan. All the passengers and crew perished. Twenty (20)
relatives of the fatalities filed for themselves and in behalf of the
relatives of all those who perished in the mishap a class suit for
damages totalling P5 Million against the airline. The propriety of the
class suit is questioned by the defendant. Resolve the issue.
Answer:
A class suit is not proper in this case because there is no
common or general interest in the subject matter of the controversy.
Each of the plaintiffs has a separate claim for damages. (Newsweek v.
IAC, 142 SCRA 171; Administrative Matter No. 88-1-646-0 on Request of
Plaintiffs, heirs of passengers of the Dona Paz, March 3, 1988.)
Civil procedure; class suit
1994 No (14)
Four hundred residents of Barrio Ramos initiated a class action
suit through Albert, a former mayor of the town, to recover damages
sustained due to their exposure to toxic waste and fumes emitted by the
cooking gas plant of Top Fuel Gas Corporation located in the town.
Is the class suit proper?
Answer:
No. The class suit is not proper. Each plaintiff suffered separate
and distinct damages from their exposure to the toxic waste and fumes
emitted by the cooking gas plant. Each of them has to prove his or her
damages.
Civil procedure; common cause of action; party in default
1995 No. 8:
Jose, Lito and Luis executed a promissory note in favor of
Teresita Comparza which reads: "For value received we promise jointly

Page 31 of 172

and severally to pay Teresita Comparza the sum of P300,000.00 on or

before 31 December 1994." All three signed the note.
Despite demands after due date no payment was made on the note
prompting Teresita to sue the three promissors. Summonses together with
copies of the complaint were served on all of them but only Lito
answered. Upon Tereslta's motion, Jose and Luis were declared in
default.
1. Against whom and upon what basis should the court try the case
considering that only Lito of the three defendants filed an answer and a
default order was issued against Jose and Luis? Discuss fully.
2.
Considering that a defaulted defendant cannot participate in
the trial, can Lito present Luis on the witness stand to testify after
the latter was defaulted? Discuss fully.
3.
Suppose Lito dies and the case is dismissed as against him,
what is the effect of his answer as far as his solidary co-debtors Jose
and Luis are concerned? Discuss fully.
Answer:
1.
Since the complaint states a common cause of action against
the three defendants, the court shall try the case against all upon the
answer filed by Lito and render judgment upon the evidence presented.
(Sec. 4, Rule 18) In this case, the answer of Lito inures to the benefit
of Jose and Luis, unless the defense of Lito is personal to him alone.
2.
There is no provision in the Rules disqualifying parties
declared In default from taking the witness stand for non-disqualified
parties. A party declared in default loses his standing in court, but
this must be understood to mean only the forfeiture of one's rights as a
party litigant. He is not disqualified to be a witness or a deponent in
a case. (Cavili vs. Florendo, 154 SCRA 610)
3. If Lito dies after he has presented evidence, the same inures
to the benefit of Jose and Luis. But if Lito dies before he has
presented evidence, Jose and Luis cannot present such evidence.
Civil procedure; compulsory counterclaim
1994 No (16)
Aya sues Lea for recovery of a tract of land. Lea seeks in turn to
be reimbursed of the value of improvements she had introduced on the
same land and the payment of damages she had sustained. Should Lea file
a separate action against Aya for that purpose?
Answer:
No. Leas claim cannot be made in a separate action. It is a
compulsory counterclaim in the suit filed by Aya against Lea for the
recovery of the land. A compulsory counterclaim is one which arises out
of or is necessarily connected with the transaction or occurrence that
is the subject-matter of the opposing partys claim and does not require
the presence of third parties of whom the court cannot acquire
jurisdiction. If Leas claim is not set up in the suit filed by Aya, the
claim is barred. (Sec. 4, Rule 9)
Alternative Answer:
If Ayas action for recovery of land is one of forcible entry or
unlawful detainer, Leas claim cannot be filed as a counterclaim but
should be filed in a separate action.
Civil procedure; compulsory counterclaim
1996 No. 6:
3)
Plaintiff filed a complaint against defendant for recovery
of possession of real property with the Regional Trial Court of Manila.
Defendant filed an answer with affirmative defenses and interposed a
counterclaim for damages and attorney's fees arising from the filing of
the complaint. When plaintiff failed to file an answer on the

Page 32 of 172

counterclaim,
defendant
moved
to
declare
him
Notwithstanding notice of the motion, plaintiff did
opposition.

in
not

default.
file an

As judge, how would you resolve the motion to declare plaintiff

in default? Explain.
Answer:
3) I would deny the motion. A compulsory counterclaim for damages
and attorney's fees arising from the filing of the complaint raises
issues which are inseparable from those of the complaint and does not
require an answer. [Navorro us. Bella, 102 Phil. 1019) (not in regalado;
modified)
Civil procedure; compulsory counterclaim
2004 NO. IX
A. PX filed a suit for damages against DY.
In his answer, DY
incorporated a counterclaim for damages against PX and AC, counsel for
plaintiff in said suit, alleging in said counterclaim, inter alia, that
AC, as such counsel, maliciously induced PX to bring the suit against DY
despite ACs knowledge of its utter lack of factual and legal basis. In
due time, AC filed a motion to dismiss the counterclaim as against him
on the ground that he is not a proper party to the case, he being merely
plaintiffs counsel.
Is the counterclaim of DY compulsory or not? Should ACs motion
to dismiss the counterclaim be granted or not? Reason. (5%)
Civil procedure; concurrent jurisdiction
1991 No. IX:
(b) Enforcing a writ of execution issued by the Pasig Regional
Trial Court in a civil action, the sheriff attached several pieces of
machinery and equipment found in defendant's place of business. Antonio
Sadalay filed with the sheriff an affidavit of third-party claim stating
that the attached properties belong to him, not to the defendant. If
Sadalay decides to file a separate action in the Regional Trial Court in
Makati to vindicate his claim, may he validly obtain a writ of
injunction from the Makati RTC to enjoin the sale in execution of the
levied properties?
Answer:
(b) Yes, because a judgment rendered in his favor by the Makati
court declaring him to be the owner of the properties levied on would
not constitute interference with the powers or processes of the Pasig
Court which rendered the judgment to enforce the execution. If that is
so, an interlocutory order such as the writ of preliminary injunction
against the sheriff, upon a claim and prima facie showing of ownership,
cannot be considered as such interference. (Abiera v. CA, 45 SCRA 314;
Sy v. Discaya, 161 SCRA 378)
Civil procedure; counterclaim
1999 No. VII
a.

What is a counterclaim?

(2%)

b.

Distinguish a counterclaim from a crossclaim. (2%)

c.
A, who is engaged in tile installation business, was sued
by EE Industries for breach of contract for installing different marble
tiles in its offices as provided in their contract.
Without filing any
motion to dismiss, A filed its Answer with Counterclaim theorizing that
EE Industries has no legal capacity to sue because it is not a duly
registered corporation. By way of counterclaim, A asked 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. The case was dismissed after the trial court found that EE
Industries is not a registered corporation and therefore has no legal

Page 33 of 172

capacity to sue. However, it set a date for the reception of evidence on

A's counterclaim.
EE Industries opposed on the ground that the
counterclaim could no longer be prosecuted in view of the dismissal of
the main case.
Is the stand of EE Industries sustainable? Explain.
[2%]
SUGGESTED ANSWER:
a.
A counterclaim is any claim which a defending party may
have against an opposing party. (Sec. 6, Rule 6 of the 1997 Rules)
b.
A counterclaim is distinguished from a cross-claim in that
a cross-claim is any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein.
A counterclaim is
against an opposing party while a cross-claim is against a co-party.
(Sec. 8, Rule 6 of the 1997 Rules)
c.
No, because if no motion to dismiss has been filed, any
of the grounds for dismissal provided in the Rules may be pleaded as an
affirmative defense in the answer which may include a counterclaim. This
is what A did by filing an Answer alleging the lack of legal capacity of
EE Industries to sue because it is not a duly registered corporation
with a counterclaim for damages. The dismissal of the complaint on this
ground is without prejudice to the prosecution of the counterclaim in
the same action because it is a compulsory counterclaim. (Sec. 6 of Rule
16.)
Civil procedure; counterclaim
2002 No. II.A
A.
The plaintiff sued the defendant in the RTC for damages
allegedly caused by the latters encroachment on the plaintiffs lot. In
his answer, the defendant denied the plaintiffs claim and alleged that
it was the plaintiff who in fact had encroached on his (defendants)
land. Accordingly, the defendant counterclaimed against the plaintiff
for damages resulting from the alleged encroachment on his lot. The
plaintiff filed an ex parte motion for extension of time to answer the
defendants counterclaim, but the court denied the motion on the ground
that it should have been set for hearing. On the defendants motion,
therefore, the court declared the plaintiff in default on the
counterclaim. Was the plaintiff validly declared in default? Why? (5%)
SUGGESTED ANSWER:
A.
No, the plaintiff was not validly declared in default. A
motion for extension of time to file an answer may be filed ex parte and
need not be set for hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
A.
The general rule is that a counterclaim must be answered
within ten (10) days from service. (Rule 11, sec. 4). However, a
counterclaim that raises issues which are deemed automatically joined
by the allegations of the Complaint need not be answered. [Gojo v.
Goyala, 35 SCRA 557 (1970)].
In this case, the defendants counterclaim is a compulsory
counterclaim which arises out or is connected with the transaction and
occurrence constituting the subject matter of the plaintiffs claim. It
raises the same issue of who encroached on whose land. Hence, there was
no need to answer the counterclaim.
Civil procedure; cross-claims
1996 No. 6:
1)
A assembles an owner-type Jeep for B who in turn rents it to
X. Due to faulty brakes, X figures in a vehicular accident causing him
severe injuries. X files an action for damages against A and B.
May
Explain,

file

third-party

complaint

against

for

indemnity?

Page 34 of 172

Answer:
1) No, because what B should file is a crossclaim against his codefendant A,
Civil procedure; cross-claims/third party claims
1997 No. 2:
B and C borrowed P400,000.00 fromA. The promissory note was
executed by B and C in a Joint and several capacity. B, who received the
money from A, gave C P200,000.00. C, in turn, loaned P100,000.00 out of
the P200,000.00 he received to D.
(a)
In an action filed by A against B and C with the Regional
Trial Court of Quezon City, can B file a cross-claim against C for the
amount of P200,000.00?
(b) Can C file a third party complaint against D for the amount
of P 100,000.00?
Answer:
(a)
Yes. B can file a cross-claim against C for the amount of
200,000.00 given to C. A cross-claim is a claim filed by one party
against a co-party arising out of the transaction or occurrence that is
the subject matter of the original action or a counterclaim therein and
may include a claim that the party against whom it is asserted is or may
be liable to the cross-claimant for all or part of a claim asserted
against the cross-claimant. (Sec. 7 of former Rule 6; Sec. 8 of new Rule
6. Rules of Court).
(b) No, C cannot file a third-parly complaint against D because
the loan of P100,000 has no connection with the opponent's claim.
C
could have loaned the money out of other funds in his possession.
Alternative Answer;
(b) X Yes, C can file a third-party complaint against D because
the loan of 100,000.00 was taken out of the P200,000 received from B and
hence the loan seeks contribution in respect to his opponent's claim.
(Sec. 12 of former Rule 6; Sec. 11 of new Rule 6)
Civil procedure; death of a party; effect
1999 No. XVI
a.
What is the effect of the death of a party upon a pending
action? (2%)
b.
When A (buyer) failed to pay the remaining balance of the
contract price after it became due and demand-able, B (seller) sued him
for collection before the RTC. After both parties submitted their
respective evidence, A perished in a plane accident.
Consequently, his
heirs brought an action for the settlement of his estate and moved for
the dismissal of the collection suit.
1.

Will you grant the motion? Explain.

(2%)

2.
Will your answer be the same if A died while the case is
already on appeal to the Court of Appeals? Explain. (2%)
3.
In the same case, what is the effect if B died before the
RTC has rendered judgment? (2%)
SUGGESTED ANSWER:
a. When the claim in a pending action is purely personal, the
death of either of the parties extinguishes the claim and the action is
dismissed. When the claim is not purely personal and is not thereby
extinguished, the party should be substituted by his heirs or his
executor or administrator. (Sec. 16, Rule 3, 1997 Rules) If the action
is for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which
the action was pending at the time of such death, it shall not be
dismissed but shall instead be allowed to continue until entry of final

Page 35 of 172

judgment. A favorable judgment 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. 20, Rule 3, 1997 Rules)
b. 1. No, because the action will not be dismissed but shall
instead be allowed to continue until entry of final judgment. (Id.)
2.
No.
If A died while the case was already on appeal in
the Court of Appeals, the case will continue because there is no entry
yet of final judgment. (Id.)
3.
The effect is the same. The action will not be dismissed
but will be allowed to continue until entry of final judgment. (Id.)
Civil procedure; death of defendant; effect
1998 No VI.
A filed a complaint for the recovery of ownership of land against
B who was represented by her counsel X. In the course of the trial, B
died. However, X failed to notify the court of B's death. The court
proceeded to hear the case and rendered judgment against B. After the
Judgment became final, a writ of execution was issued against C, who
being B's sole heir, acquired the property.
1.
take? [3%]

If you were counsel of C, what course of action would you

2.
Did the failure of counsel X to inform the court of B's
death constitute direct contempt? (2%)
SUGGESTED ANSWER:
1. As counsel of C, I would more to set aside the writ of
execution and the judgment for lack of jurisdiction and lack of due
process in the same court because the judgment to void. If X had
notified the court of B's death, the court would have ordered the
substitution of the deceased by C, the sole heir of B. (Sec. 16 of Rule
3) The court acquired no jurisdiction over C upon whom the trial and the
judgment are not binding. (Ferreira us. Ibarra Vda. de Gonzales, 104
Phil. 143; Vda. de la Cruz vs. Court of Appeals, 88 SCRA 695; Lawas us.
Court of Appeals, 146 SCRA 173.) I could also file an action to annul
the judgment for lack of jurisdiction because C, as the successor of B,
was deprived of due process and should have been heard before judgment.
(Rule 47, 1997 Rules of Civil Procedure.)
ALTERNATIVE ANSWER:
1.
While there are decisions of the Supreme Court which hold
that if the lawyer failed to notify the court of his client's death, the
court may proceed even without substitution of heirs and the judgment is
valid and binding on the heirs of the deceased (Florendo vs. Coloma, 129
SCRA 304 and other cases.), as counsel of C, I will assail the judgment
and execution for lack of due process.
SUGGESTED ANSWER:
2.
No. It is not direct contempt under Sec. 1 of Rule 71,
but it is indirect contempt within the purview of Sec 3 of Rule 71. The
lawyer can also be the subject of disciplinary action. (Sec. 16, Rule 3,
1997 Rules of Civil Procedure.)
Civil procedure; default
1999 No. V
a.

When may a party be declared in default?

(2%)

b.

What is the effect of an Order of Default? (2%)

c.
For failure to seasonably file his Answer despite due
notice, A was declared in default in a case instituted against him by B,
The following day, A's mistress who is working as a clerk in the sala of
the Judge before whom his case is pending, informed him of the
declaration of default. On the same day, A presented a motion under oath

Page 36 of 172

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. Thereafter, he
went abroad.
After his return a week later, with the case still
undecided, he received the order declaring him in default. The motion to
set aside default was opposed by B on the ground that it was filed
before A received notice of his having been declared in default, citing
the rule that the motion to set aside may be made at anytime after
notice but before judgment. Resolve the Motion.
(2%)
SUGGESTED ANSWER:
a.
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 of the 1997 Rules)
b.
The effect of an Order of Default is that the court may
proceed to render judgment granting the claimant such relief as his
pleading may warrant unless the court in its discretion requires the
claimant to submit evidence
(Id.) The party in default cannot take
part in the trial but shall be entitled to notice of subsequent
proceedings. (Sec. 3[A]. Rule 9 of the 1997 Rules)
c. Assuming that the motion to set aside complies with the other
requirements of the rule, it should be granted. Although such a motion
may be made after notice but before judgment (Sec. 3[B] of Rule 9), with
more reason may it be filed after discovery even before receipt of the
order of default.
Civil procedure; default
2000 No. XII.
Defendant was declared in default by the Regional Trial Court
(RTC). Plaintiff was allowed to present evidence in support of his
complaint. Photocopies of official receipts and original copies of
affidavits were presented in court, identified by plaintiff on the
witness stand and marked as exhibits. Said documents were offered by
plaintiff and admitted in evidence by the court on the basis of which
the RTC rendered judgment in favor of the plaintiff, pursuant to the
relief prayed for. Upon receipt of the judgment, defendant appeals to
the Court of Appeals claiming that the judgment is not valid because the
RTC based its judgment on mere photocopies and affidavits of persons not
presented in court.
(a)

Is the claim of defendant valid? Explain. (3%)

(b) Will your answer be the same if 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 Municipal Trial Court on which basis the court rendered judgment in
favor of plaintiff? Explain. (2%)
SUGGESTED ANSWER:
(a) The claim of defendant is not valid because under the 1997
Rules, reception of evidence is not required. After a defendant is
declared in default, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the court
in its discretion requires the claimant to submit evidence, which may be
delegated to the clerk of court. (Sec. 3, Rule 9, 1997 Rules of Civil
Procedure)
ALTERNATIVE ANSWER:
The 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 requirements of
admissibility.
SUGGESTED ANSWER:

Page 37 of 172

(b) The claim of defendant is valid, because although summary

procedure requires merely the submission of position papers, the
evidence submitted with the position paper must be admissible in
evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies
of official receipts and affidavits are not admissible without proof of
loss of the originals. (Sec. 3 of Rule 130)
Civil Procedure; default
2001 No. XX
Mario was declared in default but before judgment was rendered,
he decided to file a motion to set aside the order of default.
a)
What should Mario state in his motion in order to justify
the setting aside of the order of default? (3%)
b)

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

SUGGESTED ANSWER:
a)
In order to justify the setting aside of the order of
default, Mario should state in his motion that his failure to answer was
due to fraud, accident, mistake or excusable negligence and that he has
a meritorious defense. [Sec. 3(b) of Rule 9, 1997 Rules of Civil
Procedure].
b)

The motion should be under oath. (Id.)

Civil procedure; default; remedies

2000 No. I-b
b)
For failure of K.J. to file an answer within the
reglementary period, the Court, upon motion of LM, declared KJ in
default. In due time, KJ filed an unverified motion to lift the order of
default without an affidavit of merit attached to it. KJ 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. Will the motion to lift the order of default prosper? Explain.
(3%)
SUGGESTED ANSWER:
(b) Yes, there is substantial compliance with the rule. Although
the motion is unverified, the answer attached to the motion is verified.
The answer contains what the motion to lift the order of default and the
affidavit of merit should contain, which are the reasons of movants
failure to answer as well as his defenses. (Sec. 3 [b] of Rule 9, 1997
Rules of Civil Procedure; Cf. Citibank, N.A. v. Court of Appeals, 304
SCRA 679, [1999]; Consul v. Consul, 17 SCRA 667, 671 [1966]; Tolentino
v. Carlos, 66 Phil, 1450, 143-144 [1938], Nasser v. Court of Appeals,
191 SCRA 783 [1992]).
Civil procedure; demurrer to evidence
2001 No. XVIII
Carlos filed a complaint against Pedro in the Regional Trial
Court of Ozamis City for the recovery of the ownership of a car. Pedro
filed his answer within the reglementary period. After the pre-trial and
actual trial, and after Carlos has completed the presentation of his
evidence, Pedro moved for the dismissal of the complaint on the ground
that under the facts proven and the law applicable to the case, Carlos
is not entitled to the ownership of the car. The Regional Trial Court
granted the motion for dismissal. Carlos appealed the order of dismissal
and the appellate court reversed the order of the trial court.
Thereafter, Pedro filed a motion with the Regional Trial Court asking
the latter to allow him to present his evidence. Carlos objected to the
presentation of evidence by Pedro.
Should the Regional Trial Court grant Pedros motion to present
his evidence? Why? (5%)
SUGGESTED ANSWER:

Page 38 of 172

No. Pedros motion should be denied. He can no longer present

evidence. The Rules provide that if the motion for dismissal is granted
by the trial court but on appeal the order of dismissal is reversed, he
shall be deemed to have waived the right to present evidence. (Sec. 1 of
Rule 33, Rules of Civil Procedure)
ALTERNATIVE ANSWER
No, because when the appellate court reversed the order of the
trial court it should have rendered judgment in favor of Carlos.
(Quebral v. Court of Appeals, 252 SCRA 353, 1996)
Civil procedure; demurrer to evidence
2003 No. V.
Compare the effects of a denial of demurrer to evidence in a
civil case with those of a denial of demurrer to evidence in a criminal
case. 4%
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a demurrer
to evidence without leave of court. If his demurrer is denied, he has
the right to present evidence. If his demurrer is granted and on appeal
by the plaintiff, the appellate court reverses the order and renders
judgment for the plaintiff, the defendant loses his right to present
evidence. (Rule 33).
In a criminal case, the accused has to obtain leave of court to
file a demurrer to evidence. If he obtains leave of court and his
demurrer to evidence is denied, he has the right to present evidence in
his defense. If his demurrer to evidence is granted, he is acquitted and
the prosecution cannot appeal is granted, he is acquitted and the
prosecution cannot appeal.
If the accused does not obtain leave of court and his demurrer
to evidence is denied, he waives his right to present evidence and the
case is decided on the basis of the evidence for the prosecution.
The court may also dismiss the action on the ground of
insufficiency of the evidence on its own initiative after giving the
prosecution the opportunity to be heard. (Sec. 23 of Rule 119)
Civil procedure; demurrer to evidence
2004 NO. VIII
A. AX, a Makati-bound paying passenger of PBU, a public utility
bus, died instantly on board the bus on account of the fatal head wounds
he sustained as a result of the strong impact of the collision between
the bus and a dump truck that happened while the bus was still
travelling on EDSA towards Makati. The foregoing facts, among others,
were duly established on evidence-in-chief by the plaintiff TY, sole
heir of AX, in TYs action against the subject common carrier for breach
of contract of carriage.
After TY had rested his case, the common
carrier filed a demurrer to evidence, contending that plaintiffs
evidence is insufficient because it did not show (1) that defendant was
negligent and (2) that such negligence was the proximate cause of the
collision.
Should the court grant or deny defendants demurrer to evidence?
Reason briefly. (5%)
Civil procedure; dismissal by the plaintiff
1989 (4)
4.1) Before any answer on motion for summary judgment could be
filed by the defendant, the plaintiff filed notice of dismissal of his
complaint. The trial court simply noted the dismissal. Is the case
considered dismissed?
Answer:

Page 39 of 172

Yes, because the rule merely requires the filing of a notice of

dismissal and does not require the order of the court dismissing the
case. (Sec.1 of Rule 7)
Civil procedure; dismissal by the plaintiff
1996 No 8:
2) X filed an action for reconveyance against Y. Y forthwith
filed his answer and served it on X. A week later, X filed a motion to
withdraw the action since he could not avail the services of counsel.
The court dismissed the complaint based on failure to prosecute. A month
after, X instituted the very same action against Y. Y moved to dismiss
the case invoking res judicata. He alleged that dismissal of the first
case had the effect of an adjudication upon the merits since the court's
order had no condition that it was without prejudice. The court
dismissed the subsequent case on the ground of res judicata.
Was the trial court correct? Explain.
Answer;
2)
No, because the dismissal of the complaint on motion of X is
without prejudice under Sec. 2 of Rule 17. The Court erred in dismissing
the complaint for failure to prosecute for an unreasonable length of
time under Sec. 3 of Rule 17.
Civil procedure; dismissal of action; effect on counterclaim
1996 No. 5:
3) X filed an action for damages against Y arising from the
latter's tortious act. Y filed his answer with a counterclaim for
damages suffered and expenses incurred on account of X's suit.
Thereafter, X moved to dismiss the case since he lost interest in the
case. Y did not object. The court dismissed the action without
prejudice. Y moved the court to set the reception of his evidence to
prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain.
Answer;
3)
I would deny the motion. Inasmuch as Y's counterclaim for
damages incurred on account of X's suit cannot remain pending for
independent adjudication, Y should have objected to the dismissal of the
complaint.
His failure to object deprived him of the right to present
evidence to prove his counterclaim. (Sec. 2 of Rule 17; Ynatorio vs.
Lira, 12 SCRA 369) (alex: rule is otherwise)
Civil procedure; dismissal of actions
1989 (5)
5.2) Agustin, a 21-year old son of the spouses Edgardo and Gloria,
was a paying passenger who suffered serious physical injuries when the
bus he was riding fell off a cliff due to the recklessness of its
driver. The bus belonged to the Inter-City Transit.
The spouses, together with Agustin, sued for damages. After InterCity filed its answer, Agustin, in consideration of P10,000, executed a
Release of Claim. On the basis thereof, Inter-City filed a motion to
dismiss alleging that the claim had already been paid and released.
Plaintiff-spouses opposed the motion and asserted that there son
was totally dependent upon them for support; that his hospitalization
and other medical expenses were shouldered by them; that they were not
even consulted on the Release of Claim; and, that the Released of
Claim could not operate as a valid ground for dismissal because it did
not have the conformity of all the parties since only their son, Agustin
signed it. Decide the motion to dismiss.
Answer:
Motion to dismiss is granted. The contract of carriage is between

Page 40 of 172

Agustin, who was of legal age, and Intr-City Transit. Hence, the
Release of Claim executed by him is valid. (Baliwag Transit vs. CA,
January 31, 1989).
Another Acceptable Answer:
Motion to dismiss is granted only with respect to Agustin. The
parents of Agustin have a cause of action against Inter-City to the
extent of the expenses incurred by them due to the recklessness of the
driver.
Civil procedure; dismissal without prejudice
1989 (4)
4.2) Lawrence filed a complaint against Grace to collect a loan of
P50,000. Later, because of their intimate relationship in the past,
Lawrence filed a notice of dismissal of his complaint. Subsequently, the
two had a serious misunderstanding so that Lawrence again filed a
complaint against Grace to collect another loan of P100,000. Lawrence
and Grace reconciled after which, the former withdraw his complaint
before the latter could file her answer or a motion for summary
judgment. Was the dismissal of the second complaint with or without
prejudice? Explain.
Answer:
The dismissal of the second complain is without prejudice because
it is based on another claim of P100,000. If the dismissal was based on
the same claim of P50,000 it would be with prejudice.
Civil procedure; effect of failure to answer
1989 (17)
17.2) Distinguish between the effects of the failure to file an
answer in civil case governed by the Summary Rules and in civil case
governed by the regular provisions of the Rules of Court.
Answer:
Under Summary Procedure Rules, upon the failure to file an answer
in a civil case, the court, motu propio or upon the motion of the
plaintiff, shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for therein
except as to the amount of damages which the court may reduce in its
discretion. (Sec.5)
Under the regular procedure, upon the failure to file an answer,
the court shall, upon the motion of the plaintiff and proof of such
failure, declare the defendant in default. Thereupon, the court shall
proceed to receive the plaintiffs evidence and render judgment granting
him such relief as the complaint and the facts proven may warrant. Such
judgment shall not exceed the amount or
different in kind from that
prayed for. (Sec.1 and 5 of Rule 18).
Civil procedure; error of judgment vs error of jurisdiction
1989 (10)
10.1) Distinguish
jurisdiction.

between

error

of

judgment

and

error

of

Answer:
An error of judgment is one which the court may commit in the
exercise of its jurisdiction. Such an error does not deprive the court
of jurisdiction and is correctible only by appeal; whereas an error of
jurisdiction is one where the court acts without or in excess of its
jurisdiction. Such an error renders an order or judgment void or
voidable and is correctible by the special civil action of certiorari.
(De la Cruz vs. Moir, 36 Phil. 213; Cochingyan vs. Cloribel, 76 SCRA
361).
Civil procedure; execution of judgments; 5-year period

Page 41 of 172

1997 No. 16:

A. a resident of Dagupan City, secured a favorable judgment in an
ejectment case against X, a resident of Quezon City, from the
Metropolitan Trial Court of Manila. The judgment, entered on 15 June
1991. had not as yet been executed.
(a)
In July 1996, A decided to enforce the judgment of the
Metropolitan Trial Court of Manila. What is the procedure to be followed
by A in enforcing the judgment?
(b)

With what court should A institute the proceedings? Answer:

(a)
A can enforce the judgment by another action reviving the
Judgment because it can no longer be enforced by motion as the five-year
period within which a judgment may be enforced by motion has already
expired. (Sec. 6 of former and new Rule 39).
(b) A may institute the proceedings in the Regional Trial Court
in accordance with the rules of venue because the enforcement of the
Judgment is a personal action Incapable of pecuniary estimation.
Alternative Answer:
(b) A may institute the proceeding in a Metropolitan Trial Court
which has jurisdiction over the area where the real property involved is
situated. (Sec. 1 of Rule 4).
Civil procedure; execution of judgments; effect of death of losing party
1992 No. V:
(a) Plaintiff sued to recover an unpaid loan and was awarded
P333.000.00 by the Regional Trial Court of Manila. Defendant did not
appeal within the period allowed by law. He died six days after the
lapse of the period to appeal. Forthwith, a petition for the settlement
of his estate was properly filed with the Regional Trial Court of
Pampanga where an Inventory of all his assets was filed and correspond
-ingly approved. Thereafter, plaintiff filed a motion for execution with
the Manila court, contending therein that the motion was legally
justified because the defendant died after the Judgment In the Manila
court had become final. Resolve the motion and state your reasons.
Suggested Answer:
a] Motion for execution denied.
Although the defendant died after the Judgment had become final
and executory, it cannot be enforced by a writ of execution against the
estate of the deceased which is in custodia legts. The Judgment should
be filed as a proven money claim with the Regional Trial Court of
Pampanga. (Paredes v. Moya, 61 SCRA 527)
b) Under the same set of facts as (a), a writ of execution was
issued by the Manila court upon proper motion three days after the lapse
of the period to appeal. The corresponding levy on execution was duly
effected on defendant's parcel of land worth P666,000.00 a day before
the defendant died. Would it be proper, on motion, to lift the levy on
defendant's property? State the reasons for your answer.
Suggested Answer:
b) No, since the levy on execution was duly effected on
defendant's parcel of land a day before the defendant died, it was
valid. The land may be sold for the satisfaction of the judgment and the
surplus shall be accounted for by the sheriff to the corresponding
executor or administrator. [Sec. 7-C of Rule 39)
Civil procedure; execution of judgments; examination of defendant
2002 No. I.
The plaintiff, a Manila resident, sued the defendant, a resident
of Malolos Bulacan, in the RTC-Manila for a sum of money. When the
sheriff tried to serve the summons with a copy of the complaint on the

Page 42 of 172

defendant at his Bulacan residence, the sheriff was told that the
defendant had gone to Manila for business and would not be back until
the evening of that day. So, the sheriff served the summons, together
with a copy of the complaint, on the defendants 18-year-old daughter,
who was a college student. For the defendants failure to answer the
complaint within the reglementary period, the trial court, on motion of
the plaintiff, declared the defendant in default. A month later, the
trial court rendered judgment holding the defendant liable for the
entire amount prayed for in the complaint.
A.
After the judgment had become final, a writ of execution was
issued by the court. As the writ was returned unsatisfied, the plaintiff
filed a motion for an order requiring the defendant to appear before it
and to be examined regarding his property and income. How should the
court resolve the motion? (2%)
Civil procedure; Execution of judgments; rights of pledgee
1987 No (3)
A obtained a judgment for money against B. The sheriff enforcing
the corresponding writ went to C who, is the pledgee of a ring B had
given as a security for a loan and insisted on taking possession of the
ring for the purpose of eventually selling it at the execution sale to
satisfy the judgment debt of B to A.
Has
Explain.

the

obligation

to

surrender

the

ring

to

the

sheriff?

Answer:
No. C has no obligation to surrender the ring to the sheriff
because C has the right to retain the ring in his possession until the
loan is paid. (Art. 2098 Civil Code). If the sheriff should take
possession of the ring, C may file a third-party claim.
Civil procedure; execution of judgments; writ of execution
1987 No (13)
A obtained a judgment against B for the payment of money. For
failure to appeal, the judgment became final on July 5, 1975. Writs of
execution were returned unsatisfied, for the sheriff was unable to find
property of B subject to execution. On June 30, 1984, A located some
property of B. Whereupon A immediately filed in July 1984 a motion for
the issuance of an alias writ of execution.
If you were the judge, will you grant the writ? Why?
Answer:
No, because a motion for the issuance of an alias writ of
execution may be granted only within five (5) years from the entry of
the judgment on July 5, 1975. It will be necessary for A to file an
action to enforce or revive the judgment before the lapse of ten (10)
years.
Civil procedure; execution of judgments; writ of execution
1988 (6)
Writ of execution were returned unsatisfied by the sheriff on the
execution of a final judgment rendered in favor of A for a sum of money
against B on June 5, 1983. On June 30, 1988, A found some property in
the name of B so that he immediately filed on July 1, 1988 a motion for
an issuance of an alias writ of execution.
6.a) As the judge, will you grant the writ? Explain.
6.b) May a judgment in a civil case be executed pending appeal?
Explain.
Answer:
6.a) The answer depends on when the judgment was entered. If the
final judgment was entered on June 5, 1983, I will not grant the writ

Page 43 of 172

because more than 5 years had elapsed from the date of entry of
judgment or from the date it became final and executory. However, if
final judgment rendered on June 5, 1983 was entered or became final
executory after July 1, 1983, I would grant the writ. (Sec.6 of Rule

the
the
and
39)

Alternative Answer:
6.a) Since the question did not specify the date when the judgment
was entered, which date of the reckoning of the 5-year period within
which judgment may be executed by motion, the motion may be granted on
the assumption that the entry of judgment was made after July 1, 1983.
In this case, the 5-year period from entry of judgment has not yet
elapsed. Hence, the judgment ccan still be executed by mere motion.
Committees Recommendation:
As the facts of the case given used the word rendered and not
entered, the examinees should not be blamed.
6.b) Yes, upon good reasons to be stated in a special order.
(Sec.2 of Rule 39). The motion for execution pending appeal should be
filed before the perfection of an appeal. (Delgado vs. IAC, 14 SCRA 258)
Other Answer:
6.b) (1) the motion for execution pending appeal may be granted
upon good reasons by the appellate court. (Phil. British Assurance Co.
vs. IAC, 150 SCRA 520).
(2) A judgment in an action for injunction, receivership and
accounting is executory pending appeal, unless otherwise granted by the
court. (Sec.4 of Rule 39)
(3) A judgment rendered against the defendant in an action for
forcible entry or illegal detainer is immediately executory. (Sec.8 of
Rule 70)
Civil procedure; execution of judgments; writ of execution
1993 No (15)
As the decision of the Regional Trial Court became final and
executory n November 15, 1987, plaintiff, the prevailing party, filed a
motion for a writ of execution. The writ of execution was issued on
December 1, 1987.
Pursuant to the writ, the sheriff levied upon the house and lot of
defendant and scheduled the sale thereof for public auction on January
26, 1988. The auction sale was repeatedly postponed upon request of
defendant who, in the meantime, was making partial payment to plaintiff.
The last scheduled auction sale was on November 3,1992 but the
same did not materialize because of the request of the defendant which
was granted by plaintiff on account of the partial payment made by
defendant on the date.
As there still remained an unpaid balance as of July 15, 1993,
plaintiff filed a motion for the issuance of alias writ of execution of
that date. Defendant opposed the motion on the ground that more than
five years had lapsed form the finality of the decision such that
plaintiffs remedy is to file a new action for revival of judgment.
Should the motion for issuance of an alias writ of execution be
granted? Explain.
Answer:
Yes, because the running of the five-year period from
decision became final and executory on November 15,1987,
the judgment could be executed on motion, was interrupted
by the agreement of the parties to suspend enforcement of
on account of partial payments made by defendant.

the date the

within which
or suspended
the judgment

Alternative Answer:

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Since there was already a levy on execution, there was no need for
an alias writ of execution.
Civil procedure; execution of judgments; writ of execution
1995 No. 5:
1.
The lifetime of a writ of execution is sixty (60) days from
its receipt by the officer required to enforce it. Suppose on the 60th
day of the life of the writ the sheriff levied on the property of the
judgment debtor and sold it only a month after. Is the sale valid?
Explain.
2.
A writ of execution was served by a sheriff upon defendant
so that plaintiff may be placed in possession of the property held by
the former. The defendant refused to vacate and surrender the premises
to plaintiff.
Can defendant be held for indirect contempt for
disobedience of, or resistance to a lawful writ issued by the court?
Explain.
3.
Suppose that by virtue of an execution of the judgment in
an ejectment case defendant was successfully ousted from the property in
litigation and plaintiff was lawfully placed in possession thereof, but
seven (7) years later defendant re-entered the property and forcibly
took over possession, can plaintiff move that defendant be declared in
indirect contempt? Explain.
Answer;
1.
The writ of execution may be levied at any time up to and
including the last day of the writ. After the writ has been levied on
the property within the lifetime of the writ, it may be sold thereafter.
(Alagar vs. Pio de Roda, 29 Phil. 129)
Alternative Answer;
The property may even be sold beyond the five-year period within
which the judgment may be executed on motion, but not beyond the tenyear period of prescription of judgments. [Government vs. Echaus, 71
Phil. 318; Jalandoni vs. Philippine National Bank, 105 SCRA 102)
2.
No, because it is the sheriff who must enforce the writ of
execution for the delivery of property by ousting therefrom the person
against whom the judgment is rendered and placing the judgment creditor
in possession. (Sec. 13, Rule 39). The writ of possession was directed
to the Sheriff who was to deliver the property to the plaintiff. The
writ did not command the plaintiff to do anything, hence he could not be
held guilty of indirect contempt. (Barrete vs. Amila, 230 SCRA 219)
3.
Yes, because the defendant violated Sec. 3(b) of Rule 71
when after being ousted from the property in litigation and the
plaintiff was lawfully placed in possession, he re-enters the property
and forcibly took over possession.
Civil procedure; execution pending appeal
2002 No. III B
B.
The trial court rendered judgment ordering the defendant to
pay the plaintiff moral and exemplary damages. The judgment was served
on the plaintiff on October 1, 2001 and on the defendant on October 5,
2001. On October 8, 2001, the defendant filed a notice of appeal from
the judgment, but the following day, October 9, 2001, the plaintiff
moved for the execution of the judgment pending appeal. The trial court
granted the motion upon the posting by the plaintiff of a bond to
indemnify the defendant for damages it may suffer as a result of the
execution. The court gave as a special reason for its order the imminent
insolvency of the defendant.
Is the order of execution pending appeal correct? Why? (5%)
SUGGESTED ANSWER:

Page 45 of 172

B.
No, because awards for moral and exemplary damages cannot be
the subject of execution pending appeal. The execution of any award for
moral and exemplary damages is dependent on the outcome of the main
case. Liabilities for moral and exemplary damages, as well as the exact
amounts remain uncertain and indefinite pending resolution by the Court
of Appeals or Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985);
International School, Inc. v. Court of Appeals, 309 SCRA 474 (1999)].
ALTERNATIVE ANSWER:
B.Yes, because only moral and exemplary damages are awarded in
the judgment and they are not dependent on other types of damages.
Moreover, the motion for execution was filed while the court had
jurisdiction over the case and was in possession of the original record.
It is based on good reason which is the imminent insolvency of
the defendant. (Rule 39, sec. 2)
Civil procedure; failure to tender an issue
2004 NO. VI
B. In his complaint for foreclosure of mortgage to which was duly
attached a copy of the mortgage deed, plaintiff PP alleged inter alia as
follows: (1) that defendant DD duly executed the mortgage deed, copy of
which is Annex A of the complaint and made an integral part thereof;
and (2) that to prosecute his complaint, plaintiff contracted a lawyer,
CC, for a fee of P50,000. In his answer, defendant alleged, inter alia,
that he had no knowledge of the mortgage deed, and he also denied any
liability for plaintiffs contracting with a lawyer for a fee.
Does defendants answer as to plaintiffs allegation no. 1 as well
as no. 2 sufficiently raise an issue of fact? Reason briefly. (5%)
Civil procedure; filing of pleadings; periods
1991 No. VIII:
The defendant in a civil action received a note of the judgment
of the Municipal Trial Court on 10 December.
(a) What is his last day for appealing?
Answer:
(a)

Dec. 26, since the last day. Dec, 25 is a holiday.

(b) Can he validly move for extension of the period for filing a
motion for reconsideration of the decision in view of the Christmas
holidays?
Answer;
(b) No. a motion for extension of time to file a motion for
reconsideration is not allowed. (Habaluyas Ent. v. Jopson, 142 SCRA 208)
(c)

In this case, when will the appeal be deemed perfected?

Answer:
(c) The appeal will be deemed perfected upon the expiration of
the last day to appeal by any party. (Sec. 23 of Interim Rules)
Civil procedure; forum shopping
1996 No. 1:
1) What is forum-shopping? What are the sanctions imposed for its
violation?
Answer;
1) Forum-shopping is the filing of multiple petitions, complaints
or other initiatory pleadings involving the same issues in the Supreme
Court, the Court of Appeals or other tribunals or agencies, with the
result that said courts, tribunals or agencies have to resolve the same
issues.

Page 46 of 172

Any violation thereof shall be a cause for the dismissal of the

complaint, petition, application or other initiatory pleading, upon
motion and after hearing. However, any clearly, wilful and deliberate
forum shopping by any party and his counsel through the filing of
multiple complaints or other initiatory pleadings to obtain favorable
action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of
false certification or non-compliance with the undertakings therein
shall constitute indirect contempt of court, without prejudice to
disciplinary proceedings against the counsel and the filing of a
criminal action against the guilty party, (Circular Nos. 28-91 and 0494)
Civil procedure; intervention
1991 No. IX:
Enforcing a writ of execution issued by the Pasig Regional Trial
Court in a civil action, the sheriff attached several pieces of
machinery and equipment found in defendant's place of business. Antonio
Sadalay filed with the sheriff an affidavit of third-party claim stating
that the attached properties belong to him, not to the defendant.
(a) Can Sadalay intervene in the case and ask the Pasig RTC to
resolve his third-party claim?
Answer:
(a)
No, Sadalay may not intervene in the case because
intervention is allowed only before or during the trial of the case.
In this case there is already a final and executory judgment. (Sec 1 of
Rule 12; Bayer Phils. v. Agana. 63 SCRA 355) However, he may ask the
Pasig RTC to resolve preliminarily whether the sheriff acted rightly or
wrongly in levying execution on the properties in question. (Ong v
Tating, 149 SCRA 265)
Civil procedure; intervention
2000 No. VI.
What are the requisites for an intervention by a non-party in an
action pending in court? (5%)
SUGGESTED ANSWER:
The requisites for intervention are:
(1)

Legal interest in the matter in a controversy; or

(2)

Legal interest in the success of either of the parties; or

(3)

Legal interest against both; or

(4) 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.
(5) Intervention will not unduly delay
adjudication of the rights or original parties;

or

prejudice

the

(6) Intervenors rights may not be fully protected in a separate

proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773 [1995]; Sec. 1, Rule
19, 1997 Rules of Civil Procedure.)
Civil procedure; joinder of action; joinder of parties
1996 No. 4:
1)
parties.

Distinguish joinder of causes of action from joinder of

2)
The complaint filed before
Manila states two (2) causes of action,
and the other for the recovery of
(P100,000.00), both of which arose out of

the Regional Trial Court of

one for recission of contract
One Hundred Thousand Pesos
the same transaction.

Page 47 of 172

Is the joinder of the two (2) causes of action proper? Explain.

3)
A filed an action against B. driver of the truck, C, owner
of said truck, and D, insurer of the truck, for damages when the truck
rammed his car.
A and D entered into a compromise agreement upon an
amount lower than that sued upon by A against all three defendants.
Accordingly, the court dismissed the case against D. B and C moved to
dismiss the case against them on the ground that, being indispensable
parties under a common cause of action, non-inclusion of D would not
make the case prosper.
Are the defendants indispensable parties? How would you resolve
the motion.
Answer;
1) Joinder of causes of action may be made in the same complaint
by one party against another; or by or against several parties. In cases
of joinder of causes of action by one party against another, the
totality of the demand determines the jurisdiction of the court.
But in cases of joinder of causes of action by or against several
parties, the right to relief must arise out of the same transaction or
series of transactions and there must be a common question of fact or
law. If these requisites are present, the totality of the demand
determines the Jurisdiction of the court. (Sec. 6 of Rule 3; Flores vs.
Mallare-Phillips, 144 SCRA 377)
2) Yes, since the first cause of action for rescission of
contract falls within the Jurisdiction of the Regional Trial Court of
Manila, because the subject is not capable of pecuniary estimation, and
the second cause of action for recovery of P100,000.00 is with in the
jurisdiction of a lower court and arose out of the same transaction,
both may be joined in the complaint filed with the Regional Trial Court.
[Sec. 5 of Rule 2)
3} I would
liability of the
the liability of
does not have a
the dismissal of
against B and C.

deny the motion. D is not an indispensable party. The

insurer D is based on the contract of insurance whereas
B and C is based on quasi-delict. Hence, the plaintiff
common cause of action against all the defendants and
the complaint against D will not affect the complaint
(Inson us. Court of Appeals, 239 SCRA 58)

Civil procedure; judgment on the merits; contents

2004 NO. V
A. After plaintiff in an ordinary civil action before the ZZ
Regional Trial Court has completed presentation of his evidence,
defendant without prior leave of court moved for dismissal of
plaintiffs complaint for insufficiency of plaintiffs evidence. After
due hearing of the motion and the opposition thereto, the court issued
an order, reading as follows:
The Court hereby grants defendants
motion to dismiss and accordingly orders the dismissal of plaintiffs
complaint, with the costs taxed against him. It is so ordered.
Is the order of dismissal valid?
appeal? Reason. (5%)

May plaintiff properly take an

Civil procedure; judgment on the pleadings

1993 No (1)
In an action for recovery of a sum of money, the plaintiff averred
in the complaint that on January 15, 1990, the defendant obtained a
loam from the plaintiff in the sum of P100,000.00 which he promised to
pay to the latter on or before July 15, 1990 plus interest thereon at
the rate of 18% per annum from January 15, 1990 until fully paid and
that the aforesaid loan has long been overdue but, despite repeated
demands, the defendant failed and refused, and still fails and refuses
to pay to the plaintiff the aforesaid sum of P100,000.00 and the accrued
interest.

Page 48 of 172

Answering the complaint, the defendant denied the aforequoted

averments and gave the reason for the denial his lack of knowledge or
information sufficient to form a belief as to the truth of said
averments.
What is the effect of such denial? With such form of denial, what
course of action may be availed of by the plaintiff? Explain.
Answer:
The denial of the averments of the complaint claiming lack of
knowledge or information sufficient to form a belief as to the truth of
said averments is not a sufficient specific denial. The allegation in
the complaint, that the defendant obtained a loan from the plaintiff and
failed and refused to pay the same, is so plainly and necessarily within
the defendants knowledge that his claim of ignorance must be palpably
not true.
Since the answer tenders no issue or otherwise admits the material
allegations of the complaint, the plaintiff may properly file a motion
for judgment on the pleadings. (Rule 19).
Civil procedure; judgment on the pleadings
1999 No. VIII
a.

What are the grounds for judgment on the pleadings?

(2%)

b.
A's Answer admits the material allegations of B's
Complaint.
May the court motu proprio
render judgment on the
pleadings? Explain.
(2%)
c.
A brought an action against her husband B for annulment
of their marriage on the ground of psychological incapacity,
B filed
his Answer to the Complaint admitting all the allegations therein
contained. May A move for judgment on the pleadings? Explain.
(2%)
SUGGESTED ANSWER:
a.
The grounds for judgment on the pleadings are where an
answer fails to tender an issue, or otherwise admits the material
allegations of the adverse party's pleading.
(Sec. 1, Rule 34 of the
1997 Rules of Civil Procedure).
b.
No, a motion must be filed by the adverse party. (Sec. 1,
Rule 34 of the 1997 Rules)
The court cannot motu proprio render
judgment on the pleadings.
c.
No, because even if B's answer to A's complaint for
annulment of their marriage admits all the allegations therein
contained, the material facts alleged in the complaint must always be
proved. (Sec. 1 of Rule 34.)
ANOTHER ANSWER:
c. No. The court shall order the prosecutor to investigate
whether or not a collusion between the parties exists, 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[E], Rule 9 of the 1997
Rules) Evidence must have to be presented in accordance with the
requirements set down by the Supreme Court in Republic vs. Court of
Appeals and Molina (268 SCRA 198.)
Civil procedure; kinds of civil actions
1994 No (1)
Distinguish:
1.a) an action in rem from an action quasi in rem.
1.b) An action quasi in rem from an action in personam.
1.c) An action in personam from a personal action.
1.d) An action in rem from a real action.

Page 49 of 172

1.e) A personal action from a

local action.

Answer:
1.a) An action in rem is an action against all who might be minded
to make an objection of any sort against the right sought to be
established, while an action quasi in rem is an action against an
individual although the purpose of the suit is to subject his interest
in a particular property to the obligation or lien burdening the
property.
The judgment rendered in actions in rem binds the whole world,
while the judgment rendered in actions quasi in rem is conclusive only
between the parties.
1.b) An action quasi in rem, as stated, is an action against a
person over a particular property or claims relating thereto, while an
action in personam is an action to establish a claim against a person
with a judgment that binds him personally.
1.c) An action in personam, as stated, is an action against a
person on the basis of his personal liability while a personal action is
an action where the plaintiff seeks the recovery of personal property,
the enforcement or resolution of a contract or the recovery of damages.
1.d) An action in rem is as stated above, while a real action is
an action affecting title to real property or for the recovery of
possession, or for partition or condemnation of, or foreclosure of a
mortgage on, real property. (Rule 4, sec. 2a).
1.e) A personal action is as stated above, while a local action is
that which must be brought in a particular place.
Plaintiff in a personal action may file it in the place where he
resides or where the defendant resides, while in a local action,
plaintiff has no choice except to file the action in the place where the
property is located.
Civil procedure; mandamus
2001 No. III.
Petitioner Fabian was appointed Election Registrar of the
Municipality of Sevilla supposedly to replace the respondent Election
Registrar Pablo who was transferred to another municipality without his
consent and who refused to accept his aforesaid transfer, much less to
vacate his position in Bogo town as election registrar, as in fact he
continued to occupy his aforesaid position and exercise his functions
thereto. Petitioner Fabian then filed a petition for mandamus against
Pablo but the trial court dismissed Fabians petition contending that
quo warranto is the proper remedy.
Is the court correct in its ruling? Why? (5%)
SUGGESTED ANSWER:
Yes, the court is correct in its ruling. Mandamus will not lie.
This remedy applies only where petitioners right is founded clearly in
law, not when it is doubtful. Pablo was transferred without his consent
which is tantamount to removal without cause, contrary to the
fundamental guarantee on non-removal except for cause. Considering that
Pedro continued to occupy the disputed position and exercise his
functions therein, the proper remedy is quo warranto, not mandamus.
{Garces v. Court of Appeals, 259 SCRA 99 (1996)]
ALTERNATIVE ANSWER:
Yes, the court is correct in its ruling. Mandamus lies when the
respondent unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled. (Sec. 2, Rule 65) In
this case, Pablo has not unlawfully excluded Fabian from the Office of
Election Registrar. The remedy of Fabian is to file an action of quo
warranto in his name against Pablo for usurping the office. (Sec. 5,
Rule 66)

Page 50 of 172

Civil procedure; modes of discovery

2000 No. V.
Describe briefly at least five (5) modes of discovery under the
Rules of Court. (5%)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court are:
(1) Deposition. By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the
action, or without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral examination or written
interrogatories. (Sec. 1, Rule 23, 1997 Rules of Civil Procedure.)
(2) Interrogatories to parties. Under the same conditions
specified in section 1 of Rule 23, any party shall file and serve upon
any adverse party written interrogatories regarding material and
relevant facts to be answered by the party served. (Sec. 1, Rule 25,
1997 Rules of Civil Procedure.)
(3) Admission by adverse party. At any time after issues have
been joined, a party may file and serve upon any other party a written
request 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 26, 1997 Rules of Civil
Procedure.)
(4) Production or inspection of documents or things. 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 object or
operation thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil
Procedure.)
Civil procedure; modes of discovery; production and inspection of
documents
2002 No. II B
B.
The plaintiff sued the defendant in the RTC to collect on a
promissory note, the terms of which were stated in the complaint and a
photocopy attached to the complaint as an annex. Before answering, the
defendant filed a motion for an order directing the plaintiff to produce
the original of the note so that the defendant could inspect it and
verify his signature and the handwritten entries of the dates and
amounts.
(1) Should the judge grant the defendants motion for production
and inspection of the original of the promissory note? Why? (2%)
(2) Assuming that an order for production and inspection was
issued but the plaintiff failed to comply with it, how should the
defendant plead to the alleged execution of the note? (3%)
SUGGESTED ANSWER:
B.
(1) Yes, because upon motion of any party showing good
cause, the court in which the action is pending may order any party to
produce and permit the inspection of designated documents. (Rule 27).
The defendant has the right to inspect and verify the original of the
promissory note so that he could intelligently prepare his answer.
(2) The defendant is not required to deny under oath the
genuineness and due execution of the promissory note, because of the
non-compliance by the plaintiff with the order for production and
inspection of the original thereof. (Rule 8, sec. 8).
ALTERNATIVE ANSWER:

Page 51 of 172

B.(2) The defendant may file a motion to dismiss the complaint

because of the refusal of the plaintiff to obey the order of the court
for the production and inspection of the promissory note. [Rule 29 Sec.
3(c)].
Civil procedure; motion execution pending appeal
1990 (10)
In the same case, the trial court rendered judgment against Mario
which was received by defendants lawyer on September 3, 1990 and by
plaintiffs lawyer on September 5, 1990. Mario filed his notice of
appeal on September 18, 1990. On September 19, 1990, Norma filed a
motion for execution pending appeal alleging that the appeal is dilatory
and that Mario has no valid defenses; besides, Norma is already
destitute and needs the money very badly. Mario opposed the motion for
execution pending appeal on the ground that since his appeal had been
perfected on September 18, 1990, the trial court can no longer act on
the said motion.
Decide with reasons.
Answer:
The motion for execution pending appeal filed by Norma was timely
because it was filed before the perfection of the appeal of Mario. The
appeal was perfected upon the expiration of the last day to appeal by
any party. (Sec. 23 of Interim Rules). Hence , the appeal was perfected
on September 20, 1990, which was the last day to appeal by Norma because
her lawyer received copy of the decision on September 5, 1990. (Balgado
vs. IAC 147 SCRA 258)
Civil procedure; motion for execution pending appeal; period
1989 (6)
6.2) In a decision rendered by the RTC, plaintiffs Jose, Benigno
and Nicolas were ordered to surrender the possession of the fishpond
subject matter of the litigation in favor of the defendant Yolando.
Counsel for the plaintiffs received the decision on July 23, 1987, and
appealed from it on the following day, July 24, 1987. Counsel for the
defendant received the decision earlier on July 20, 1987, and filed a
motion for execution pending appeal on July 25, 1987, which the trial
court granted.
Plaintiffs went to the CA questioning the order granting the
execution of judgment. The appellate court nullified the order on the
ground that motion for execution pending appeal was filed July 25, 1987,
or after the appeal had already been perfected. Is the decision of the
CA proper? Explain.
Answer:
No. The time within which the prevailing party may file a motion
for execution pending appeal is before the perfection of the appeal. An
appeal is perfected upon the expiration of the last day of appeal by any
party. The appeal of the plaintiffs, which was filed on July 24, 1987,
was perfected only on August 8, 1987, which was the last day to appeal
by the defendant. Hence the motion for execution pending appeal filed on
July 25, 1987 was filed on time. (Sec.23 of Interim Rules; Delgado vs.
IAC, 147 SCRA 258).
Civil procedure; motion for recon; extension of time
1988 (5)
5.a) The RTC of Manila rendered a judgment for the plaintiff
Antonio and against defendant Benjamin. Defendant Benjamin received the
decision on July 15, 1988. On July 25, 1988, Benjamin filed a motion for
extension of time for 10 days from July 20, 1988, within which to file a
motion for reconsideration. The court failed to act on the motion for
extension but Benjamin filed on August 5, 1988 his motion for
reconsideration within the 10-day extension prayed for.

Page 52 of 172

Antonio, on August 15, 1988, filed a motion for the issuance of a

writ of execution alleging that the judgment had already become final
and executory.
Rule on the motion with reasons.
Answer:
5.a) Motion for execution is granted. A motion for extension of
time within which to fuile a motion for reconsideration is not allowed,
except in the Supreme Court. (Habaluyas Enterprises vs. Japson 142 SCRA
208). Hence, the decision became final and executory on July 30, 1988.
Civil procedure; motion to dismiss; bar by prior judgment
2002 No. VI.
B.
Rolando filed a petition for declaration of the nullity of
his marriage to Carmela because of the alleged psychological incapacity
of the latter.
After trial, the court rendered judgment dismissing the petition
on the ground that Rolando failed to prove the psychological incapacity
of his wife. The judgment having become final, Rolando filed another
petition, this time on the ground that his marriage to Carmela had been
celebrated without a license. Is the second action barred by the
judgment in the first? Why? (2%)
SUGGESTED ANSWER:
B.
No, the second action is not barred by the judgment in the
first because they are different causes of action. The first is for
annulment of marriage on the ground of psychological incapacity under
Article 36 of the Family Code, while the second is for declaration of
nullity of the marriage in view of the absence of a basic requirement,
which is a marriage license. [Arts, 9 & 35(3), Family Code]. They are
different causes of action because the evidence required to prove them
are not the same. [Pagsisihan v. Court of Appeals, 95 SCRA 540 (1980)
and other cases].
Civil procedure; motion to dismiss; condition precedent
1987 No (5)
A and B, brothers and both residents of Marikina, Metro Manila had
opposing and exclusive claims of ownership over a parcel of land located
in Morong, Rizal. They consulted with their uncle and requested him to
try to amicably settle their dispute. The uncle failed, despite earnest
efforts of all concerned to arrive at a compromise. A thereupon filed
suit for title and ownership without, however, bringing the dispute to
the Lupong Tagapayapa, for settlement and without alleging in the
complaint that previous earnest efforts towards a compromise had been
exerted by him but failed. B moved to dismiss on the ground of failure
of the complaint to state a cause of action in that (a) it did not aver
that A had previously taken earnest but futile efforts towards a
compromise and (b) it did not allege that proceedings for settlement had
been filed by the plaintiff before the Lupon but no settlement reached,
both of which, according to B are conditions precedent to a cause of
action in favor of A.
If you were the counsel for A, what steps would you take and what
arguments will you advance to meet the motion to dismiss based on the
asserted.
(a) failure to exert efforts at a compromise; and
(b) failure to observe the Katarungang Pambarangay Law?
Explain.
Answer:
As counsel of A, I would file an opposition to Bs motion to
dismiss by submitting an affidavit of their uncle, or presenting him as
a witness, to show that earnest efforts were made by all concerned to

Page 53 of 172

arrive at a compromise, but without success. I would also argue that

prior recourse to barangay conciliation would have been futile in view
of the failure of the uncle to amicably settle the dispute.
It is not necessary for me to amend the complaint to allege
earnest but futile efforts towards a compromise and prior recourse to
barangay conciliation, because if the defendant does not raise these
grounds in a motion to dismiss or answer, they are deemed waived. (Sec.
2 of Rule 9; Ebel vs. Amin, 135 SCRA 438)
However, Bs motion to dismiss is well-founded because A and B are
both residents of Marikina and prior recourse to the barangay
conciliation is a pre-condition to the filing of As complaint. (Tavora
vs. Veloso, 117 SCRA 613)
Another Alternative Answer:
I would amend my complaint to allege that earnest efforts towards
a compromise have been made but without success, inasmuch as this is a
condition precedent to the existence of a cause of action. (Mendoza vs.
CA, 19 SCRA 756)
Civil procedure; motion to dismiss; no cause of action
1996 No 8:
1) Plaintiff filed a complaint for damages against defendant with
the court. Defendant moved to dismiss the complaint on the ground that
it states no cause of action. The court, after hearing, issued an order
deferring the resolution of the motion to dismiss until the trial since
the ground therefore does not appear to be indubitable.
Do you agree with the ruling of the court? Explain.
Answer;
1)
No, because whether or not the complaint states a cause of
action is clear from the allegations of the complaint and deferring the
resolution of the motion to dismiss because the ground therefore is not
indubitable
is
not proper. (Foster Parents Plan vs. Demetriou, 142
SCRA 505)
Civil procedure; motion to dismiss; no cause of action
1999 No. II
b.
A sued B to recover P500,000 based on a promissory note
due and payable on December 5, 1998. The Complaint was filed on November
30,1998, and summons was served on B on December 7, 1998. B interposes a
motion to dismiss on the ground that the Complaint states no cause of
action. If you were the judge, how would you rule on the motion? (2%)
SUGGESTED ANSWER:
b.
If I were the judge, I would grant the motion on the
ground that the complaint states no cause of action. When the complaint
was filed, the promissory note was not yet due and payable and hence the
complaint was filed prematurely. This defect was not cured by the
service of the summons on the defendant after the date when the
promissory note became due and payable.
Civil Procedure; motion to dismiss; res judicata
1987 No (12)
A, the surviving husband of B, executed in favor of C a deed
entitled Contract of Sale a Retro over a certain of land registered
under the Torrens System in which the owner is described as A, married
to B. Subsequently, A sued C for reformation of the contract, alleging
that what was agreed upon was really a mortgage and not a sale a retro.
As complaint was dismissed for failure to prosecute, however, and the
dismissal became final.
the

A year later, the children of A and B sued C for the annulment of

contract of sale a retro, alleging that the subject land was

Page 54 of 172

acquired by their parents during their marriage, hence, their father had
no right to include in the sale the childrens interest in the property
as heirs of their mother, such children not having consented to the
sale.
C moved to dismiss the complaint on the ground of bar by former
judgment.
Resolve the motion to dismiss. Explain.
Answer:
Motion to dismiss denied. There is no bar by former judgment
because there is no identity of causes of action. The cause of action of
the children of A and B is different from the cause of action of A. A
had no right to sell the parcel of land inasmuch as the same was
conjugal property of A and B. A could legally sell only his conjugal
share of said property and could not legally sell the conjugal share of
his deceased wife which inherited by their children without their
consent.
Civil procedure; motion to dismiss; res judicata
1989 (6)
6.1) Evelyn filed a complaint for a sum of money against Joan but
the complaint was later dismissed for failure to prosecute within a
reasonable length of time. Thereafter, Evelyn filed another case based
on the same facts against Joan. Joan moved to dismiss the same on the
ground that the cause of action is barred by prior judgment (res
judicata). Evelyn opposed the motion claiming that res judicata has not
set in since Joan was not served with summons and the complaint in the
first case was earlier dismissed, so that the trial court never acquired
jurisdiction over her person and consequently, over the case. How would
you decide the motion of Joan? Explain.
Answer:
The motion to dismiss is denied. One of the essential requisites
of res judicata is jurisdiction over the parties. Inasmuch as Joan was
not served with the summons in the first case which was earlier
dismissed, the court did not acquire jurisdiction over her person and,
hence, the dismissal was without prejudice to the filing of another
action against her. (Republic Planters Bank vs. Molina, Sept. 28, 1988)
Civil procedure; motion to dismiss; res judicata
2000 No. IV.
AB, as mother and in her capacity as legal guardian of her
legitimate minor son, CD, brought action for support against EF, as
father of CD and ABs lawfully wedded husband. EF filed his answer
denying his paternity with counterclaim for damages. Subsequently, AB
filed a manifestation in court that in view of the denial made by EF, it
would be futile to pursue the case against EF. AB agreed to move for the
dismissal of the complaint, subject to the condition that EF will
withdraw his counter claim for damages. AB and EF filed a joint motion
to dismiss. The court dismissed the case with prejudice. Later on, minor
son CD, represented by AB, filed another complaint for support against
EF. EF filed a motion to dismiss on the ground of res judicata.
A.
Is res judicata a valid ground for dismissal of the second
complaint? Explain your answer (3%)
B.

What are the essential requisite of res judicata? (2%)

SUGGESTED ANSWER:
(a) No, res judicata is not a defense in an action for support
even if the first case was dismissed with prejudice on a joint motion to
dismiss. The plaintiffs mother agreed to the dismissal of the complaint
for support in view of the defendants answer denying his paternity with
a counterclaim for damages. This was in the nature of a compromise of

Page 55 of 172

the right of support which is prohibited by law. (Art, 2035, Civil Code;
De Asis v. Court of Appeals, 303 SCRA 176 [1999]).
(b)

The essential requisites of res judicata are:

(1)

the judgment or order rendered must be final;

(2) the court rendering the same must have jurisdiction of the
subject matter and of the parties;
(3)

it must be a judgment or order on the merits; and

(4) there must be between the two cased identity of parties,

identity of subject matter, and identity of causes of action. (San Diego
v. Cardona, 70 Phil, 281 [1940])
Civil procedure; motions; 3-day notice rule
1992 No, XV:
In a civil case, plaintiff filed on April 19. 1991, an ex parte
motion for execution of judgment. Upon receiving it. the presiding judge
examined the record and issued on the same day an order granting the
motion since, as stated in his order, "the judgment is now final and
executory because the sheriff's return shows that the decision was
properly served upon the defendant on April 3, 1991, and no appeal was
perfected on time." The defendant then filed a motion to set aside the
order of execution, contending that the order is void on two grounds:
(1) It violates the rule on three-day notice for motions; and (2) the
date of service, April 3. 1991, entered in the sheriffs return is a
typographical error because service was actually made on April 8, 1991,
so that when the court ordered execution on April 19,1991, the decision
was not yet final and executory.
At the hearing of the motion, the defendant cited several cases
on the need to notify the adverse party before a contentious motion can
be resolved. He further argued that the sheriff's return, being hearsay,
has to be confirmed by the sheriff on the witness stand when an entry
therein is assailed, because in that situation the proponent of the
return has the burden of proving Its correctness. This cannot be done
unless the sheriff testifies in court and is correspondingly subjected
to cross-examination. The sheriff was not presented in court as a
witness.
Decide
reasons.

the

motion

to

set

aside

the

order

of

execution,

with

Suggested Answer;
Motion to set aside order of execution denied.
A motion for execution of a final and executory Judgment is not a
contentious motion that requires a three-day notice before resolution.
Such a motion may be granted ex parte. [Far Eastern Surety & Insurance
Co. vs. Hernandez, 67 SCRA 256)
The sheriffs return is a public document made in the performance
of a duty by a public officer and is prima facie evidence of the facts
stated therein. [Sec. 23 of Rule 132) Hence there was no need for the
sheriff to testify unless defendant had presented evidence contradicting
the sheriff's return.
Civil procedure; new-trial; grounds
1998 No XVIII
Give the requisites of:
1.

Newly Discovered Evidence; and [3%]

SUGGESTED ANSWER;
1. The requisites of newly discovered evidence are: (a) the
evidence was discovered after the trial; (b) such evidence could not
have been discovered and produced at the trial with reasonable
diligence; and (c) that it is material, not merely cumulative,

Page 56 of 172

corrobarative or impeaching, and is of such weight that, if admitted,

will probably change the judgment. (Commissioner of Internal Revenue vs.
A. Soriano Corporation, 267 SCRA 313.)
ALTERNATIVE ANSWER:
New and material evidence has been discovered which the accused
could not with reasonable diligence have discovered and produced at the
trial, and which if introduced and admitted, would probably change the
judgment. (Sec. 2[b] of Rule 121.)
Civil procedure; partial summary judgment; when appealable
1987 No (2)
After joinder of issues, the plaintiff moved fro partial summary
judgment, specifically on two of the five causes of action asserted in
the complaint. Despite opposition by the defendant who contended that
the remedy of summary of judgment was not available because there were
genuine issues of fact which could not justifiably be resolved by
affidavits and counter-affidavits, the court rendered a partial summary
of judgment as prayed for. The defendant moved for reconsideration ten
days after notice of the decision, but the motion was denied. In the
same order of denial, the court set for pre-trial conference the three
other causes of action and the defendants counter-claims.
Can the defendant appeal the partial summary of judgment without
awaiting the judgment in the three remaining causes of action? If he
can, when? If he cannot, what is his remedy? Explain.
Answer:
The partial summary judgment is final and appealable without
awaiting the judgment in the three remaining causes of action, if the
following requisites are present:
(1) The two causes of action are separate and independent causes
of action and the defendants counterclaim does not arise out of the
transaction or occurrence which is the subject matter of said causes of
action. In which case, judgment may be rendered pursuant to the rule of
judgment at various stages. (Sec. 5 of Rule 36)
(2) The affidavits, depositions and admissions submitted by the
plaintiff show that, except as to the amount of damages, there is no
genuine issue as to any material fact and the plaintiff is entitled to a
judgment as a matter of law (sec. 3 of Rule 34).
The defendant may appeal within the remaining period or six days
from notice of the decision, since nine days had elapsed when he moved
for reconsideration ten days after notice thereof.
Another Alternative Answer:
The partial summary judgment is interlocutory and hence not
immediately appealable, if the three other causes of action are related
to the two other causes of action subject of the partial summary
judgment and the defendants counterclaim arises out of the same
transaction or occurrence which is the subject matter of the two causes
of action. In such case, the partial summary judgment does not fully
adjudicate the case and a trial is necessary (Sec. 4 of Rule 34).
Moreover, there may be genuine issue of facts that remain to be tried.
Guevarra vs. CA, 124 SCRA 297).
The defendant may wait for the final judgment to be rendered on
all the causes of action and the counterclaim and appeal therefrom
within 15 days from notice thereof. In the event the court orders
execution of its partial summary judgment, the defendant may file a
petition for certiorari to set aside said order.
Civil procedure; permissive counterclaim
1996 No. 5:

Page 57 of 172

1)
A filed an action against B for recovery of possession of
apiece of land. B in his answer specifically denied A's claim and
interposed as counterclaim the amount of P150,000.00, arising from
another transaction, consisting of the price of the car he sold and
delivered to A and which the latter failed to pay.
Is B's counterclaim allowed under the rules? Explain.
Answer;
1)
B's counterclaim is a permissive counterclaim inasmuch as it
arises out of another transaction that is the subject-matter of A's
complaint. It is allowed if it is within the jurisdiction of the court.
(Sec. 8 of Rule 6)
Alternative Answer:
The question does not
the assessed value of the
action may be filed in a
counterclaim of P150,000.00
within its jurisdiction.

state in what court A filed the action. If

property does not exceed P20,000.00, the
Municipal Trial Court, in which case the
may not be allowed inasmuch as it is not

If the assessed value does not exceed P50,000.00, the action may
be filed in a Metropolitan Trial Court, in which case the counterclaim
of P150,000.00 may be allowed inasmuch as it is within its jurisdiction.
(Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50,000.00, the action may be filed
in a Regional Trial Court. If filed in Metro Manila, the counterclaim of
P150,000.00 may not be allowed, but if filed outside Metro Manila, it
may be allowed. (Sec. 19 of BP 129 as amended by RA 7691)
Civil procedure; permissive joinder of parties
1989 (1)
1.2) Marissa brought an action against Dely and Inday in one
complaint before the RTC of Manila. As her first cause of action,
Marissa alleges that Dely purchased from her on various occasions truck
tires worth P12,000 but refused to pay the said amount despite several
demands. As her second cause of action, Marissa alleges that Inday
likewise purchased from her on several occasions truck tires worth
P10,000 but refused to pay the said amount despite repeated demands. The
total amount of Marissas demands against the two is P22,000. Both Dely
and Inday now separately move to dismiss the complaint on the ground
that the RTC has no jurisdiction over the case. How would you resolve
these motions? Explain.
Answer:
I would grant said motions to dismiss, because the totality rule
is subject to the rule on permissive joinder of parties. In this case,
there is misjoinder of parties defendant inasmuch as the claims against
the two defendants are separate and distinct from each other and cannot
be joined in a single complaint. Neither claims falls within the
jurisdiction of the RTC. (Flores vs. Mallare-Philipps, 142 SCRA 377).
Civil procedure; petition for certiorari
2000 No. XV.
AB mortgaged his property to CD. AB failed to pay his obligation
and CD filed an action for foreclosure of mortgage. After trial, the
court issued an Order granting CDs prayer for foreclosure of mortgage
and ordering AB to pay CD the full amount of the mortgage debt including
interest and other charges not later than 120 days from date of receipt
of the Order. AB received the Order on August 10, 1999. No other
proceeding took place thereafter. On December 20, 1999, AB tendered the
full amount adjudged by the court to CD but the latter refused to accept
it on the ground that the amount was tendered beyond the 120-day period
granted by the court. AB filed a motion in the same court praying that
CD be directed to receive the amount tendered by him on the ground that

Page 58 of 172

the Order does not comply with the provisions of Section 2, Rule 68 of
the Rules of Court which give AB 120 days from entry of judgment, and
not from date of receipt of the Order. The court denied his motion on
the ground that the Order had already become final and can no longer be
amended to conform with Section 2, Rule 68. Aggrieved, AB files a
petition for certiorari against the Court and CD. Will the petition for
certiorari prosper? Explain. (5%)
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting CDs prayer for
foreclosure of mortgage and ordering AB to pay CD the full amount of the
mortgage debt including interest and other charges not later than 120
days from receipt of the Order. The court should have rendered a
judgment which is appealable. Since no appeal was taken, the judgment
became final on August 25, 1999, which is the date of entry of judgment.
(Sec 2, Rule 36, 1997 Rules of Civil Procedure)
Hence, AB had up to
December 24, 1999 within which to pay the amount due. (Sec. 2, Rule 68,
1997 Rules of Civil Procedure) The court gravely abused its discretion
amounting to lack or excess of jurisdiction in denying ABs motion
praying that CD be directed to receive the amount tendered.
Civil procedure; petition for certiorari; motion for recon
1996 No. 10:
1)
Is the failure to file a motion for reconsideration in the
lower court as a condition precedent for the granting of the writ of
certiorari or prohibition always fatal? Explain.
Answer:
1)

No, because there are exceptions,

such as the following:

a)
The question of jurisdiction was squarely raised before and
decided by the respondent court.
b)

Public interest Is involved

c)

Case of urgency

d)

Order is patent nullity

e)

Issue is purely of Jaw

f)
Deprivation of right to due process (Cochingyan vs.
Cloribel 76 SCRA 361; Palea us. PAL,
111 SCRA 215)
Civil procedure; petition for relief
2002 No. VII.
A.
May an order denying the probate of a will still be
overturned after the period to appeal therefrom has lapsed? Why? (3%)
SUGGESTED ANSWER:
A.
Yes, an order denying the probate of a will may be
overturned after the period to appeal therefrom has lapsed. A petition
for relief may be filed on the grounds of fraud, accident, mistake or
excusable negligence within a period of sixty (60) days after the
petitioner learns of the judgment or final order and not more than six
(6) months after such judgment or final order was entered [Rule 38,
secs. 1 & 3; Soriano v. Asi, 100 Phil. 785 (1957)]. An action for
annulment may also be filed on the ground of extrinsic fraud within four
(4) years from its discovery, and if based on lack of jurisdiction,
before it is barred by laches or estoppel. (Rule 47, secs. 2 & 3)
Civil procedure; petition for relief; injunction
2002 No. VI.
A.
A default judgment was rendered by the RTC ordering D to
P a sum of money. The judgment became final, but D filed a petition
relief and obtained a writ of preliminary injunction staying
enforcement of the judgment. After hearing, the RTC dismissed

pay
for
the
Ds

Page 59 of 172

petition, whereupon P immediately moved for the execution

judgment in his favor. Should Ps motion be granted? Why? (3%)

of

the

SUGGESTED ANSWER:
A.
Ps immediate motion for execution of the judgment in his
favor should be granted because the dismissal of Ds petition for relief
also dissolves the writ of preliminary injunction staying the
enforcement of the judgment, even if the dismissal is not yet final.
[Golez v. Leonidas, 107 SCRA 187 (1981)].
Civil procedure; pleadings
1992 No III:
Is a "motion to dismiss with counterclaim" sanctioned by the
Rules of Court?
a)

If your answer is YES, state your reasons.

b)
If your answer is NO, give your reasons and state what the
defendant should instead file in court to preserve his counterclaim
while maintaining the ground asserted in his motion to dismiss as an
issue that should be the subject of a preliminary hearing.
Suggested Answer:
No, because a counterclaim is contained in an answer and not in a
motion to dismiss.
What the defendant should do is to plead the ground of his motion
to dismiss (except improper venue) as an affirmative defense in his
answer, together with his counterclaim, and ask for a preliminary
hearing on his affirmative defense as if a motion to dismiss had been
filed. (Sec. 5 of Rule 16)
Civil procedure; pleadings; reply
1996 No. 5:
2)
A sued B for damages. B in his answer alleged as new matter
the issue of prescription. No reply thereto was filed by A.
Can the action be dismissed for failure of A to controvert the
new matter set up by B? Explain.
Answer;
2)
No, because if no reply is filed, all the new matters
alleged in the answer are deemed controverted. (Sec. 11 of Rule 6)
Civil procedure; pleadings; verification
1996 No. 2;
1)

What pleadings are allowed by the rules?

2)

What pleadings must be verified?

3)
pleadings?

What is the significance of a lawyer's signature in the

Answer;
1)
The pleadings allowed by the rules are the complaint, the
answer, the counterclaim, the crossclaim, the reply, the third-party
(fourth-party etc.) complaint. (Sec. 2 of Rule 6)
2)

Those required by law to be verified, such as:

a)

Forcible Entry and Unlawful Detainer. (Sec. 1 of Rule 70)

b) Denial of genuineness and due execution of a written

instrument which is the basis of an action or defense. (Sec. 8 of Rule
8)
c) Denial of allegations of usury. (Sec. 1 of Rule 9)
d)

Petitions for certiorari, prohibition and mandamus. (Rule

65)

Page 60 of 172

e)

Pleadings in Summary Procedure.

3) The signature of a lawyer constitutes a certification by him

that he has read the pleading; that to the best of his knowledge,
information and belief there Is good ground to support it; and that it
is not interposed for delay. (Sec. 5 of Rule 7)
Civil procedure; prejudicial question
2000 No. XIV.
BB files a complaint for ejectment in the Metropolitan Trial
Court on the ground of non-payment of rentals against JJ. After two
days, JJ files in the Regional Trial Court a complaint against BB for
specific performance to enforce the option to purchase the parcel of
land subject of the ejectment case. What is the effect of JJs action on
Bs complaint? Explain. (5%)
SUGGESTED ANSWER;
There is no effect. The ejectment case involves possession de
facto only. The action to enforce the option to purchase will not
suspend the action of ejectment for non-payment of rentals. (Willman
Auto Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
Civil procedure; pre-trial
1989 (3)
3.1) Is pre-trial mandatory in all trial courts? Explain.
Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec.1
of Rule 30). However, in criminal cases, pre-trial may be held only when
the accused and his counsel agree. (Sec.1 of Rule 118).
In summary procedure, a preliminary conference is held in both
civil and criminal cases. (Sec.6 and 13)
3.2) May a party who is present at the pre-trial of a civil case
and assisted by counsel still be declared non-suited or as in default?
Explain.
Answer:
No, because the only ground to declare a party non-suited or
considered as in default at the pre-trial is failure to appear thereat.
(Sec.2 of Rule 20)
Other Acceptable Answers:
(1) A party who refuses to obey an order of the court under the
rules on depositions and discovery may be declared non-suited or as in
default. (Sec.3(c) of Rule 29)
(2) A plaintiff who fails to prosecute may be declared non-suited
or as in default. (Sec.3 of Rule 17)
(3) Under Circular 1-89 on mandatory continuous trial, failure to
file a pre-trial brief is a ground to be declared non-suited or as in
default.
Civil procedure; pre-trial
2001 No. VI.
Lilio filed a complaint in the Municipal Trial Court of Lanuza
for the recovery of a sum against Juan. The latter filed his answer to
the complaint serving a copy thereof on Lilio.
After the filing of the answer of Juan, whose duty is it to have
the case set for pre-trial? Why? (5%)
SUGGESTED ANSWER:
After the filing of the answer of Juan, the PLAINTIFF has the
duty to promptly move ex parte that the case be set for pre-trial. (Sec.

Page 61 of 172

1, Rule18, 1997 Rules of Civil Procedure). The reason is that it is the

plaintiff who knows when the last pleading has been filed and it is the
plaintiff who has the duty to prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to move that
the case be set for pre-trial arises after the reply has been served and
filed.
Civil procedure; pre-trial; effect of absence of parties
1992 No. VI:
At a pre-trial hearing in the Regional Trial Court of which the
plaintiff and the defendant, as well as their respective attorneys of
record were duly notified, only plaintiffs attorney appeared but without
the requisite power of attorney authorizing htm to fully and effectively
represent plaintiff at the pre-trial hearing. Because of the absence of
the defendant and his counsel, plaintiffs attorney moved in open court
to have the defendant declared as in default.
Under the circumstances, what should the court do? Discuss fully.
Suggested Answer:
The court should deny the motion to have the defendant declared
as in default and dismiss the action on the ground that only the
plaintiffs attorney appeared but without the requisite power of attorney
to fully and effectively represent plaintiff at the pre-trial hearing.
[Home Insurance Company us. U.S. Lines Co.. 21 SCRA 865)
Another Acceptable Answer:
Considering the fact that plaintiffs attorney appeared, the court
should make the dismissal without prejudice, or reset the pre-trial
hearing with notice to the parties.
Civil procedure; procedure in CA; reception of evidence
1987 No (6)
An appellant in a civil case pending in the CA filed a motion for
the reception of specified evidence for the purpose of clarifying facts
already in the record in order that the court would be better able to
resolve relevant factual issues raised in the appeal.
Will the motion prosper? Why?
Answer:
No. The CA may receive evidence in appealed cases only when a
motion for new trial on the ground of newly discovered evidence is
granted by it.
Civil procedure; provisional remedies
1996 No. 9:
1)

What is the purpose of provisional remedies?

2)
A sold five thousand piculs of sugar to B, payable on
demand. Upon delivery of the sugar to B, however, the latter did not pay
its purchase price. After the lapse of some time from the date of
delivery of the sugar to B. A brought an action for the recission of the
contract of sale and as incident of this action, asked for the manual
delivery (replevin) of the sugar to him.
May the remedy of replevin prayed for by A be granted? Explain.
3) ABC Cattle Corporation is the holder of a pasture lease
agreement since 1990 covering 1,000 hectares of pasture land surrounded
with fences. In 1992, D was issued a pasture lease agreement covering
930 hectares of land adjacent to ABC's. A relocation survey showed that
the boundaries of D's land extended 580 hectares into ABC's pasture
land. Thereupon, D removed ABC's fence and started to set up his own
boundary fence 580 hectares into ABC's pasture area. As ABC persistently

Page 62 of 172

blocked D's advances into its property, D filed a complaint with

preliminary injunction to enj oin ABC from restricting him in the
exercise of his lease rights.
If you were the judge, would you issue a preliminary injunction?
Explain.
4) In a case for sum of money, the trial court granted ex-parte
the prayer for issuance of a writ of preliminary attachment. The writ
was immediately implemented by the sheriff. The defendant filed a motion
to discharge the writ of preliminary attachment on the ground that it
was issued and implemented prior to service of summons. Plaintiffs
opposed arguing that under the Rules of Court, the writ can be applied
for and granted at the commencement of the action or at any time
thereafter. In any event, plaintiff argues that the summons which was
eventually served cured whatever irregularities that might have attended
the enforcement of the writ.
How would you rule on the conflicting contentions of the parties?
Answer:
1)
The purpose of provisional remedies is to preserve or
protect the rights or interests of the parties during the pendency of
the principal action. (Calo us. Roldan, 76 Phil. 445)
2)
Yes, because A is entitled to recover possession of the
sugar upon the filing of the necessary affidavit and bond in double the
value of the property.
Alternative Answer:
No, because A must state in his affidavit that he is the owner of
the property claimed or entitled to the possession thereof. Upon
delivery of the sugar to B, ownership thereof was transferred to him.
The failure of B to pay the purchase price did not affect the transfer
of ownership. Since A is not the owner of the sugar, replevin should not
be granted.
3)
No, because a preliminary injunction may not be issued to
take property out of the possession and control of one party and place
it in the control of another whose right has not been clearly
established.
4)
The issuance of the writ of preliminary attachment ex-parte
was valid but the implementation thereof was not effective without the
service of summons. The subsequent service of summons did not cure the
irregularities that attended the enforcement of the writ. The writ of
attachment should be re-served after the service of summons.
(Davao
Light and Power Co., Inc. Vs. Court of Appeals, 204 SCRA 343; Onate vs.
Abrogar, 241 SCRA 659)
Civil procedure; provisional remedies
1999 No. XV
a.

What are the provisional remedies under the rules? (2%)

b.

Distinguish attachment from garnishment. (2%)

c.

What is replevin? (2%)

d.
In a case, the property of an incompetent under
guardianship was in custodia legis.
Can it be attached? Explain.
(2%)
e.
May damages be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to him? Explain.
(2%)
f.
Before the RTC, A was charged with rape of his 16-year
old daughter. During the pendency of the case, the daughter gave birth
to a child allegedly as a consequence of the rape. Thereafter, she asked
the accused to support the child, and when he refused, the former filed
a petition for support pendente lite. The accused, however, insists that

Page 63 of 172

he cannot be made to give such support arguing that there is as yet no

finding as to his guilt. Would you agree with the trial court if it
denied the application for support pendente lite? Explain. (2%)
SUGGESTED ANSWER:
a.
The provisional remedies under the rules are preliminary
attachment, preliminary injunction, receivership, replevin, and support
pendente lite. (Rules 57 to 61, Rules of Court).
b.
Attachment and garnishment are distinguished from each
other as follows: Attachment is a provisional remedy that effects a levy
on property of a party as security for the satisfaction of any judgment
that may be recovered, while garnishment is a levy on debts due the
judgment obligor or defendant and other credits, including bank
deposits, royalties and other personal property not capable of manual
delivery under a writ of execution or a writ of attachment.
c.
Replevin 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. Roldan, 76 Phil.
445 [1946])
d.
Although the property of an incompetent under guardianship
is in custodia legis, it may be attached as in fact it is provided that
in such case, a copy of the writ of attachment shall be filed with the
proper court and notice of the attachment served upon the custodian of
such property.
(Sec. 7, last par., Rule 57, 1997 Rules of Civil
Procedure.)
e.
Yes, damages may be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to him. This is
authorized by the Rules. A claim, for damages may be made on account of
improper, irregular or excessive attachment, which shall be heard with
notice to the adverse party and his surety or sureties.
(Sec. 20, Rule
57, 1997 Rules of Civil Procedure; Javellana v. D. O. Plaza Enterprises
Inc., 32 SCRA 281.)
f. No. The provisional remedy of support pen-dente lite may be
granted by the RTC in the criminal action for rape. In criminal actions
where the civil liability includes support for the offspring as a
consequence of the crime and the civil aspect thereof has not been
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. 6 of Rule 61.)
Civil procedure; provisional remedies; attachment
1990 (6)
On June 18, 1989, Mario executed a promissory not for P50,000.00
payable to Norma not later that June 18, 1990. Mario defaulted in the
payment of the promissory note and a collection suit was filed against
him before the RTC of Quezon City.
After the complaint had been filed, Norma discovers that Marios
petition for the issuance of an immigrant visa was approved by the US
Embassy, and that Mario had been disposing of all his properties.
What remedy may be availed of by Norma to protect her interest?
Explain your answer.
Answer:
Norma should file a verified application for the issuance of a
writ of preliminary attachment on the ground that Mario is about to
depart from the Philippines and had been disposing of all his properties
with the intent to defraud his creditors. (Sec. 1(a) and (e) of Rule
57).
Civil procedure; provisional remedies; attachment
1991 No. VI:

Page 64 of 172

Upon failure of X to pay the promissory note for P 100,000.00

which he executed in favor of Y, the latter filed a complaint for a sum
of money with application for the issuance of a writ of preliminary
attachment alleging therein that X is about to dispose of his properties
in fraud of his creditors.
(a) May the court issue the writ immediately upon the filing of
the complaint and before service of summons?
Answer;
(a) Yes, because Sec. 1 of Rule 57 provides that a writ of
preliminary attachment may be obtained at the commence-ment of the
action.
Another Answer;
In the case of Sievert v. CA, 168 SCRA692, it was ruled that a
hearing on the application for a writ of preliminary attachment may not
be held without prior service of summons.
(b)
If service of summons is indispensable before the writ may
be issued, is hearing on the application necessary?
Answer;
(b) No, because a writ of preliminary attachment may be issued
ex-parte. (Toledo v. Judge Burgos, 164 SCRA 513; Cosiquien v. CA. 188
SCRA 619}
(c) If the writ was issued and X filed a motion to quash the
attachment, may the motion be granted ex-parte?
Answer:
(c) No, because whether the basis of the motion to quash the
attachment is a cash deposit or counterbond on the ground that the same
was improperly or irregularly issued, a hearing is necessary. (Secs. 12
and 13 of Rule 57; Mindanao Savings & Loan Association v. CA, 172 SCRA
480)
Civil procedure; provisional remedies; attachment
1993 No (14)
On May 2, 1992, Precision, Inc. filed a verified complaint for
recovery of a sum of money against Summa, Inc. The complaint contained
an ex-parte application for a writ of preliminary attachment.
On May 3, 1993, the trial court issued an order granting the exparte application and fixing the attachment bond at P2 Million.
On May 8, 1992, the attachment bond having been submitted by
Precision, Inc. the writ of preliminary attachment was issued.
On May 9,1992, summons together with a copy of the complaint, the
writ of preliminary attachment and a copy of the attachment bond, was
served on Summa, Inc., and pursuant to the writ, the sheriff attached
properties belonging to Summan, Inc.
On July 6, 1992, Summa, Inc. filed a motion to discharge the
attachment for alleged lack of jurisdiction to issue the same because,
at the time the order of attachment and the writ of preliminary
attachment were issued (on May 3, and 8, 1992, respectively), the court
has not yet acquired jurisdiction over the person of Summa, Inc. It
argued that a writ of preliminary attachment may not issue ex-parte
against a defendant before acquisition of jurisdiction over the latters
person by service of summons or his voluntary submission to the courts
authority.
Should the motion be granted? Why?
Answer:
No. because a writ of preliminary attachment may be issued exparte against a defendant before acquisition of jurisdiction over the

Page 65 of 172

latters person by service of summons or his voluntary submission the

Courts authority. Sec. 1 of Rule 57 provides that the remedy may be
granted at the commencement of the action or at any time thereafter.
However, the writ does not bind and affect the defendant until and
unless jurisdiction over his person is eventually obtained by the court.
Hence, when the summons, together with a copy of the complaint, the writ
of preliminary attachment and a copy of the attachment bond, was served
on the defendant, the sheriff validly attached properties belonging to
Summa, Inc.
Civil procedure; provisional remedies; attachment
2002 No. III A
A.
The plaintiff obtained a writ of preliminary attachment upon
a bond of P1 million. The writ was levied on the defendants property,
but it was discharged upon the posting by the defendant of a counterbond
in the same amount of P1 million. After trial, the court rendered
judgment finding that the plaintiff had no cause of action against the
defendant and that he had sued out the writ of attachment maliciously.
Accordingly, the court dismissed the complaint and ordered the plaintiff
and its surety to pay jointly to the defendant P1.5 million as actual
damages, P0.5 million as moral damages and P0.5 million as exemplary
damages.
Evaluate the soundness of the judgment from the point of view of
procedure. (5%)
SUGGESTED ANSWER:
A.
The judgment against the surety is not sound if due notice
was not given to him of the applicant for damages. (Rule 57, sec. 20)
Moreover, the judgment against the
amount of its counterbond of P1 million.

surety

cannot

exceed

the

Civil procedure; provisional remedies; attachment; injunction

2001 No. XII.
a)
May a writ of preliminary attachment be issued ex-parte?
Briefly state the reason(s) for your answer. (3%)
b)
Why? (3%)

May a writ of preliminary injunction be issued ex-parte?

SUGGESTED ANSWER:
a)
Yes, an order of attachment may be issued ex-parte or upon
motion with notice and hearing. (Sec. 2 of Rule 57, Rules of Civil
Procedure) The reason why the order may be issued ex parte is: that
requiring notice to the adverse party and a hearing would defeat the
purpose of the provisional remedy and enable the adverse party to
abscond or dispose of his property before a writ of attachment issues.
(Mindanao Savings and Loan Association, Inc. v. Court of Appeals, 172
SCRA 480).
b)
No, a writ of preliminary injunction may not be issued ex
parte. As provided in the Rules, no preliminary injunction shall be
granted without hearing and prior notice to the party or person sought
to be enjoined. (Sec. 5 of Rule 58, 1997 Rules of Civil Procedure) The
reason is that a preliminary injunction may cause grave and irreparable
injury to the party enjoined.
Civil procedure; provisional remedies; injunction
2003 No. XI.
Can a suit for injunction be aptly filed with the Supreme Court
to stop the President of the Philippines from entering into a peace
agreement with the National Democratic Front? (4%)
SUGGESTED ANSWER:

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No, a suit for injunction cannot aptly be filed with the Supreme
Court to stop the President of the Philippines from entering into a
peace agreement with the National Democratic Front, which is a purely
political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The
President of the Philippines is immune from suit.
Civil procedure; provisional remedies; preliminary attachments
1988 (7)
C, with D as bondsman, secured the attachment of the properties of
defendant, X, who by filing a counterbond, had the attachment dissolved.
Defendant X after judgment rendered in his favor now holds D
liable on his bond for the damages he (X) suffered for the unwarranted
suit and the wrongful and malicious attachment.
D moves to dismiss the damage suit on the ground that the
dissolution of the attachment rendered the attachment bond void and
ineffective under Sec.12 of Rule 57, which provides that upon the filing
of the counterbond, the attachment is discharged or dissolved.
(a) Decide the case with reason.
(b) Who may issue an order of attachment and what are the contents
of such order?
Answer:
(a) If the claim for damages was made in the same action before
the judgment became final and executory, I would deny the motion to
dismiss the claim for damages, because the dissolution of the attachment
by the filing of a counterbond does not invalidate the attachment bond,
which remains liable for damages suffered by reason of the wrongful
attachment. (Calderon vs. IAC, Nov. 11, 1987).
However, if the claim for damages was made in a separate action
(which the question seems to imply because of the word damage suit), I
would grant the motion to dismiss, because such a claim can only be made
in the same action. (Sec. 20 of Rule 57; Pioneer Insurance and Surety
vs. Hontanosas, 78 SCRA 447).
(b) An order of attachment may be granted by the judge of any
court in which the action is pending, or by a Justice of the CA or the
SC, and must require the sheriff or other proper officer of the province
to attach all the property of the party against whom it is issued within
the province not exempt from execution, or so much thereof as may be
sufficient to satisfy the applicants demand, the amount of which must be
stated in the order, unless such party makes deposits or gives bond as
herein after provided in an amount sufficient to satisfy such demand,
besides costs, or in an amount equal to the value of the property which
is about to be attached. Several order may be issued at the same time to
the sheriffs or other proper officers of different provinces. (Sec. 2 of
Rule 57)
Civil procedure; provisional remedies; receivership
2001 No. XIII.
Joaquin filed a complaint against Jose for the foreclosure of a
mortgage of a furniture factory with a large number of machinery and
equipment. During the pendency of the foreclosure suit, Joaquin learned
from reliable sources that Jose was quietly and gradually disposing of
some of his machinery and equipment to a businessman friend who was also
engaged in furniture manufacturing such that from confirmed reports
Joaquin gathered, the machinery and equipment left with Jose were no
longer sufficient to answer for the latters mortgage indebtedness. In
the meantime judgment was rendered by the court in favor of Joaquin but
the same is not yet final.
Knowing what Jose has been doing. If you were Joaquins lawyer,
what action would you take to preserve whatever remaining machinery and
equipment are left with Jose? Why? (5%)

Page 67 of 172

SUGGESTED ANSWER:
To preserve whatever remaining machinery and equipment are left
with Jose, Joaquins lawyer should file a verified application for the
appointment by the court of one or more receivers. The Rules provide
that receivership is proper in an action by the mortgagee for the
foreclosure of a mortgage when it appears that the property is in danger
of being wasted or dissipated or materially injured and that its value
is probably insufficient to discharge the mortgage debt. (Sec. 1
of
Rule 59, 1997 Rules of Civil Procedure).
Civil procedure; provisional remedies; special civil action; replevin vs
foreclosure
1989 (8)
8.1) Mia obtained a loan to buy machineries for her garment
business. She executed a chattel mortgage over said machineries. Due to
business reverses, she defaulted in the payment of her obligation.
Mario, the mortgagee, sought the delivery of the machineries so that
they can be sold at the foreclosure sale but Mia refused, contending
that it would result in the stoppage of her business. Mario seeks your
advice regarding his problem. What is legal opinion on the matter?
Answer:
I would advise Mario either to file an action for the recovery of
said machineries with an application for a writ of replevin or delivery
of personal property upon the filing of the bond double the value
thereof as a preliminary step to an extrajudicial foreclosure, or to
file an action of judicial foreclosure of chattel mortgage. (Northern
Motors vs. Herrera, 49 SCRA 392; Rule 60; Sec.8 of Rule 68). Inasmuch as
Mia executed a chattel mortgage over said machineries, she would be
estopped from opposing the writ of replevin on the ground that only
personal property may be subject thereof. (Makati Leasing and Finance
Corp. vs. Wearever Textile Mills, Inc., 122 SCRA 296)
Civil procedure; provisional remedies; support
2001 No. X.
Modesto was accused of seduction by Virginia, a poor, unemployed
young girl, who has a child by Modesto. Virginia was in dire need of
pecuniary assistance to keep her child, not to say of herself, alive.
The 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 take two
long years because of the heavily clogged court calendar before the
judgment may be rendered.
If you were the lawyer of Virginia, what action should you take
to help Virginia in the meantime especially with the problem of feeding
the child? (5%)
SUGGESTED ANSWER:
To help Virginia in the meantime, her lawyer should apply for
support pendente lite as provided in the Rules. In criminal actions
where the civil liability included support for the offspring as a
consequence 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. 6 of Rule 61, 1997 Rules of Civil Procedure)
Civil procedure; provisional remedies; TRO
1988 (19)
(a) What is a Temporary Restraining Order (TRO)?
(b) How does it differ from a writ of preliminary injunction?
(c) What is the duration of a TRO issued by (I) RTC, (ii) CA, and
(iii) the SC?

Page 68 of 172

Answer:
(a) A Temporary Restraining Order is the order to maintain the
subject of the controversy in status quo until hearing for the
application for preliminary injunction can be held. (Board of
Transportation vs. Castro 125 SCRA 410)
(b) A Writ of Preliminary Injunction cannot be granted without
notice to the defendant or adverse party, whereas a TRO maybe issued if
it shall appear from the facts shown by affidavits or by the verified
complaint that great and irreparable injury would result to the
applicant before the matter can br heard on notice. (BP 224)
A writ of preliminary injunction requires a bond to be filed by
the applicant. (Sec. 4 of Rule 58), whereas a TRO does not.
(c) Duration of TRO issued by:
(1) RTC - 20 days (BP 224)
(2) CA - 20 days (Delbros Corp. vs. IAC, April 12, 1988)
(c)

SC - no time limit

Civil procedure; provisional remedies; TRO

1989 (8)
8.2) What is the life span of a TRO issued by the trial court? May
this life span be extended? Explain fully.
Answer:
The life span of a restraining order is twenty (20) days. This
life span may not be extended.
A preliminary injunction may no longer be granted without notice
to the adverse party. However, if it appears that great or irreparable
injury would result to the applicant before his application for
preliminary injunction could be heard on notice, the judge may issue a
TRO with a limited life span of 20 days from date of issue. If no
preliminary injunction is granted within said period, the TRO would
automatically expire on the 20th day. If before the expiration of the
20-day period, the application for preliminary injunction is denied, the
TRO would also be deemed automatically vacated. (Sec.5 of Rule 5 as
amended by BP 224; Dionisio vs. CFI of South Coatabato, 124 SCRA 222).
Civil Procedure; provisional remedies; TRO
2001 No. IX.
An application for a writ of preliminary injunction with a prayer
for a temporary restraining order is included in a complaint and filed
in a multi-sala Regional Trial Court consisting of Branches 1,2,3 and 4.
Being urgent in nature, the Executive Judge, who was sitting in Branch
1, upon the filing of the aforesaid application immediately raffled the
case in the presence of the judges of Branches 2,3 and 4. The case was
raffled to Branch 4 and judge thereof immediately issued a temporary
restraining order.
Is the temporary restraining order valid? Why? (5%)
SUGGESTED ANSWER:
No. It is only the Executive Judge who can issue immediately a
temporary restraining order effective only for seventy-two (72) hours
from issuance. No other Judge has the right or power to issue a
temporary restraining order ex parte. The Judge to whom the case is
assigned will then conduct a summary hearting to determine whether the
temporary restraining order shall be extended, but in no case beyond 20
days, including the original 72-hour period. (Sec. 5 of Rule 58, 1997
Rules of Civil Procedure)
ALTERNATIVE ANSWER:

Page 69 of 172

The temporary restraining order is not valid because the question

does not state that the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury. (Sec. 5 of Rule 58,
1997 Rules of Civil Procedure)
Civil procedure; real parties in interest
1989 (5)
5.1) Isagani drove the car of his father, Pedro, and left it in
the parking area of the Fairview motel where he was a guest. Isagani
entrusted the key of the car to a security guard hired by the Prime
Resort Company, the owner/operator of the motel. Emilio, pretending to
be the brother of Isagani, got the key from the security guard and drove
the car away. The car was never recovered. Later, Pedro sued Prime
Resort for the value of the carnapped vehicle plus damages. Prime Resort
sets up the defense that Pedro has no interest in the case, hence, has
no cause of action, as he was not the guest of the motel but his son,
Isagani. Is the defense tenable? Explain.
Answer:
No, because Pedro is the owner of the
to the fault or negligence of the security
of the motel in which his son, Pedro, was
real party in interest. (Dilson Enterprises

car which was carnapped due

guard of the owner/operator
a guest. Hence, Pedro is a
vs. IAC, Feb.27, 1989).

Civil procedure; remedies

1988 (3)
Defendant Xanthe filed
complaint before the RTC.

motion

to

dismiss

plaintiff

Yogis

3.a) The court grants the motion to dismiss.

Explain the remedies or procedure to be resorted to or to be
pursued by plaintiff to have the order of dismissal reversed and
corrected finally.
3.b) The court denies the motion to dismiss.
3.b.1) May Xanthe appeal the denial? Reasons.
3.b.2) How and on what ground or grounds may defendant Xanthe may
bring the denial of his motion to dismiss to the appellate court?
Explain.
Answer:
3.a) The remedy is to appeal to the CA from the order of dismissal
within 15 days from notice thereof by filing a notice of appeal with the
RTC and serving a copy thereof on the adverse party.
However, if only a question of law is involved, the remedy is to
file a petition for review on certiorari with the SC within 15 days from
notice of the order or the denial of his motion for reconsideration and
serving a copy thereof on the RTC and on the adverse party. (Laxamana
vs. CA, 143 SCRA 643)
3.b.1) No, because the order of denial is merely interlocutory,
and only final judgments or orders are subject to appeal.
3.b.2) Defendant X may bring the denial of his motion to dismiss
to the appellate (superior) courts by filing a petition for certiorari
on the ground of lack or excess of jurisdiction or grave abuse of
discretion. (Newsweek vs. IAC, 142 SCRA 171)
Civil procedure; remedies
1996 No. 6:
2)
X sued Y for breach of contract with damages. After Y filed
his answer, the parties amicably settled. The court rendered judgment
based on said compromise. Within the period to perfect the appeal, Y

Page 70 of 172

filed a motion for new trial under Rule 37 alleging vitiation of his
consent due to mistake and prayed that the agreement be set aside.
Resolve the motion.
Answer:
2) A judgment by compromise is not appealable. Hence a motion for
new trial is not proper. Y should file a motion to set aside the
agreement on the ground of mistake. (Reyes vs. Ugarte, 75 Phil. 505), or
he could file a petition for relief under Rule 38 of the Rules of Court
or file a new action to annul the agreement within the prescriptive
period (Saminiada vs. Mata, 92 Phil. 426). (not in regalado)
Civil procedure; remedies
1998 No V.
What are the available remedies of a party declared In default:
1.

Before the rendition of judgment; [1%]

2.

After judgment but before its finality; and [2%1

3.

After finality of judgment? [2%] SUGGESTED ANSWER;

The available remedies of a party declared in default are as

follows:
1.
Before the rendition of judgment (a) he may file a motion
under oath to set aside the order of default on the grounds of fraud,
accident, mistake or excusable negligence and that he has a meritorious
defense (Sec. 3[b], Rule 9, 1997 Rules of Civil Procedure); 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 lack or excess of the lower court's
jurisdiction. (Sec. 1, Rule 65, Rules of Court) or (b) 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
expiration of the time to answer. (Matute vs. Court of Appeals, 26 SCRA
768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
2.
After judgment but before its finality, he may file a
motion for new trial on the grounds of fraud, accident, mistake,
excusable negligence, or a motion for reconsideration on the ground of
excessive damages, insufficient evidence or the decision or final order
being contrary to law (Sec. 2, Rule 37. 1907 Rules of Civil Procedure):
and thereafter. If the motion to denied, appeal to available under Rules
40 or 41, whichever to applicable.
3. After finality of the judgment, there are three ways to assail
the judgment, which are: (a) a petition for relief under Rule 38 on the
grounds of fraud, accident, mistake or excusable negligence; (b)
annulment of judgment under Rule 47 for extrinsic fraud or lack of
jurisdiction; or (c) certiorari if the judgment to void on its face or
by the judicial record. (Balangcad vs. Justices of the Court of Appeals,
G.R. No. 83888. February 12, 1992, 206 8CRA 171 and other cases).
Civil procedure; remedies; appeal
1991 No. III;
On 3 January 1991, the Mayon Corp. filed a complaint for
foreclosure of real estate mortgage against one of its sales agents. A,
who was discovered to have Incurred a shortage in his accounts. The
mortgage was executed to guarantee faithful compliance with his duties
and responsibilities as a sales agent. Impleaded in the complaint as codefendants were A's co-mortgagors, B and C.
Acting on defendants' motion to dismiss, the court dismissed the
complaint in an Order dated 15 February 1991, a copy of which was
received by Mayon Corp. on 18 February 1991. On 15 March 1991, and
definitely within a reasonable period from receipt of the dismissal
order, Mayon Corp. filed with the Supreme Court a special civil action

Page 71 of 172

for certiorari under Rule 65 of the Rules of Court alleging therein that
the trial court acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction in granting the
motion to dismiss.
(a)

Should the Supreme Court give due course to the petition?

Answer:
(a) No, because the proper remedy was an appeal from the order of
dismissal. The special civil action of certiorari cannot take the place
of a lost appeal. (Limpot v CA, 170 SCRA 367)
Civil procedure; remedies; appeal
1999 No. IX
a.
When is an appeal from the Regional Trial Court to the
Court of Appeals deemed perfected? (2%}
b,
XXX received a copy of the RTC decision on June 9, 1999;
YYY received it on the next day, June 10, 1999. XXX filed a Notice of
Appeal on June 15, 1999. The parties entered into a compromise on June
16, 1999. On June 13, 1999, YYY, who did not appeal, filed with the RTC
a motion for approval of the Compromise Agreement.
XXX changed his
mind and opposed the motion on the ground that the RTC has no more
jurisdiction.
Rule on the motion assuming that the records have not
yet been forwarded to the CA. (2%)
SUGGESTED ANSWER:
a.
An appeal from the Regional Trial Court to the Court of
Appeals is deemed perfected as to the appellant upon the filing of a
notice of appeal in the Regional Trial Court in due time or within the
reglementary period of appeal.
An appeal by record on appeal is deemed
perfected as to the appellant with respect to the subject matter thereof
upon the approval of the record on appeal filed in due time. (Sec. 9,
Rule 41 of the 1997 Rules)
b.
The contention of XXX that the RTC has no more
jurisdiction 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
YYY had not yet expired. Besides, even if that period had already
expired, the records of the case had not yet been forwarded to the Court
of Appeals.
The rules provide that in appeals by notice of appeal, the
court loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to appeal of
the other parties.
(Sec. 9, third par., Rule 41 of the 1997 Rules)
Thie rules also provide that prior to the transmittal of the
record, the court may, among others, approve compromises. (Sec. 9, fifth
par., Rule 41 of the 1997 Rules) (Note: June 13, the date of the filing
of the motion for approval of the Compromise Agreement, appears to be a
clerical error)
Civil procedure; remedies; appeal to SC; appeals to CA
2002 No. XV.
A.

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

B.
Comment on a proposal to amend Rule 122, Section 2(b), in
relation to Section 3(c), of the Revised Rules of Criminal Procedure to
provide for appeal to the Court of Appeals from the decisions of the
Regional Trial Court in criminal cases, where the penalty imposed is
reclusion perpetua or life imprisonment, subject to the right of the
accused to appeal to the Supreme Court. (3%)
SUGGESTED ANSWER:
A.
The modes of appeal to the Supreme Court are: (a) appeal by
certiorari on pure questions of law under Rule 45 through a petition for
review on certiorari; and (b) ordinary appeal in criminal cases through
a notice of appeal from convictions imposing reclusion perpetuator life

Page 72 of 172

imprisonment or where a lesser penalty is involved but for offenses

committed on the same occasion or which arose out of the same occurrence
that gave rise to the more serious offense. (Rule 122, sec. 3)
Convictions imposing the death penalty are elevated through automatic
review.
B.
There is no constitutional objection to providing in the
Rules of Court for an appeal to the Court of Appeals from the decisions
of the RTC in criminal cases where the penalty imposed is reclusion
perpetua or life imprisonment subject to the right of the accused to
appeal to the Supreme Court, because it does not deprive the Supreme
Court of the right to exercise ultimate review of the judgments in such
cases.
Civil procedure; remedies; decisions of SC division
1990 (20)
After the First Division of the Supreme Court decided a case, the
losing party sought a reconsideration from the Supreme Court en banc.
Is the action taken by the said losing party proper? Explain your
answer.
Answer:
No, because the Supreme Court en banc is not an appellate court to
which decisions or resolutions of a division may be appealed. However, a
motion for reconsideration may be considered by the Supreme Court en
banc if three members of the Division are of the opinion that the same
merits the attention of the Court en banc and a majority of the Court en
banc decides to consider it. (Circular No. 2.89, Feb. 7, 1989)
Civil procedure; remedies; fianl and executory judgments
1995 No. 4:
1.
May a judgment which has become final and executory still be
questioned, attacked or set aside? If so, how? If not, why not? Discuss
fully.
2.
A decision of the Regional Trial Court adverse to Delia was
received by her counsel on 13 January 1994. As Delia was leaving for
Canada she forthwith Instructed her counsel to appeal because according
to her she was prevented from fully presenting her case in court through
fraudulent acts of the prevailing party. When Delia returned from abroad
on 1 August 1994 she discovered that her case was not appealed as her
counsel had died a day after she left. Moreover, the other party has
filed a motion for issuance of a writ of execution which remains pending
in court.
As the new counsel of Delia, what course or courses of action
will you pursue to protect her interest? Discuss fully.
Answer:
I.
There are three ways by which a final and executory
judgment may be attacked or set aside, namely:
a) By petition for relief from judgment under Rule 38 on the
grounds of fraud, accident, mistake or excusable negligence within sixty
days from learning of the judgment and not more than six months from its
entry;
b)
By direct action to annul or enjoin the enforcement of the
Judgment when the defect is not apparent on its face or from the
recitals contained in thejudgment;
c)
By direct action, such as certiorari or by a collateral
attack against the judgment which is void on its face or when the
nullity of the judgment is apparent by virtue of its own recitals.
(Macabingkil vs. People's Homestte and Housing Corporation. 72 SCRA 326)
2. I would file an action for annulment of the judgment with the
Court of Appeals on the ground of extrinsic and collateral fraud because

Page 73 of 172

my client was prevented from fully presenting her case in court through
fraudulent acts of the prevailing party. (Sec. 9(2), BP 129)
Alternative Answer;
I would file a petition for relief under Rule 38 on the ground
that my client's failure to appeal on time was due to the death of her
lawyer one day after she left for Canada.
Civil procedure; remedies; modes of appeal
1992 No. XI:
By sheer coincidence, Atty. Lopez was on the same day, June 30,
1991, served with adverse decisions of the Court of Appeals and the
Regional
Trial Court.
In each
case, he
filed a
motion for
reconsideration simultaneously on July 10, 1991. He received notices of
the denial of his two motions for reconsideration on August 15, 1991.
If Atty. Lopez decides to appeal in each of the two cases
(a) What mode of appeal should he pursue in each case?
Suggested Answer:
(1) From the Court
certiorari under Rule 45,

of

Appeals

to

Supreme

Court

appeal

by

(2) From the Regional Trial Court to Court of Appeals -ordinary

appeal on questions of fact and law.
(3)
From the Regional Trial Court to Supreme Court -appeal by
certiorari on questions of law only.
(b)

How would he perfect each appeal?

Suggested Answer:
(1) From Court of Appeals to Supreme Court, by filing a petition
for review on certiorari with the Supreme Court and serving a copy on
the Court of Appeals and the adverse party.
(2) From Regional Trial Court to Court of Appeals, by filing a
notice of appeal with Regional Trial Court and serving a copy on the
adverse party.
(3)
From Regional Trial Court to Supreme Court, by filing a
petition for review on certiorari with Supreme Court and serving a copy
on the lower court and the adverse party.
(c) Within what time should each appeal be perfected?
Suggested Answer:
(1) From Court of Appeals to Supreme Court, on or before August
30, 1991, or fifteen days from notice of the denial of the motion for
reconsideration. (Sec. 1 of Rule 45)
(2) From Regional Trial Court to Court of Appeals, on or before
August 21, 1991, or the remaining period of 6 days counted from notice
of denial, since from June 30 to July 10, nine days had elapsed. (De Las
Alas vs. Court of Appeals, 83 SCRA 200)
(3)
From Regional Trial Court to Supreme Court, on or before
August 30, 1991, as in appeal from Court of Appeals to Supreme Court,
(RA 5440)
Civil procedure; remedies; modes of appeal
1994 No (5)
State the steps for bringing up to the Supreme Court:
1. a decision
ejectment case.

of

the

Municipal

Trial

Court

of

Manila

in

2. A decision of the Board of Assessment Appeals of the Province

of Rizal.

Page 74 of 172

3. A decision of the Regional Trial Court, Quezon City, in a case

originally filed with said court and where the appeal involves a pure
question of law.
Answer:
1. To bring up a decision of the Municipal; Trial Court of Manila
in an ejectment case to the Supreme Court, it must first be appealed to
the Regional Trial Court by notice of appeal, and the decision of the
Regional Trial Court may be appealed to the Court of Appeals through a
petition for review, after which the decision of the Court of Appeals
may be elevated to the Supreme Court through a petition for review on
certiorari. The decision of the Regional Trial Court may be appealed
directly to the Supreme Court on questions of law only through a
petition for review on certiorari.
2. To bring up a decision of the Board of Assessment Appeals of
the Province of Rizal to the Supreme Court, it must first be brought to
the Central Board of Assessment Appeals, after which the decision of the
CBAA may be brought to the Supreme Court in a special civil action for
certiorari.
3. To bring up to the Supreme Court a decision of the Regional
Trial Court, Quezon City, in a case originally filed with said court and
where the appeal involves a pure question of law, a petition for review
on certiorari should be filed.
Civil procedure; remedies; period
1998 No VII
The Regional Trial Court (RFC) affirmed the appealed decision of
the Municipal Trial Court (MTC). You are the counsel of the defeated
party and he tells you to appeal the RTC's decision.
1.

What mode of appeal will you adopt? [2%]

2. Within
appeal? [3%]

what

time

and

in

what

court

should

you

file

your

SUGGESTED ANSWER:
1.
The mode of appeal is by petition for review under Rule
42, 1997 Rules of Civil Procedure.
2,
The period of appeal is within fifteen [15] days from
notice of the decision subject of the appeal or of the denial of a
motion for new trial or reconsideration filed in due time. The appeal
shall be filed in the Court of
Appeals. (Sec.1, Rule 42, 1997 Rules of Civil Procedure.)
Civil procedure; remedies; petition for relief
1990 (11)
A money judgment against Ernesto in favor of Geraldine was
rendered by the RTC of Binan, Laguna. The decision was received by Atty.
Maco, counsel for Ernesto, on March 4, 1990. Atty. Maco did not inform
Ernesto about the judgment. On March 10, 1990, Atty. Maco migrated with
his entire family to California, USA. Entry of judgment was made on
March 20, 1990. Ernesto learned of the decision only on June 17, 1990
when the court sheriff arrived at his residence to levy on his
properties. You are consulted by Ernesto on July 31, 1990.
Assuming Ernesto has a meritorious case, what legal remedies you
may avail of in order to protect his interest? Explain your answer.
Answer:
I will file a petition for relief from judgment with the RTC of
Bian, Laguna. Such a petition should be filed within 60 days after the
petitioner learns of the judgment and not more than 6 months after its
entry. (Sec.3 of Rule 38). Since the entry of judgment was made on March
20, 1990, the period of 6 months had not yet expired on July 31, 1990

Page 75 of 172

when I was consulted by Ernesto.

While the period of 60 days is ordinarily counted from notice to
the lawyer, this case may be an exception because of the gross
irresponsibility of Atty. Maco who did not inform Ernesto about the
judgment and migrated to California. Hence, the said period should be
counted from July 17, 1990 when Ernesto actually learned of the
judgment. (PHHC vs. Tiongco, 12 SCRA 471).
Another Acceptable Answer:
Inasmuch as the petition for relief from judgment is no longer
available because of the lapse of the period of 60 days counted from
March 4, 1990 when the decision was received by Atty. Maco, counsel for
Ernesto, and notice to the lawyer is notice to the client (Olivares vs
Leola, 97 Phil, 253), the only available remedy is for Ernesto to file
an action for damages and disbarment proceedings against Atty. Maco
(Sanchez vs. Tupas, 158 SCRA 459).
Civil procedure; remedies; petition for review
1990 (5)
Suppose that instead of filing a motion for reconsideration with
the RTC, Juan filed a notice of appeal with the RTC stating that he is
appealing to the CA on the ground that the judgment is contrary to law
and the facts of the case.
As a lawyer for Maria, on what procedural ground will you oppose
the appeal? Explain your answer.
Answer:
I would oppose the appeal on the ground that the proper procedure
is the filing of petition for review with the CA. (Sec. 22 of BP 129).
The filing of a notice of appeal is proper if the case was originally
filed with the RTC.
Civil procedure; remedies; Rule 45; Rule 65
1990 (9)
(a) Suppose the motion to dismiss in the preceding problem is
granted, what is the remedy of Norma?
(b) If the motion to dismiss is denied, what is the recourse of
Mario?
Explain your answers.
Answer:
(a) The remedy of Norma from the order of dismissal is an appeal
by certiorari under Rule 45 of the Rules of Court.
Another Acceptable Answer:
(a) Another remedy is for Norma to file a motion
reconsideration with the request to have another served on Mario.

for

Answer:
(b) The recourse of Mario from the order of denial is not an
immediate appeal because the order is interlocutory. However, since the
issue raised is lack of jurisdiction over his person, he may file a
petition for certiorari under Rule 65 of the Rules of Court. (Newsweek
vs. IAC, 142 SCRA 171)
Civil procedure; reply
2000 No. I-a
a)
X files a complaint in the Regional Trial Court for the
recovery of a sum of money with damages against Y. Y files his answer
denying liability under the contract of sale and praying for the
dismissal of the complaint on the ground of lack of cause of action
because the contract of sale was superseded by a contract of lease,

Page 76 of 172

executed and signed by X and Y two weeks after the contract of sale was
executed. The contract of lease was attached to the answer. X does not
file a reply. What is the effect of the non-filing of a reply? Explain.
(3%)
SUGGESTED ANSWER:
(a) A reply is generally optional. If it is not filed, the new
matters alleged in the answer are deemed controverted. (Sec. 10 of Rule
6, 1997 Rules of Civil Procedure). However, 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 execution of said
contract, the plaintiff is deemed to have admitted the genuineness and
due execution thereof. (Secs. 7 and 8 Rule 8, 1997 Rules of Civil
Procedure; Toribio v. Bidin, 132 SCRA 162 [1985]).
Civil procedure; Rule 45 vs Rule

65

1999 No. X
a.
Distinguish a petition for certiorari as a mode of appeal
from a special civil action for certiorari. (2%)
b.
May a party resort to certiorari when appeal is still
available? Explain.
(2%)
SUGGESTED ANSWER:
a.
A petition for review on certiorari 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 Rule 45
and is filed from a judgment or final order of the Regional Trial Court,
the Sandiganbayan or the Court of Appeals, within fifteen (15) days from
notice of the judgment appealed from or of the denial of the motion for
new trial or reconsideration filed in due time on questions of law only
(Secs. 1 and 2); special civil action for certiorari is governed by Rule
65 and is filed to annul or modify judgments, orders or resolutions
rendered or issued without or in excess of jurisdiction or with grave
abuse of discretion tantamount to lack or excess of jurisdiction, when
there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law, to be filed within sixty (60) days from notice
of the judgment, order or resolution subject of the petition. (Secs. 1
and 4.)
ADDITIONAL ANSWER;
1) In appeal by certiorari under Rule 45, the petitioner and
respondent are the original parties to the action and the lower court is
not impleaded. In certiorari, under Rule 65, the lower court is
impleaded.
2) In appeal by certiorari, the filing of a motion for
reconsideration is not required, while in the special civil action of
certiorari, such a motion is generally required.
SUGGESTED ANSWER:
b.
No, because as a general rule, certiorari is proper if
there is no appeal.
(Sec. 1 of Rule 65.)
However, if appeal is not a
speedy and adequate remedy, certiorari may be resorted to.
(Echaus v.
Court of Appeals, 199 SCRA 381.)
Certiorari is sanctioned, even if
appeal is available, on the basis of a patent, capricious and whimsical
exercise of discretion by a trial judge as when an appeal will not
promptly relieve petitioner from the injurious effects of the disputed
order (Vasquez vs. Robilla-Alenio, 271 SCRA 67)
Civil procedure; Rule 45 vs Rule 65
1988 (12)
12.a) What are the contents of a petition for review by certiorari
under Rule 45 of the Rules of Court from a judgment of the CA to the SC?
12.b)

When

must

this

petition

for

review

under

paragraph

(a)

Page 77 of 172

hereof be filed? How does this period differ from that required for
filing the requisite petition in a special civil action for certiorari?
12.c) State the three (3) grounds upon which the SC may dismiss
the petition under paragraph (a) herein-above.
Answer:
12.a) The petition shall contain a concise statement of the
matters involved, the assignment of errors made by the court below, and
the reasons relied on for the allowance of the petition, and it should
be accompanied with a true copy of the judgment sought to be reviewed,
together with the twelve (12) copies of the record on appeal, if any,
and of the petitioners brief as filed in the CA. A verified statement
of the date when notice of judgment and denial of the motion for
reconsideration, if any, were received shall accompany the petition.
(Sec. 2 of Rule 45)
12.b) Within 15 days from notice of judgment or denial of the
motion for reconsideration. (Sec. 1 of Rule 45)
There is no reglementary period for
certiorari as a special civil action. Only
required.

filing a petition for

a reasonable period is

12.c) The 3 grounds are that the appeal is without merit, or is

prosecuted manifestly for delay, or that the questions raised are too
unsubstantial to require consideration. (Sec. 3 of Rule 45)
Civil procedure; Rule 45 vs Rule 65
1991 No. III;
(b) Distinguish certiorari as a special civil action under Rule
65 from certiorari as a mode of appeal under Rule 45 of the Rules of
Court.
Answer:
(b) Certiorari as a special civil action is within the
jurisdiction of the Supreme Court, the Court of Appeals and the Regional
Trial Courts, whereas certiorari as a mode of appeal is within the
Jurisdiction only of the Supreme Court.
The grounds for certiorari under Rule 65 are lack or excess of
Jurisdiction or grave abuse of discretion, whereas the grounds for
certiorari under Rule 45 are errors of law.
The court or judge should be joined as indispensable party
defendant in certiorarl under Sec. 5 of Rule 65, but need not be Joined
in certiorari under Rule 45. (MWSS v. CA, 143 SCRA 623; Philippine
Global Communications, inc. v. Relova, 145 SCRA 385)
Civil procedure; Rule 65; motion for recon
1989 (10)
10.2) well-settled is the rule that before a petition for
certiorari under Rule 65 of the Rules of Court may be filed a motion for
reconsideration must be filed to give an opportunity to the judge to
correct an error, if any. An omission to comply with this procedural
requirement justifies the denial of the writ applied for. When may a
motion for reconsideration be dispensed with?
Answer:
A motion for
following cases:

reconsideration

may

be

dispensed

with

in

the

(1) Where the question of jurisdiction has been squarely raised,

argued before, submitted to, and met and decided by the respondent
court;
(2) Where the questioned order is a patent nullity;
(3) Where there is a deprivation of the fundamental right to due

Page 78 of 172

process. (Cochingyan vs. Cloribel)

Another Acceptable Answer:
(1) Where the issue is purely of law;
(2) Where public interest is involved;
(3) In cases of urgency. (PALEA vs. PAL, 111 SCRA 215)
Civil procedure; special civil action; ejectment
1997 No. 5:
On 10 January 1990, X leased the warehouse of A under a lease
contract with a period of five years. On 08 June 1996, A filed an
unlawful detainer case against X without a prior demand for X to vacate
the premises.
(a) Can X contest his ejectment on the ground that there was no
prior demand for him to vacate the premises?
(b) In case the Municipal Trial Court renders judgment in favor
of A, is the judgment immediately executory?
Answer:
(a)
Yes. X can contest his ejectment on the ground that there
was no prior demand to vacate the premises. (Sec. 2 of Rule 70; Casilan
vs.Tomassi l0 SCRA 261; Iesaca vs.Cuevas. 125 SCRA 335).
(b)
Yes, because the judgment of the Municipal Trial Court
against the defendant X is immediately executory upon motion unless an
appeal has been perfected, a supersedeas bond has been filed and the
periodic deposits of current rentals. If any, as determined by the
judgment will be made with the appellate court. (Sec. 8 of former Rule
70; Sec. 19 of new Rule 70).
Alternative Answer:
(a) Yes, X can contest his ejectment on the ground that since he
continued enjoying the thing leased for fifteen days after the
termination of the lease on January 9,1995 with the acquiescence of the
lessor without a notice to the contrary, there was an implied new lease.
(Art. 1670. Civil Code).
Civil procedure; special civil action; ejectment
1998 No II
In an action for unlawful detainer in the Municipal Trial Court
(MTC), defendant X raised in his Answer the defense that plaintiff A is
not the real owner of the house subject of the suit. X filed a
counterclaim against A for the collection of a debt of P80,000 plus
accrued interest of P15,000 and attorney's fees of P20,000.
1.

Is X's defense tenable? [3%]

2.

Does the MTC have jurisdiction over the counterclaim? [2%]

SUGGESTED ANSWER:
1.
No. X's defense is not tenable if the action is filed by a
lessor against a lessee. However, if the right of possession of the
plaintiff depends on his ownership then the defense is tenable.
2.
The counterclaim is within the jurisdiction of the
Municipal Trial Court which does not exceed P100,000, because the
principal demand is P80,000, exclusive of interest and attorney's fees.
(Sec. 33, B.P. Big. 129, as amended.) However. Inasmuch as all actions
of forcible entry and unlawful detainer are subject to summary procedure
and since the counterclaim is only permissive, it cannot be entertained
by the Municipal Court. (Sees. 1AU) and 3(A) of Revised Rule on Summary
Procedure.)
Civil procedure; special civil action; foreclosure
2003 No. VI.

Page 79 of 172

A borrowed from the Development Bank of the Philippines (DBP) the

amount of P1 million secured by the titled land of his friend B who,
however, did not assume personal liability for the loan. A defaulted and
DBP filed an action for judicial foreclosure of the real estate mortgage
impleading A and B as defendants. In due course, the court rendered
judgment directing A to pay the outstanding account of P1.5 million
(principal plus interest) to the bank. No appeal was taken by A on the
Decision within the reglementary period. A failed to pay the judgment
debt within the period specified in the decision. Consequently, the
court ordered the foreclosure sale of the mortgaged land. In that
foreclosure sale, the land was sold to the DBP for P1.2 million. The
sale was subsequently confirmed by the court, and the confirmation of
the sale was registered with the Registry of Deeds on 05 January 2002.
On 10 January 2003, the bank filed an ex-parte motion with the
court for the issuance of a writ of possession to oust B from the land.
It also filed a deficiency claim for P800,000.00 against A and B. the
deficiency claim was opposed by A and B.
(a)

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

(b)

Resolve the deficiency claim of the bank. 6%

SUGGESTED ANSWER:
(a) In judicial foreclosure by banks such as DBP, the mortgagor
or debtor whose real property has been sold on foreclosure has the right
to redeem the property sold within one year after the sale (or
registration of the sale). However, the purchaser at the auction sale
has the right to obtain a writ of possession after the finality of the
order confirming the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The
General Banking Law of 2000). The motion for writ of possession,
however, cannot be filed ex parte. There must be a notice of hearing.
(b) The deficiency claim of the bank may be enforced against the
mortgage debtor A, but it cannot be enforced against B, the owner of the
mortgaged property, who did not assume personal liability for the loan.
Civil procedure; special civil action; petition for certiorari
1991 No. III;
(c) May a special civil action for certiorari prosper in case of
a denial of a motion to dismiss or a motion to quash? If so, in what
instance or instances?
Answer:
(c) Yes, if it can be shown that the trial court acted without or
in excess of jurisdiction or with grave abuse of discretion, since the
order of denial is interlocutory and not immediately appealable. (Manalo
v. Mariano, 69 SCRA 800; Tacas v. Cariaso, 72 SCRA 171; Newsweek v. IAC,
142 SCRA 171)
Civil procedure; special civil action; petition for certiorari
2002 No. IV.
The defendant was declared in default in the RTC for his failure
to file an answer to a complaint for a sum of money. On the basis of the
plaintiffs ex parte presentation of evidence, judgment by default was
rendered against the defendant. The default judgment was served on the
defendant on October 1, 2001. on October 10, 2001, he files a verified
motion to lift the order of default and to set aside the judgment. In
his motion, the defendant alleged that, immediately upon receipt of the
summon, he saw the plaintiff and confronted him with his receipt
evidencing his payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court denied
the defendants motion because it was not accompanied by an affidavit of
merit. The defendant filed a special civil action for certiorari under
Rule 65 challenging the denial order.
A.

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

Page 80 of 172

B.
Did the trial court abuse its discretion or act without or
in excess of its jurisdiction in denying the defendants motion to lift
the order of default judgment? Why? (3%)
SUGGESTED ANSWER:
A.
The petition for certiorari under Rule 65 filed by the
defendant is the proper remedy because appeal is not a plain, speedy and
adequate remedy in the ordinary course of law. In appeal, the defendant
in default can only question the decision in the light of the evidence
of the plaintiff. The defendant cannot invoke the receipt to prove
payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A.Under ordinary circumstances, the proper remedy of a party
wrongly declared in default is either to appeal from the judgment by
default or file a petition for relief from judgment. [Jao, Inc. v. Court
of Appeals, 251 SCRA 391 (1995)
SUGGESTED ANSWER:
B.
Yes, the trial court gravely abused its discretion or acted
without or in excess of jurisdiction in denying the defendants motion
because it was not accompanied by a separate affidavit of merit. In his
verified motion to lift the order of default and to set aside the
judgment, the defendant alleged that immediately upon the receipt of the
summons, he saw the plaintiff and confronted him with his receipt
showing payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. Since the good defense of
the defendant was already incorporated in the verified motion, there was
not need for a separate affidavit of merit. [Capuz v. Court of Appeals,
233 SCRA 471 (1994); Mago v. Court of Appeals, 303 SCRA 600 (1999)].
Civil procedure; special civil action; quo warranto
2001 No. XI.
A group of businessmen formed an association in Cebu City calling
itself Cars C. to distribute / sell cars in said city. It did not
incorporate itself under the law nor did it have any government permit
or license to conduct its business as such. The Solicitor General filed
before a Regional Trial Court in Manila a verified petition for quo
warranto questioning and seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the ground of improper
venue claiming that its main office and operations are in Cebu city and
not in Manila.
Is the contention of Cars Co. correct? Why? (5%)
SUGGESTED ANSWER:
No. As expressly provided in the Rules, when the Solicitor
General commences the action for quo warranto, it may be brought in a
Regional Trial Court in the City of Manila, as in this case, in the
Court of Appeals or in the Supreme Court. (Sec. 7 of Rule 66, 1997 Rules
of Civil Procedure)
Civil procedure; special civil action;contempt
1993 No (13)
In an action for injunction and damages, the plaintiff applied for
a temporary restraining order or (TRO) and preliminary injunction.
Upon filing the complaint, the court issued a TRO and set the
application for preliminary injunction for hearing.
As the 20-day lifetime (January 3-23,1993) of the TRO was about to
expire, the court issued and order dated Jan 21,1993 extending the
effectivity of the TRO for another twenty days (January 24,1993 to
February 13,1993).
On March 5,1993, the court, after hearing, denied the application
for preliminary injunction.

Page 81 of 172

Supposing that on January 28,1993, the defendant committed an act

in violation of the TRO, is he guilty of indirect contempt?Explain..
Answer:
No. because in order to constitute indirect contempt, the writ
disobeyed must be lawful. In this case, the court had no authority to
extend the effectivity of the TRO for another twenty days. Consequently,
the defendant did not commit indirect contempt by committing an act on
January 28,1993 in violation of TRO. The extension was null and void.
Civil procedure; special civil actions; interpleader
1988 (8)
LTA, Inc. Is the lessee of the building own by Mr. Tenorio paying
rental of P10,000 a month. The owner died on May 10, 1988 and since
then, LTA has not paid the monthly rentals, now amounting to P40,000,
because two women are both claiming to be widows of Tenorio and are
demanding the rental payments.
What legal action may LTAs counsel may take, before what court,
and against whom to protect LTAs interest. Explain.
Answer:
LTAs counsel should file a complaint
two women claiming to be widows of Tenorio
court may determine who is entitled to the
jurisdiction because the amount involved is

for interpleader against the

before the RTC so that said
rental payments. The RTC has
P40,000.

Another Answer:
Consignation and deposit should be included because it involves
rentals (although this is not an ejectment case) to protect LTAs
interest.
Civil procedure; special civil actions; interpleader
1996 No. 10:
3)
A lost the cashier's check she purchased from XYZ Bank. Upon
being notified of the loss, XYZ Bank immediately issued a "STOP PAYMENT"
order. Here comes B trying to encash that same cashier's check but XYZ
Bank refused payment.
As precautionary measure, what remedy may XYZ Bank avail of with
respect to the conflicting claims of A and b over the cashier's check?
Explain.
Answer:
3)
XYZ Bank may file a complaint for interpleader so that the
court may resolve the conflicting claims of A and B over the cashier's
check.
Civil procedure; special civil actions; interpleader; declaratory relief
1998 No VIII.
1.

What is an action for interpleader? [2%|

2.
A student files action for declaratory relief against his
school to determine whether he deserves to graduate with Latin honors.
Is this action tenable? [3%]
SUGGESTED ANSWER:
1.
An action for interpleader is a special civil action which
is filed whenever conflicting claims upon the same subject matter are or
may be made against a person who claims no interest whatever in the
subject matter, or an interest which in whole or in part is not disputed
by the claimants, in which case, he may bring the action against the
conflicting claimants to compel them to interplead and litigate their
several claims among themselves. (Sec 1, Rule 62,1997 Rules of Civil
Procedure.)

Page 82 of 172

2.
No.
The action for declaratory relief is not tenable.
Whether the student deserves to graduate with Latin honors does not fall
within the matters subject to declaratory relief, namely, a deed, will
contract or other written instrument, or a statute, executive order or
regulation, ordinance, or any other governmental regulation. (Sec. 1 of
Rule 63, 1997 Rules of Civil Procedure.)
Civil procedure; subpoena
1997 No 4;
In an admiralty case filed by A against Y Shipping Lines (whose
principal offices are in Manila) in the Regional Trial Court, Davao
City, the court issued a subpoena duces tecum directing Y, the president
of the shipping company, to appear and testify at the trial and to bring
with him several documents.
(a)
On what valid
subpoena duces tecum?

ground

can

refuse

to

comply

with

the

(b) How can A take the testimony of Y and present the documents
as exhibits other than through the subpoena from the Regional Trial
Court?
Answer:
(a) Y can refuse to comply with the subpoena duces tecum on the
ground that he resides more than 50 (now 100} kilometers from the place
where he is to testify,
(Sec. 9 of former Rule 23; Sec. 10 of new Rule
21).
(b) A can take the testimony of Y and present the documents as
exhibits by taking his deposition through oral examination or written
interrogatories. (Rule 24; new Rule 23) He may also file a motion for
the production or inspection of documents. (Rule 27).
Alternative Answer;
(a) The 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 day's attendance and the kilometrage allowed by
the rules.
Civil procedure; summary judgment
1996 No. 7;
3) A's motion for summary judgment was granted by the Regional
Trial Court but reversed by the Court of Appeals on the ground that A
made no effort to adduce testimonial evidence in addition to his
affidavits to prove absence of any genuine issue as to any material
fact.
Is the decision of the Court of Appeals correct? Explain.
Answer:
3) No, because testimonial evidence is not required to prove the
absence of any genuine issue as to any material fact. This is shown by
the pleadings, depositions and admissions together with the affidavits.
(Sec. 3 of Rule 34)
Civil procedure; summary judgments
2004 NO. VII
A. After defendant has served and filed his answer to plaintiffs
complaint for damages before the proper Regional Trial Court, plaintiff
served and filed a motion (with supporting affidavits) for a summary
judgment in his favor upon all of his claims.
Defendant served and
filed his opposition (with supporting affidavits) to the motion. After
due hearing, the court issued an order (1) stating that the court has
found no genuine issue as to any material fact and thus concluded that
plaintiff is entitled to judgment in his favor as a matter of law except
as to the amount of damages recoverable, and (2) accordingly ordering

Page 83 of 172

that plaintiff shall have judgment summarily against defendant for such
amount as may be found due plaintiff for damages, to be ascertained by
trial on October 7, 2004, at 8:30 oclock in the morning.
May defendant properly take an appeal from said order? Or, may
defendant properly challenge said order thru a special civil action for
certiorari? Reason. (5%)
Civil procedure; summary judgments; judgment on the pleadings
1989 (9)
What do you understand by a Summary
distinguished from a Judgment on the Pleadings?

Judgment?

How

is

it

Answer:
A summary judgment is one rendered by a Court without a trial on
motion of either a claimant or a defending party, with at least 10 days
notice before the time specified for the hearing, when the pleadings,
supporting affidavits made on personal knowledge which are not rebutted
by opposing affidavits, depositions or admissions, show that, except as
to the amount of damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.
It is distinguished from a judgment on the pleadings in that the
latter is based on the pleadings alone. A judgment may be rendered when
the answer to the complain, counterclaim, cross-claim or third party
complaint fails to tender an issue or otherwise admits the material
allegations of the adverse partys pleading. (Rules 19 and 34).
Civil procedure; summons
1989 (2)
2.1) Are the rules on summons under Rule 14 of the Rules of Court
applicable equally in actions before the RTCs as well as in the
MetroTCs, MTCs and MCTCs?
Answer:
Yes, because the procedure to be observed in the MetroTCs, MTCs
and MCTCs is the same as that observed in the RTCs, and Rule 5 which
conveyed procedure in inferior courts including summons, was repealed.
(Sec.8 of Interim Rules).
2.2) When is extra-territorial service of summons proper?
Answer:
Extra-territorial service of summons is proper when the defendant
does not reside and is not found in the Philippines and the action
affects the personal status of the plaintiff or relates to, or the
subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in
which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the defendant
has been attached within the Philippines. (Sec.17 of Rule 14). It is
also
proper when
the defendant
ordinarily resides
within the
Philippines, but is temporarily out of it. (Sec.18 of Rule 14)
Civil procedure; summons
1999 No. VI
a.
What is the effect of absence of summons on the judgment
rendered in the case? (2%)
b.
When additional defendant is impleaded in the action, is
it necessary that summons be served upon him? Explain.
(2%)
c.
Is summons required to be served upon a defendant who was
substituted for the deceased? Explain. (2%)

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d.
A sued XX Corporation (XXC), a corporation organized
under Philippine laws, for specific performance when the latter failed
to deliver T-shirts to the former as stipulated in their contract of
sale.
Summons was served on the corporation's cashier and director.
Would you consider service of summons on either officer sufficient?
Explain. (2%)
SUGGESTED ANSWER;
a.
The effect of the absence of summons on a judgment would
make the judgment null and void because the court would not have
jurisdiction over the person of the defendant, but if the defendant
voluntarily appeared before the court, his appearance is equivalent to
the service of summons. (Sec. 20, Rule 14, 1997 Rules)
b.
Yes. Summons must be served on an additional defendant
impleaded in the action so that the court can acquire jurisdiction over
him, unless he makes a voluntary appearance.
c.
No.
A defendant who was substituted for the deceased
need not be served with summons because it is the court which orders him
as the legal representative of the deceased to appear and substitute the
deceased. (Sec. 16 of Rule 3.)
d.
Summons on a domestic corporation through its cashier and
director are not valid under the present rules.
(Sec. 11, Rule 14,
Rules of Court.)
They have been removed from those who can be served
with summons for a domestic corporation.
Cashier was substituted by
treasurer. (Id.)
Civil procedure; summons
B.
Seven years after the entry of judgment, the plaintiff filed
an action for its revival. Can the defendant successfully oppose the
revival of the judgment by contending that it is null and void because
the RTC-Manila did not acquire jurisdiction over his person? Why? (3%)
SUGGESTED ANSWER:
A.
The RTC-Manila should deny the motion because it is in
violation of the rule that no judgment obligor shall be required to
appear before a court, for the purpose of examination concerning his
property and income, outside the province or city in which such obligor
resides. In this case the judgment obligor resides in Bulacan. (Rule 39,
sec.36).
B.
Yes, because the
serve summons personally on
hence the RTC-Manila did not
14, sec. 6 & 7; De Guzman v.

sheriff did not exert sufficient effort to

the defendant within a reasonable time and
acquire jurisdiction over his person. [Rule
Court of Appeals, 271 SCRA 728 (1997)].

ALTERNATIVE ANSWER:
B. No, the defendant is deemed to have waived the lack of
jurisdiction over his person because he did not raise this issue: 1) in
opposing the motion to declare him in default; 2) in motion for
reconsideration of or appeal from the judgment by default; and 3) in
opposing the motion requiring him to appear and be examined regarding
his property.
Civil procedure; summons
2004 NO. III
A. Summons was issued by the MM Regional Trial Court and actually
received on time by defendant from his wife at their residence.
The
sheriff earlier that day had delivered the summons to her at said
residence because defendant was not home at the time.
The sheriffs
return or proof of service filed with the court in sum states that the
summons, with attached copy of the complaint, was served on defendant at
his residence thru his wife, a person of suitable age and discretion
then residing therein.
Defendant moved to dismiss on the ground that
the court had no jurisdiction over his person as there was no valid

Page 85 of 172

service of summons on him because the sheriffs return or proof of

service does not show that the sheriff first made a genuine attempt to
serve the summons on defendant personally before serving it thru his
wife.
Is the motion to dismiss meritorious?
What is the purpose of
summons and by whom may it be served? Explain. (5%)
Civil procedure; summons; extraterritorial service
1993 No (7)
In its complaint before the RTC, Singer (Phil.), Inc. alleged that
it is a corporation organized and existing under Philippine laws; that
another corporation, with the corporate name Singer, Inc. and organized
under the law of the United Sates, had incurred obligations to several
foreign creditors whom it refuses to pay, that although Singer (Phil.)
Inc. is a corporation separate and distinct form Singer, Inc. and that
Signer (Phil) Inc. had no participation or liability whatsoever
regarding the transactions between Singer, Inc. and the creditors have
been demanding form Singer (Phil. ) Inc., the payment of the obligations
to them (creditors of Singer, Inc.
Singer (Phil.) therefore, prayed for injunctive relief against the
creditors (whom it impleaded as the defendants in the action) by way of
enjoining the latter form making further demands on it for payment of
the obligations of Singer, Inc. to hem (creditors).
The defendants are non-residents and without business addresses in
the Philippines but in the U.S. Consequently, Singer (Phils.) asked for
leave of court to effect extraterritorial service f summons pursuant to
Sec. 17, Rule 14 of the Rules of Court. The trial court granted the
motion.
The defendants filed special appearances and questioned the
jurisdiction of the court over their persons. They contended that the
curt cannot acquire jurisdiciton over their persons because the action
does not fall under any of the situations authorizing extraterritorial
service of summons.
Is extraterritorial service of summons proper? Why?
Answer:
No. because it is only when the action affects the personal status
of the plaintiff, or any property in the Philippines in which defendants
have or claim and interest, or which the plaintiff has attached, that
extraterritorial service of summons is proper. (Sec. 17 of Rule 14). In
this case, the action is purely an action for injunction, which is a
personal action as well as an action in personam and not an action in
rem or quasi in rem. Hence, personal or substituted service of summons
is
necessary
in
order
to
confer
jurisdiction
on
the
court.
Extraterritorial service of summons on defendants will not confer on the
court jurisdiction or power to compel them to obey its orders.
Civil procedure; Summons; voluntary appearance
1987 No (4)
A filed before the RTC in Makati, Metro Manila, an action for
damages against B for a tort allegedly committed by B while B was on a
vacation in the Philippines when he temporarily lived at the residence
of his brother in Makati. The summon was served on Bs brother. Bs
lawyer filed a motion to dismiss on behalf of B and asserted that B was
not a resident of and could not be found in the Philippines so that the
court cannot acquire jurisdiction over his person. The motion also
alleged that anyway the action has prescribed, they further asserted a
claim for litigation expenses. Assume that Bs lawyer had been
authorized by B to represent him.
If you were the judge, will you dismiss the case on the ground of
the court lack of jurisdiction over the person of B? Explain.

Page 86 of 172

Answer:
No. Although substituted service of summons on Bs brother was not
valid inasmuch as B was not a resident of the Philippines, the motion to
dismiss filed by Bs lawyer constituted a voluntary appearance, inasmuch
as it does not only question the jurisdiction of the court over his
person, but also alleged prescription and a claim for litigation
expenses. (Note: The claim for litigation expenses may properly be made
in a counterclaim)
Civil procedure; summons; waiver of improper service
1990 (8)
While the trial was ongoing, the lawyer of Mario discovered that
there was improper service of summons, the summons having been sent by
registered mail. He filed a motion to dismiss on the ground that the
court had not acquired jurisdiction over the person of Mario.
Should the said motion be granted? Explain your answer.
Answer:
No, because by filing his answer and going to trial without
previous objection to the lack of jurisdiction over his person, Mario is
deemed to have waived the defect of improper service of summons. (Sec.
23 of Rule 14).
Civil procedure; supplemental pleadings
2000 No. III.
The Regional Trial Court rendered judgment against ST, copy of
which was received by his counsel on February 28, 2000. On March 10,
2000. ST, through counsel, filed a motion for reconsideration of the
decision with notice to the Clerk of Court submitting the motion for the
consideration of the court. On March 15, 2000, realizing that the Motion
lacked a notice of hearing, STs counsel filed a supplemental pleading.
Was the motion for Reconsideration filed within the reglementary period?
Explain. (5%)
SUGGESTED ANSWER:
Yes, because the last day of filing a motion for reconsideration
was March 15 if February had 28 days or March 16 if February had 29
days. Although the original motion for reconsideration was defective
because it lacked a notice of hearing, the defect was cured on time by
its filing on March 15 of a supplemental pleading, provided that motion
was set for hearing and served on the adverse party at least three (3)
days before the date of hearing. (Sec. 4, Rule 15, 1997 Rules of Civil
Procedure).
ALTERNATIVE ANSWER:
Since the supplemental pleading was not set for hearing, it did
not cure the defect of the original motion.
Civil procedure; third party claim
2000 No. XVI.
JKs real property is being attached by the sheriff in a civil
action for damages against LM. JK claims that he is not a party to the
case; that his property is not involved in said case; and that he is the
sole registered owner of said property. Under the Rules of Court, what
must JK do to prevent the Sheriff from attaching his property? (5%)
SUGGESTED ANSER:
If the real property has been attached, the remedy is to file a
third-party claim. The third-party claimant should make an affidavit of
his title to the property 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 57, 1997 Rules of Civil Procedure.) The

Page 87 of 172

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 injunction, which will not be considered as
interference with a court of coordinate jurisdiction. (Ong v. Tating,
149 SCRA 265, [1987])
Civil procedure; third party claims
1993 No (8)
Its decisions in Civil Case No. 93-1000 entitled Beta Inc. vs.
Jaime dela Cruz having become final and executory, the RTC of Manila
issued a writ of execution for its enforcement. The sheriff levied upon
certain chattels and scheduled the auction sale thereof.
However, Jacinto Santamaria filed a third party claim with the
sheriff asserting that the chattels levied upon by the latter belong to
him and no to the judgment debtor ( Jaime dela Cruz). Because the
judgment creditor (Beta, Inc.) posted an indemnity bond in favor of the
sheriff, the latter refused to release the chattels and threatened to
proceed with the auction sale.
Consequently, Jacinto Santamaria filed an action against Beta
Inc., and the sheriff in the RTC of Bulacan docketed as Civil Case No.
93-487, laying claim to the levied chattels and seeking to enjoin the
sheriff from proceeding with the auction sale thereof. As prayed for,
the Court in Civil Case No. 93-487, laying claim to the levied chattels
and seeking to enjoin the sheriff from proceeding with the auction sale
thereof. As prayed for, the Court in Civil Case No. 93-487 issued a
temporary retraining order, followed by a writ of preliminary
injunction, by way of enjoining the sheriff from implementing the writ
of execution issued in Civil Case No. 93-1000 against the levied
chattels pending determination of Jacinto Santamarias claim thereto.
Beta. Inc. and the sheriff filed a motion to dismiss Civil Case
No. 93-487 on the ground that the court has no power to interfere with
the judgment of the RTC of Manila, a coordinate court.
How would the motion to dismiss be resolved? Explain.
Answer:
The motion to dismiss should be denied. A third party claimant has
the right to vindicate his claim to the property by any proper action.
It is the RTC of Bulacan which has the jurisdiction to determine the
ownership of the property subject of the third-party claim. Obviously, a
judgment rendered in favor of the third party claimant would not
constitute interference with the powers or processes of the RTC of
Manila. If that be so and it is so because the property, being that of a
stranger, is not subject to levy on execution then an interlocutory
order such as a preliminary injunction upon a claim and prima facie
showing of ownership by the claimant cannot be considered as such
interference either. Moreover, the writ is issued against the sheriff,
not against the court.
Civil procedure; totality rule
1989 (1)
1.1) What do you understand by the totality rule in determining
the jurisdiction of courts in civil cases? Explain.
Answer:
Under the totality rule, where there are several claims or
causes of action between the same or different parties embodied in the
same complaint, the amount of the demands shall be the totality of the
claims in all the causes of action, irrespective of whether the causes
of action arose out of the same or different transactions. (Sec.33 of
BP129; Sec.11 of Interim Rules)
Civil procedure; venue; compulsory counterclaim
1998 No IV.

Page 88 of 172

A, a resident of Lingayen, Pangasinan sued X, a resident of San

Fernando La Union in the Regional Trial Court (RTC) of Quezon City for
the collection of a debt of P1 million.
X did not file a motion to dismiss for improper venue but filed
his answer raising therein improper venue as an affirmative defense. He
also filed a counterclaim for P80,000 against A for attorney's fees and
expenses for litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to dismis the
counterclaim for lack of jurisdiction.
1,

Rule on the affirmative defense of improper venue. [3%]

2.
Rule on the motion to dismiss the counterclaim on the
ground of lack of jurisdiction over the subject matter. [2%]
SUGGESTED ANSWER:
1.
There is improper venue. The case for a sum of money,
which was
filed in Quezon City, is a personal action.
It must be
filed in the residence of either the plaintiff, which is in Pangasinan,
or of the defendant, which is in San Fernando, La Union,
(Sec. 2 of
Rule 4. 1997 Rules of Civil Procedure.) The 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 1997 Rules of Civil Procedure. The new Rules 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.
6 of Rule 16.)
2.
The motion to dismiss on the ground of lack of
jurisdiction over the subject matter should be denied. The counterclaim
for attorney's fees and expenses of litigation is a compulsory
counterclaim because It necessarily arose out of and is connected with
the complaint. In an original action before the Regional Trial Court,
the counterclaim may be considered compulsory regardless of the amount.
(Sec. 7 of Rule 6, 1997 Rules of Civil Procedure.)
Civil procedure; venue; legal capacity to sue
1988 (4)
4.a) A complaint entitled A as attorney-in-fact for X, plaintiff,
versus B, defendant was filed to recover a car in the possession of B.
As power of attorney expressly authorized him (A) to sue for the
recovery of the car.
B files a motion to dismiss the complaint for lack of capacity to
sue.
Decide the motion. Explain.
4.b) A and B, both residents of Batangas, entered into a contract
of lease over a parcel of land belonging to B, located in Calapan,
Mindoro.
A filed a complaint before the RTC, Batangas for the rescission of
the lease contract of the land in Mindoro.
B filed a motion to dismiss on the ground that Batangas Court did
not have jurisdiction over the subject matter, the land being located in
Mindoro. B however did not allege improper venue in his motion.
Decide with reasons.
Answer:
4.a) Motion to dismiss is denied. A has a legal capacity to sue
but is not the real party in interest. The ground of the motion to
dismiss should have been that the complaint states no cause if action
because it was filed by A as attorney-in-fact for X. The complaint
should have been filed in the name of X as plaintiff. (Arroyo vs.
Granada, 18 Phil. 484)
4.b) Motion to dismiss is denied. The fact that the land is

Page 89 of 172

located in Mindoro does not affect the jurisdiction of the RTC sitting
in Batangas. The proper venue of the action is the RTC in Mindoro.
However, since B did not object to the improper venue in his motion,
that ground is deemed waived. (Sec.4 of Rule 4)
Civil procedure; venue; personal actions
1997 No. 3:
X, a resident of Angeles City, borrowed P300,000.00 from A, a
resident of Pasay City. In the loan agreement, the parties stipulated
that "the parties agree to sue and be sued in the City of Manila."
(a) In case of non-payment of the loan, can A file his complaint
to collect the loan from X in Angeles City?
(b) Suppose the parties did not stipulate in the loan agreement
as to the venue, where can A file his complaint against X?
(c)
Suppose the parties stipulated in their loan agreement that
"venue for all suits arising from this contract shall be the courts in
Quezon City," can A file his complaint against X in Pasay City?
Answer:
(a) Yes, because the stipulation in the loan agreement that "the
parties agree to sue and be sued in the City of Manila" does not make
Manila the "exclusive venue thereof." (Sec, 4 of Rule 4, as amended by
Circular No. 13-95: Sec. 4 of new Rule 4) Hence, A can file his
complaint in Angeles City where he resides, (Sec, 2 of Rule 4).
(b)
If the parties did not stipulate on the venue, A can file
his complaint either in Angeles City where he resides or in Pasay City
where X resides, (Id).
(c)
Yes, because the wording of the stipulation does not make
Quezon City the exclusive venue.
(Philbanking v. Tensuan. 230 SCRA
413; Unimasters Conglomeration, Inc. v. CA. CR-119657, Feb. 7, 1997),
Alternative Answer:
(c) No. If the parties stipulated that the venue "shall be in the
courts in Quezon City", A cannot file his complaint in Pasay City
because the use of the word "shall" makes Quezon City the exclusive
venue thereof. (Id. See also Hoechst Philippines vs. Torres, 83 SCRA
297).

Summary Procedure
Summary procedure; coverage
1988 (14)
(a) In what civil cases is the Summary Procedure before MetroTC,
MTC, and MCTC applicable?
(b) In what criminal cases
MetroTC, MTC, and MCTC applicable?

is

the

Summary

Procedure

before

Answer:
(a) Summary Procedure is applicable in the following civil cases:
(1) Cases of forcible entry and unlawful detainer, except where
the question of ownership is involved, or where the damages or unpaid
rentals sought to be recovered by the plaintiff exceed twenty thousand
(20,000) pesos at the time of the filing of the complaint;
(2) All other civil cases, except probate proceedings, falling
within the jurisdiction of the abovementioned courts, where the total
amount of the plaintiffs claim does not exceed ten thousand (10,000)
pesos, exclusive of interests and costs. (Sec. 1-A)
(b) It is applicable in the following criminal cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;

Page 90 of 172

(3) Violations of municipal or city ordinances;

(4) All other criminal cases where the penalty prescribed by law
for the offense charged does not exceed six months of imprisonment, or a
fine of one thousand (1,000) pesos, or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, that in offenses involving damage
to property through criminal negligence, this Rule shall govern where
the imposable fine does not exceed ten thousand (10,000) pesos. (Sec. 1B)
Summary procedure; ejectment
1989 (7)
7.1) In an ejectment suit filed with the MetroTC of Manila, the
judge rendered a decision ordering the defendant (a) to vacate the
property of the plaintiff and (b) to pay the plaintiff the amount of
P300 a month as reasonable compensation for the use of the land starting
from the time she occupied the same and until it is vacated by him;
P10,000 as unrealized earnings; P7,000 as moral damages; P5,000 as
exemplary damages; and P3,000 as attorneys fees. The defendant contends
that the decision is improper. Decide.
Answer:
The MetroTC exceeded its jurisdiction in awarding damages, other
than the reasonable compensation for the use and occupation of the land,
totalling P25,000. Hence, the decision should be nullified as to the
excess of P5,000 over the jurisdictional amount of P20,000. (Agustin vs.
Bocalan, 135 SCRA 340)
Another Acceptable Answer:
Only rentals or reasonable compensation for the use and occupation
of the premises and attorneys fees may be awarded in an ejectment case.
Summary procedure; ejectment
1990 (1)
Juan, who was leasing an apartment unit in Antipolo, Rizal from
Maria, a resident of Quezon City, under a five (5) year contract
expiring on October 15, 1991, is in arrears in his rent for three months
as of August 15, 1990. Maria, through counsel, send a demand letter to
Juan.
Suppose that Juan, upon receipt of the letter of demand to pay and
vacate the apartment unit, immediately pays the rentals on arrears. He
claims that he was so busy with his business that he neglected to pay
his rent. May Maria still file an unlawful detainer case against Juan?
Discuss with reasons.
Answer:
Yes, because Juan failed to pay the rental on time and his failure
to vacate the apartment unit despite the demand to do so makes his
withholding of possession unlawful. His belated payment did not make his
continued possession lawful without the lessors consent. (Cursino vs.
Bautista, Aug. 7, 1989)
Summary procedure; ejectment
1991 No. I:
For failure of the tenant. X, to pay
appointed administrator of the estate of Henry
action against the former for the recovery of
premises located in Davao City and for the
rentals in the total amount of P25,000.00

rentals. A, the courtDatu, decides to file an

possession of the leased
payment of the accrued

(a) Is prior referral to the Lupon under P.D. No. 1508 necessary?
Answer;

Page 91 of 172

(a) No, because the law applies only to disputes between natural
person and does not apply to juridical person such as the estate of a
deceased. (Vda, de Borromeo v. Pogoy, 126 SCRA 217)
(b) What is the court of proper jurisdiction and venue of the
intended action?
Answer;
(b) The Court of proper jurisdiction and venue is the Municipal
Trial Court of Davao City, since this is an action of illegal detainer
and the leased premises are located in Davao City.
Another Answer;
If the action filed is for recovery of possession or accion
publiciana, the Regional Trial Court of Davao City would have
jurisdiction and the venue would also be in Davao City.
(c)
Supposing that referral is necessary, but the complaint is
filed without such referral, may it be dismissed on the ground of lack
of jurisdiction?
Answer:
(c) No, because lack of referral affects only the cause of
action, not jurisdiction, and the former may be deemed waived if not
raised in a motion to dismiss or an answer. (Ebol v. Amin 135 SCRA 438)
Another Answer;
No, because lack of referral would merely render
premature for failure to comply with a condition precedent.

the

action

(d) If the case is filed with the Municipal Trial Court in Cities
(MTCC), is it covered by the Rule on Summary Procedure?
Answer;
(d)
No, it is not covered by the Rule on Summary Procedure in
any of the lower courts, because the unpaid rentals exceed P20,000.00
(Sec, 1-A-l of Rule on Summary Procedure)
(e)
Supposing that A filed the complaint in the MTCC, and X
filed an Answer wherein he interposed a counterclaim for moral damages
In the amount of P50,000 alleging that the complaint is unfounded and
malicious, would the MTCC have jurisdiction over the counterclaim? If X
did not setup the counterclaim, can he file a separate action to recover
the damages? Can A file a counterclaim to the counterclaim?
Answer;
(e) No, because
amount of P20,000.00.

the

counterclaim

exceeds

the

jurisdictional

Since the claim for damages is not within the jurisdiction of the
MTCC, it is not a compulsory counterclaim and X can file a separate
action in the RTC to recover the damages. (Reyes v. CA, 38 SCRA 130)
Yes, A can include a counterclaim in his answer to counterclaim.
(Sec. 10 of Rule 6).
Another Answer:
The MTCC would have jurisdiction over the counterclaim if the
excess of the amount thereof over P20,000.00 is waived by X. (Agustin v.
Bocalan. 135 SCRA 340)
Summary procedure; ejectment; execution pending appeal
1995 No. 3:
1.
In an illegal detainer case the Municipal Trial Court ruled
in favor of plaintiff-lessor who, not being satisfied with the increase
of rentals granted him by the court, appealed praying for further
increase thereof. Defendant-lessee did not appeal.

Page 92 of 172

a)
Can plaintiff-lessor, as appellant, move for execution
pending appeal? Explain.
b)
Can defendant-lessee, as appellee,
immediate execution of the judgment? Explain.

validly

resist

the

2.
In his appellee's brief, defendant-lessee not only
controverted the issue on rentals raised by plaintiff-lessor but also
assailed the Judgment of the trial court on the ground that the same was
totally contrary to the admitted evidence showing him to be the owner of
the property entitled to possession of the premises.
Can the appellate court consider the issue of ownership raised by
the appellee? Discuss fully.
Answer:
1.
a) Yes, if defendant fails to pay or deposit the amount of
rentals adjudged by the court within the reglementary period. (City of
Manila vs. CA, 149 SCRA 143)
b) Yes, as long as he pays or deposits the amount of rentals
adjudged.
2.
No, because as lessee he is estopped from raising the
question of ownership. (Art. 1456. Civil Code; Sec. 2(b), Rule 131; Fije
vs. CA, 233 SCRA 587)
Summary procedure; ejectment; issues of ownership
1995 No, 13:
Albert forcibly entered and occupied the house and lot in Quezon
City owned by his neighbor Carissa. Carissa immediately sued Albert for
recovery of the property. She also claimed damages amounting to
P100,000.00, other undetermined losses as a result of the forcible
entry, and attorney's fees of P25,000.00. Albert sets up affirmative
defenses in his answer without questioning Carissa's title over the
property.
1.
Is the case triable under summary
Metropolitan Trial Court of Quezon City? Explain.
2.

procedure

by

the

May Carissa present evidence of title? Explain. Answer;

1.
Yes, because all actions for forcible entry and unlawful
detainer are subject to summary procedure irrespective of the amount of
damages claimed, but the attorney's fees should not exceed P20,000.00.
2.
Yes, but only to determine the question of possession.
129 as amended).

(BP

3.
Albert may raise the issue of lack of barangay conciliation
prior to the filing of the complaint.
Summary procedure; ejectment; jurisdiction and remedies
1988 (10)
Andres filed a case for unlawful detainer before the Metropolitan
Court of Manila against Lito for refusing to vacate the leased premises
after the expiration of his lease contract and for non-payment of
rentals. As counterclaim, Lito claim moral damages in the amount of
P15,000.
10.a) May the Metropolitan Court proceed to try and decide the
case including the claim of P15,000? Explain.
10.b) In case Lito is adjudged to vacate the leased premises and
to pay the accrued rentals in arrears, how can he stay the execution of
the judgment?
10.c) How does unlawful detainer differ from forcible entry?
Answer:
10.a) Yes, because the amount of the counterclaim, P15,000, is

Page 93 of 172

within the jurisdiction of the Metropolitan Court which has also the
exclusive original jurisdiction over the unlawful detainer case.
(Agustin vs. Bocalan, 135 SCRA 340).
10.b) Lito must appeal; file a supersedeas bond in an amount
equivalent to the rents, damages and costs accruing down to the time of
the judgment; and deposit with the RTC the amount of the reasonable
value of the use and occupation of the premises for the preceding month
or period at the rate determine by the judgment, on or before the tenth
day of each succeeding month or period. (Sec. 8, of Rule70)
10.c) In
beginning but
termination of
the possession
made by force,

unlawful detainer, the possession is legal from at the

subsequently becomes illegal after the expiration or
the right to hold possession, whereas in forcible entry
is illegal from the very beginning because the entry was
intimidation, strategy or stealth and threat.

Summary procedure; ejectment; motion for execution

1989 (7)
7.2) In an ejectment case, the MTC ordered Ellery to vacate the
nipa house standing on a residential lot, restore possession thereof to
Indit and pay the sum of P340 as back rentals at the rate of P20 per
month. Ellery appealed to the RTC and posted a supersedeas bond of P400.
Subsequently, Indit filed a motion in the RTC for the execution of the
judgment on the ground that Ellery had not deposited the current rentals
of P20 per month. Ellery opposed the motion alleging that the MTC did
not fix in its judgment the monthly rental to be paid during his
continued stay in the premises so that he is not duty bound to pay the
same. Decide the motion for execution of the judgment filed by Indit.
Answer:
Motion for execution is granted. Although the decision did not
specifically order Ellery to pay the monthly rentals of P20 per month
from the date thereof until he vacated the leased premises, the omission
does not prelude the RTC from ordering the execution of the decision for
failure of the defendant to deposit in court the current monthly
rentals. The fact that Ellery posted a supersedeas bond of P400 in order
to stay execution pending appeal is a commitment on his part to deposit
the current rental of P20 per month. (Sec.8 of Rule 70; Dehesa vs.
Maclalag, 81 SCRA 53).
Summary procedure; ejectment; supersedeas bond
1990 (3)
While the ejectment case was pending before the Municipal Court,
Juan religiously deposits all current rentals. In due time, the judge
ordered Juan to pay all rents until he vacates the premises as well as
attorneys fees in the amount of P5,000.00. Maria
moves for the
immediate execution on the ground that Juan Santos did not deposit the
attorneys fees of P5,000.00 and that he did not put supersedeas bond
for the award.
Should
reasons.

the

court

grant

the

immediate

execution?

Decide

with

Answer:
No, because a supersedeas bond covers only the rent unpaid up to
the time of the judgment. Since Juan deposited all the current rentals
while the ejectment case was pending, a supersedeas bond is not
required. (Once vs. Gonzales, 76 SCRA 258). Attorneys fees are not
required to be deposited in order to stay execution. (Sec. 8 of Rule
70).
Summary procedure; immediately executory
1996 No. 7;
2)
In a case for illegal detainer under the Revised Rules on
Summary Procedure, the Municipal Trial Court rendered a decision in

Page 94 of 172

favor of A, the lessor, ordering B, the lessee, to vacate A's apartment

and to pay the back rentals. B appealed to the Regional Trial court
which affirmed the Municipal Trial Court's decision. A, anticipating
another appeal by B, filed a motion for execution pending appeal
pursuant to Section 21 of the Revised Rules on Summary Procedure. B,
likewise within the reglementary period, filed a petition for review of
the Regional Trial Court's decision with the Court of Appeals.
a)
May the Regional Trial Court grant A's motion for execution
pending appeal after B filed his petition for review with the Court of
Appeals? Explain.
b)
May B validly oppose the motion for execution pending appeal
on the ground that the motion is not based on the good reasons for which
an execution pending appeal may be Issued under Section 2. Rule 39 of
the Rules of Court? Explain.
Answer:
2. a) Yes, because the decision of the Regional Trial Court is
immediately executory despite the appeal. (Sec. 21)
b) No, because Sec. 2 of Rule 39 is not applicable to this case
which falls under Summary Procedure.
Summary procedure; motion for recon
1989 (17)
17.1) Dalmacio filed a civil case against Cadio for the collection
of P5,000 in the MTC of Bacoor. After an examination of the complaint,
the judge dismissed the case outright due to improper venue. Dalmacio
filed a motion for reconsideration of the order of dismissal, contending
that the provision in the promissory note attached to the complaint and
made as the basis thereof clearly shows that the case must be filed with
the Bacoor court. Although realizing and admitting that he committed an
error in dismissing the case, the judge said that he could not revoke
his previous order because no action can be taken on the motion for
reconsideration, which is a prohibited pleading under the Summary Rules.
Is the judge correct? Explain.
Answer:
No, because while a motion for reconsideration is not allowed
under summary procedure rules in order to avoid undue delay, a
revocation of the erroneous order would avoid the delay occasioned by an
appeal by Dalmacio from the order of dismissal and a reversal of the
said order by the RTC. (Heirs of Olivas vs. Flor, 161 SCRA 393)
Another Acceptable Answer:
(1) No, because the judge may correct his error under the inherent
power of the court to make the order conform to law and justice.
(2) Yes, because the Summary Procedure rules do not allow the
filing of a motion for reconsideration. The remedy of plaintiff is to
appeal from the order.
Summary procedure; motion for recon
1990 (4)
Juan appeals the decision against him to the RTC which affirmed in
toto the lower courts decision. Juan then filed a motion for
reconsideration.
Maria
moves
to
strike
out
the
motion
for
reconsideration as it is a prohibited pleading under the Rules on
Summary Procedure.
Is this tenable? Decide with reasons.
Answer:
No, because the rule on prohibited pleadings in summary procedure
is applicable only to the Metropolitan and Municipal Trial Courts.
(Glakihaca vs. Aquino, Jan. 12, 1990).

Page 95 of 172

Summary procedure; motion to dismiss

1990 (2)
In the same controversy, after the demand letter was sent and Juan
failed to comply therewith, the lawyer of Maria filed the ejectment case
in the Municipal Court of Antipolo without going through the
conciliation process at the barangay level as required under P.D. No.
1508. The amount due is P1,500.00, hence summary procedure was followed.
May Juan file a motion to dismiss for non-compliance with the
requirements of the said decree? State your reasons.
Answer:
No, because a motion to dismiss is not allowed in summary
procedure. Moreover, the requirement of prior recourse to the barangay
conciliation is not applicable since parties did not reside in the same
city or municipality or in adjoining barangays of different cities or
municipalities.
Summary procedure; motion to quash
1989 (16)
16.1) Edison was charged with the crime of less serious physical
injuries in the MetroTC of Manila. Under the Revised Penal Code, the
penalty prescribed for this offense is arresto mayor. Aside from the
recital of the facts constituting the offense, the information alleged
that the offended party suffered actual damages in the amount of
P25,000. Instead of submitting his counter-affidavits as required by the
court, Edison filed a motion to quash contending that the court had no
jurisdiction over the case since the amount claimed as damages exceeds
the jurisdictional limit of the trial court in civil cases. If you were
the judge trying the case, what would you do with the motion filed? How
would you dispose of the question of jurisdiction raised in the said
motion? Explain.
Answer:
I would deny the motion to quash inasmuch as such a motion is not
allowed in Summary Procedure. The criminal case where the penalty
prescribed by law for the offense charged does not exceed six months of
imprisonment is governed by summary procedure.
On the question of jurisdiction, Summary Procedure applies
irrespective of the civil liability arising from the offense. Hence the
fact that the civil liability exceeds P20,000 does not deprive the
MetroTC of jurisdiction.
Summary procedure; procedure in criminal cases
1989 (16)
16.2) An information for slight physical injuries was filed
against Diego in the MTC of Cainta, after which the judge directed him
to appear and submit counter-affidavits and those of his witnesses on
September 12, 1989. Diego failed to appear on the said date. Thereafter,
the judge rendered judgment convicting Diego of the offense charged
based on the affidavits submitted by the complainant. Diego contend that
this judgment is a nullity. Decide.
Answer:
Diegos contention is correct. Under Summary Procedure rules, the
failure of Diego to appear and submit counter-affidavits on the date
specified may be a ground for the judge to issue a warrant for his
arrest upon a finding of probable cause. However, the judge may not
render a judgment of conviction of the offense charged based on the
affidavits submitted by the complainant. He should set the case for
arraignment and trial if Diego pleads not guilty. Only after trial may
the judge render a judgment of conviction. (Sec.10 and 11)
Summary procedure; prohibited motion

Page 96 of 172

2004 NO. II
B. Charged with the offense of slight physical injuries under an
information duly filed with the MeTC in Manila which in the meantime had
duly issued an order declaring that the case shall be governed by the
Revised Rule on Summary Procedure, the accused filed with said court a
motion to quash on the sole ground that the officer who filed the
information had no authority to do so. The MeTC denied the motion on
the ground that it is a prohibited motion under the said Rule.
The accused thereupon filed with the RTC in Manila a petition for
certiorari in sum assailing and seeking the nullification of the MeTCs
denial of his motion to quash.
The RTC in due time issued an order
denying due course to the certiorari petition on the ground that it is
not allowed by the said Rule. The accused forthwith filed with said RTC
a motion for reconsideration of its said order. The RTC in time denied
said motion for reconsideration on the ground that the same is also a
prohibited motion under the said Rule.
Were the RTCs orders denying due course to the petition as well
as denying the motion for reconsideration correct? Reason. (5%)
Summary procedure; prohibited pleadings; remedies
1996 No. 7;
1)
A brought an action for unlawful detainer against B in the
Municipal Trial Court. B filed a motion to dismiss on the ground of lack
of cause of action for failure to first refer the dispute to the
Barangay Lupon. Acting on B's motion, the case was dismissed. A files a
petition for certiorari with the Regional Trial court assailing the
Municipal Trial Court's dismissal order on the ground that B's motion to
dismiss is a prohibited motion under the Revised Rules on Summary
Procedure.
a)
b)

Is A's contention correct? Explain.

Is certiorari the proper remedy? Explain.

Answer:
1. a) No, because the Revised Rule on Summary Procedure allows a
motion to dismiss on the ground of failure to comply with the provision
on referral to Lupon. (Sec. 19-A)
b) No, because the
dismissal order is correct.

proper

remedy

is

appeal.

Moreover,

the

Summary procedure; violation of municipal ordinance

1993 No (18)
On May 20,
prosecutors office
carries a penalty of
committed on May 11,

1992, the police charged accused before the

with violation of a municipal ordinance which
six months imprisonment. The offense was allegedly
1990.

On October 2, 1992, the corresponding information was filed with

the Municipal Trial Court.
Accused moved to quash the information on the ground that the
crime had prescribed for the reason that the information was filed
beyond the two-month period from the date of the alleged offense.
For its part, the prosecution contended that the prescriptive
period was suspended upon the filing of the complaint against accused
with the Office of the Prosecutor.
Who is correct? Explain.
Answer:
The accused is correct. The offense charged, violation of a
municipal ordinance, is governed by the Rule on summary Procedure. Under
the 1988 amendment of Section 1, Rule 110, of the 1985 Rules on Criminal
Procedure, the filing of a complaint with the prosecutors office

Page 97 of 172

interrupts the period of prescription of the offense charged. However,

this provision applies to offenses not subject to the rule on summary
procedure in special cases, according to the opening phrase is said
Section 1, Rule 110. Consequently, when the corresponding information
was filed with the NTC, the offense had already prescribed.
Alternative Answer:
The Prosecutor is correct. The filing of the complaint by the
police with the Prosecutors office on May 20, 1993 interrupted the
period of prescription of the offense charged. It was clearly the
intention of the 1988 amendment to apply the same to all offenses,
including those subject to the rule of Summary Procedure.

Criminal Procedure
Criminal procedure; acquittal; effect
2002 No. XIII.
A.
Delia sued Victor for personal injuries which she allegedly
sustained when she was struck by a car driven by Victor. May the court
receive in evidence, over proper and timely objection by Delia, a
certified true copy of a judgment of acquittal in a criminal prosecution
charging Victor with hit-and-run driving in connection with Delias
injuries? Why? (3%)
SUGGESTED ANSWER:
A.
the act or
exist, the
[Rule 111,

If the judgment of acquittal in the criminal case finds that

omission from which the civil liability may arise does not
court may receive it in evidence over the objection by Delia.
sec. 2, last paragraph].

ALTERNATIVE ANSWER:
If the judgment of acquittal is based on reasonable doubt, the
court may receive it in evidence because in such case, the civil action
for damages which may be instituted requires only a preponderance of the
evidence. (Art. 29, Civil Code).
Criminal procedure; allegations of aggravating circumstances
2001 No. VII.
The prosecution filed an information against Jose for slight
physical injuries alleging the acts constituting the offense but without
anymore alleging that it was committed after Joses unlawful entry in
the complainants abode.
Was the information correctly prepared by the prosecution? Why?
(5%)
SUGGESTED ANSWER:
No. The aggravating circumstance of unlawful entry in the
complainants abode has to be specified in the information; otherwise,
it cannot be considered as aggravating. (Sec. 8 of Rule 110, Revised
Rules of Criminal Procedure)
ALTERNATIVE ANSWER:
The information prepared by the prosecutor is not correct because
the accused should have been charged with qualified trespass to
dwelling.
Criminal procedure; amendment and substitution of information
1994 No (3)
3.a) Within the context of the rule on Criminal Procedure,
distinguish an amendment from a substitution of an information.
Answer:
3.a) An amendment may be made in substance and form, without leave
of court, at any time before an accused pleads, and thereafter and
during the trial as to all matters of form, by leave and at the
Page 98 of 172

discretion of the court, when the same can be done without prejudice to
the rights of the accused. Substitution may be made if it appears at any
time before judgment that a mistake has been made in charging the proper
offense, in which case, the court shall dismiss the complaint or
information upon filing of a new one charging the proper offense in
accordance with Rule 119, Sec. 11, provided that the accused would not
be placed thereby in double jeopardy and may also require the witnesses
to give bail for their appearance at the trial. )Sec. 14, Rule 110).
Criminal procedure; amendment of information
2001 No. VIII.
Amando was charged with frustrated homicide. Before he entered
his plea and upon the advice of his counsel, he manifested his
willingness to admit having committed the offense of serious physical
injuries. The prosecution then filed an amended information for serious
physical injuries against Amando.
What steps or action should the prosecution take so that the
amended information against Amando which downgrades the nature of the
offense could be validly made? Why? (5%)
SUGGESTED ANSWER:
In order that the amended information which downgrades the nature
of the offense could be validly made, the prosecution should file a
motion to ask for leave of court with notice to the offended party.
(Sec.14 of Rule 110, Revised Rules of Criminal Procedure). The new rule
is for the protection of the interest of the offended party and to
prevent possible abuse by the prosecution.
Criminal Procedure; amendment of information; double jeopary; bail;
change of plea
2002 No. IX.
A.
D and E were charged with homicide in one information.
Before they could be arraigned, the prosecution moved to amend the
information to exclude E therefrom. Can the court grant the motion to
amend? Why? (2%)
B.
On the facts above stated, suppose the prosecution, instead
of filing a motion to amend, moved to withdraw the information
altogether and its motion was granted. Can the prosecution re-file the
information although this time for murder? Explain (3%)
C.
If an information was filed in the RTC-Manila charging D
with homicide and he was arrested in Quezon City, in what court or
courts may he apply for bail? Explain. (3%)
D.
D was charged with theft of an article worth p15,000.00.
Upon being arraigned, he pleaded not guilty to the offense charged.
Thereafter, before trial commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilt but only to estafa
involving P5,000.00. Can the court allow D to change his plea? Why? (2%)
SUGGESTED ANSWER:
A.
Yes, provided notice is given to the offended party and the
court states its reasons for granting the same. (Rule 110, sec. 14).
B.
Yes, the prosecution can re-file the information for murder
in substitution of the information for homicide because no double
jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685
(1994)].
C.
D may apply for bail in the RTC-Manila where the information
was filed or in the RTC-Quezon City where he was arrested, or if no
judge, thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein. (Rule
114, sec. 17).

Page 99 of 172

D.
No, because a plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included in the offense
charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not
necessarily included in theft of an article worth P15,000.00
Criminal procedure; amendment of information; supervening events
1997 No. 9:
A was accused of homicide for the killing of B. During the trial,
the public prosecutor received a copy of the marriage certificate of A
and B.
(a)
Can the public prosecutor move for the amendment of the
information to charge A with the crime of parricide?
(b)
Suppose instead of moving for the amendment of the
information, the public
prosecutor
presented
in evidence the
marriage certificate without objection on the part of the defense, could
Abe convicted of parricide?
Answer:
(a) No. The Information cannot be amended to change the offense
charged from homicide to parricide. Firstly, 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. The amendment is substantial because
It will change the nature of the offense. (Sec. 14 of Rule 110; Dionaldo
us. Dacuycuy. 108 SCRA 736).
(b) No.
A can be convicted only of homicide not of parricide
which is a graver offense. The 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) and (2} Art. III. 1987
Constitution),
Criminal procedure; bail
1991 No. II:
Claudio Ty was charged with murder in an information filed with
the Regional Trial Court in Dumaguete City. Through counsel, he filed an
application for bail. Without conducting a hearing on said application
and without giving the prosecution an opportunity to comment thereon,
the judge granted bail to Ty after examining the complaint and the
affidavit attached to the bail application which. In the evaluation of
the judge, tend to show that the evidence of guilt is not strong. The
prosecution moved for reconsideration of the order granting ball,
contending that the procedure followed by the judge was irregular,
(a) Was the procedure followed by the judge in granting bail
correct?
Answer;
(a) No, because the prosecution should have been given an
opportunity to comment on the application and to present strong evidence
of guilt. [People v. Sola, 103 SCRA 393)
(b)
If
the
judge
denies
the
prosecution's
motion
for
reconsideration, what remedy or remedies may the prosecution pursue if
it wishes to assail the order before the appellate court?
Answer;
(b) The prosecution may file a petition for certiorari and
mandamus with the Court of Appeals or the Supreme Court in order to
nullify the order of the RTC and to compel it to hold a hearing. It may
also ask for a writ of preliminary inj unction against the order
granting ball.
(c) Supposing that Ty, after trial, was found guilty of murder
and was sentenced to reclusion perpetua, and he appealed to the Supreme
Court, is he entitled to bail during the pendency of such appeal?

Page 100 of 172

Answer:
(c) No, Ty is not entitled to bail as a matter of right because
the evidence of his guilt is so strong that it resulted in his
conviction by the trial court. However, on exceptional grounds, he may
be granted bail on appeal at the discretion of the court. (Teehankee v.
Director of Prisons, 76 Phil. 756)
(d) Supposing that Ty was convicted of the lesser offense of
homicide and was sentenced to a penalty, the maximum of which is within
the range of reclusion temporal and he appealed to the Court of Appeals,
is he entitled to bail during the pendency of such appeal?
Answer:
(d) No, he is not entitled to bail as a matter of right, because
he may on appeal be found guilty of murder and sentenced to reclusion
perpetua.
(e) In relation to (d) above, the Court of Appeals did not affirm
or modify the Judgment.
Instead, it expressed the opinion that the
crime committed is murder and that the penalty should be reclusion
perpetua, and. accordingly certified the case to the Supreme Court for
final determination. Did it act properly?
Answer:
(e) No, the Court of Appeals should have rendered judgment
imposing the penalty of reclusion perpetua, refrained from entering
judgment, and certified the entire record to the Supreme Court for
review. (People v. Daniel, 86 SCRA 367; Sec. 13 of Rule 124)
Criminal procedure; bail
1993 No (9)
Accused was charged with the crime of kidnapping with murder. The
information recommended no bail, the charge being a capital offense
which is non-bailable.
After entering a plead of not guilty, accused filed an application
for bail. The application was opposed by the prosecution.
While the prosecution was still presenting evidence in support of
its opposition to the application for bail, the trial judge issued an
order fixing bail of P100,000.00 for the provisional liberty of accused.
The order reads.
After due consideration of the testimonial and documentary
evidence presented by the prosecution, this Court finds reasonable
ground to believe that no strong evidence exists against accused.
WHEREFORE, the application for bail is granted. Accused is granted
bail, which is fixed P100,000.00, for his provisional liberty>
Did the trial judge act correctly?Why?
Answer:
No, because since the accused was charged with an offense
punishable by reclusion perpetua or higher, he is not entitled to bail
as a matter of right when evidence of guilt is strong. It was premature
for the court to grant bail while the prosecution was still presenting
evidence in support of its opposition to the application for bail. The
prosecution had the right to present all evidence to show the guilt of
the accused before the court resolved the motion for bail.
Criminal procedure; bail
1994 No (12)
Ana is the lone eye witness to the brutal murder of Bruno
allegedly committed by accused Carlo. She deliberately refuses to appear
on the scheduled dates for the taking of her testimony for fear of
reprisal from Carlos die-hard followers.

Page 101 of 172

1. May Ana be ordered to post bail?

2. May the court motu proprio order her to post bail?
3. How shall Ana be proceeded against if she refuses to give bail?
4. What protection may Ana avail if in case she decides to testify
at the trial?
Answer:
1. Yes, Ana may be ordered to post bail. When the court is
satisfied, upon proof or oath, that a material witness will not testify
when required, it may upon motion of either party order the witness to
post bail in such sum as may be deemed proper. (Sec.6, Rule 119).
2. NO. The rules require that the order to post bail is upon
motion of either party.
3. If Ana refuses to post bail, the court shall commit her to
prison until she complies or is legally discharge after her testimony
has been taken.
4. In case Ana decides to testify, she may avail of the benefits
under the Witness Protection Act.
Criminal procedure; bail
1995 No. 12:
1.
May ball be granted even if what is charged is a capital
offense and the evidence of guilt is strong? Explain.
2.
Boyet was born on 6 January 1979, On 15 February 1995 he was
arrested on a charge of raping on 14 February 1995 his first cousin
Lorna, a 13-year old girl.
While the prosecution recommended no bail
for Boyet since the evidence against him was strong, Boyet nevertheless
applied for bail.
Should Boyet be granted bail. Explain. Answer;
1.
Although bail is not a matter of right when the accused is
charged with a capital offense and the evidence of guilt is strong,
there are rulings that in exceptional cases, the court has discretion to
grant bail on such cases. (Barinaga vs. Tamin, 226 SCRA 206]
2.
Yes, because a privileged mitigating circumstance will
be
considered in determining whether an offense is bailable or not. (Bravo
vs. Borja 134 SCRA 466)
Criminal procedure; bail
1996 No. 12:
4)
Accused was charged with murder. At the hearing of his
application for bail, the prosecution manifested that it was ready to
present evidence to prove that the guilt of the accused is strong. The
defense, however, contended that the report and documents/papers in
support of the prosecutor's certification of probable cause in the
information is sufficient to determine whether the evidence of guilt is
strong, thereby dispensing with the presentation of the prosecution's
evidence.
As judge, how would you resolve the contention of the defense?
Explain.
Answer:
4)
I would overrule the contention of the defense because the
prosecution has the right to present evidence to prove that evidence of
guilt is strong. (Sec. 8 of Rule 114) A hearing in indispensable.
Criminal procedure; bail
1999 No. XIV
a.
discretion?

When is bail a matter of right and when is it a matter of

(2%)

Page 102 of 172

b.

In what forms may bail be given? (2%)

c.
When the accused is entitled as a matter of right to
bail, may the Court refuse to grant him bail on the ground that there
exists a high degree of probability that he will abscond or escape?
Explain. (2%)
d.
your answer,

May the Court require a witness to post bail? Explain

(2%)

SUGGESTED ANSWER:
a.

When Bail is a matter of right:

All persons in custody shall (a) before or after conviction by

the metropolitan and municipal trial courts, and (b) before conviction
by the RTC 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 recognizance as prescribed by law
or Rule 114. (Sec. 4, Rule 114, Rules of Court, as amended by Circular
No. 12-94.)
When bail is a matter of discretion:
Upon conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment, on application of the accused.
If the penalty of imprisonment exceeds six 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 circumstances:
(a)
That the accused is a recidivist, quasi-re-cidivist or
habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b)
That the accused is found to have previously escaped from
legal confinement, evaded sentence, or has violated the conditions of
his bail without valid justification;
(c)
That the accused committed the offense while on probation,
parole, or under conditional pardon;
(d)
That the circumstances of the accused or his case indicate
the probability of flight if released on bail; or
(e)
That there is undue risk that during the pendency of the
appeal, the accused may commit another crime. (Sec. 1, Id.)
b.
Bail may be given by a corporate surety, or through a
property bond, cash deposit or recognizance. (Sec. 1, Id.)
c.
If bail is a matter of right, it cannot be denied on the
ground that there exists a high degree of probability that the accused
will abscond or escape. What the court can do is to increase the amount
of the bail. One of the guidelines that the judge may use in fixing a
reasonable amount of bail is the probability of the accused appearing in
trial. Sec 9[g], Id.)
d. Yes. The court may require a witness to post bail if he is a
material witness and bail is needed to secure his appearance. The rules
provide that when the court is satisfied, upon proof or oath, that a
material witness will not testify when required, 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
taken. (Sec. 6, Rule 119, Rules of Court)
Criminal procedure; bail; appeal
1998 No XIII
In an Information charging them of Murder, policemen A, B and C
were convicted of Homicide. A appealed from the decision but B and C did
not. B started serving his sentence but C escaped and is at large. In
the Court of Appeals, A applied for bail but was denied. Finally, the

Page 103 of 172

Court of Appeals rendered a decision acquitting A on the ground that the

evidence pointed to the NPA as the killers of the victim.
1.
Was
the
Court
application for bail proper? [2%]

of

Appeal's

denial

of

A's

2.
Can B and C be benefited by the decision of the Court of
Appeals? [3%]
SUGGESTED ANSWER:
1,
Yes, the Court of Appeals properly denied A's application
for ball. The court had the discretion to do so. Although A was
convicted of homicide only, since he was charged with a capital offense,
on appeal he could be convicted of the capital offense.
(Obosa vs.
Court of Appeals, 266 SCRA 281.)
ALTERNATIVE ANSWER:
Under Circular No. 2-92, A 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 Appeals which is favorable and applicable to him.
(Sec.
11 [a]. Rule 122, Rules of Criminal Procedure.) The benefit will also
apply to C even if his appeal is dismissed because of his escape.
Criminal procedure; bail; reduction
1989 (13)
1989 13.2) Florentino was charged with bigamy in the RTC of
Manila, Branch 15. The trial judge issued the corresponding warrant of
arrest and fixed the bail at P12,000. Subsequently, Florentino was
arrested in San Fernado, Pampanga, and detained in the municipal jail of
the said town. He requested the judge of the MTC of San Fernando,
Pampanga, to order his release on a reduce bail. The MTC judge agreed to
reduce the amount of the bail to P1,000 provided that the same be posted
in cash, which the accused did. Was the reduction of the bail proper?
Explain.
Answer:
No, because the MTC Judge of San Fernado, Pampanga had no
authority to approve the bail, much less to reduce the amount thereof
even if posted in cash. Since Florentino was arrested in San Fernado,
Pampanga, he should have filed the bail in any RTC of said place, and
only if there is no judge thereof available could he have filed it with
the MTC Judge of San Fernando, Pampanga.
Criminal procedure; bail; where to apply
1989 (13)
13.1) Abraham was charged with homicide in the RTC of Manila,
Branch 10. The trial judge issued the corresponding warrant of arrest
and fixed the bail at P30,000. Before Abraham could be arrested, he
filed the fixed bail with the MetroTC of Manila, Branch 3, and the judge
thereof approved the same. Was the approval of the bail regular? Is the
bail valid? Explain.
Answer:
No, because the bail should have been filed with the RTC of
Manila, Branch 10, where the case was pending, or, in the absence or
unavailability of the judge thereof, with another branch of the same
court in Manila. The MetroTC of Manila had no authority to approve the
bail. (Secs.14 and 16 of Rule 114)
Criminal procedure; BP22; civil action deemed included
2001 No. IV.

Page 104 of 172

Saturnino filed a criminal action against Alex for the latters

bouncing check. On 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. The court allowed Saturnino to file a civil
action separately and proceeded to hear the criminal case. Alex filed a
motion for reconsideration contending that the civil action is deemed
included in the criminal case. The court reconsidered its order and
ruled that Saturnino could not file a separate action.
Is the courts
correct? Why? (5%)

order

granting

the

motion

for

reconsideration

SUGGESTED ANSWER:
Yes, the courts order granting the motion for reconsideration is
correct. The Rules provide that the criminal action for violation of
B.P. 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, Revised Rules of Criminal Procedure]
Criminal procedure; BP22; demurrer to evidence
2003 No. XII.
In an action for violation of Batas Pambansa Big. 22, the court
granted the accuseds demurrer to evidence which he filed without leave
of court. Although he was acquitted of the crime charged, he, however,
was required by the court to pay the private complaint the face value of
the check. The accused filed a Motion of Reconsideration regarding the
order to pay the face value of the check on the following grounds:
(a) the demurrer
aspect of the case; and

to

evidence

applied

only

too

the

criminal

(b) at the very least, he was entitled to adduce controverting

evidence on the civil liability.
Resolve the Motion for Reconsideration. (6%)
SUGGESTED ANSWER:
(a) The Motion for Reconsideration should be denied. The ground
that the demurrer to evidence applied only to the criminal aspect of the
case was not correct because the criminal action for violation of Batas
Pambansa Blg. 22 included the corresponding civil action. (Sec. 1(b) of
Rule 111).
(b) The accused was not entitled to adduce controverting
evidence on the civil liability, because he filed is demurrer to
evidence without leave of court. (Sec. 23 of Rule 119).
Criminal procedure; civil liability
1996 No. 12:
2)
An information for frustrated homicide failed to allege the
damages incurred by the offended party. At the trial, the court upon
objection of the accused, barred the prosecution from proving the
damages suffered by complainant for the reason that it was not alleged
in the information. Accused presented evidence to prove his innocence.
After trial, the court convicted the accused sentencing him
to
imprisonment without any award of damages.
Was the court correct in disallowing the prosecution from
presenting proof relative to accused's civil liability? Explain briefly.
Answer:
2)
No, in a criminal case, the civil action for recovery of
civil liability is impliedly instituted with the criminal action, unless
the offended party waives the civil action, reserves his right to
institute it separately, or institutes the civil action prior to the
criminal action. Consequently, the prosecution has the right to present
evidence of damages suffered even if it was not alleged.
(Sec. 1 of
Rule 111)

Page 105 of 172

Criminal procedure; complaint/information; discretionary power of

fiscal; injunction
1999 No. XII
a.

Distinguish a Complaint from Information.

(2%)

b.
A filed with the Office of the Fiscal a Complaint for
estafa against B.
After the preliminary investigation, the Fiscal
dismissed the Complaint for lack of merit.
May the Fiscal be compelled
by mandamus to file the case in court? Explain.
(2%)
c.
Will injunction lie to restrain the commencement of a
criminal action? Explain. (2%)
SUGGESTED ANSWER:
a.
In 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 110, 1985 Rules of
Criminal Procedure); 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, Id.)
b.
No.
The 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. The remedy is an
appeal to the Secretary of Justice. (Sec. 4 Rule 112.)
c.
As a general rule, injunction will not lie to restrain a
criminal prosecution except:
(1)
To afford adequate protection to the constitutional rights
of the accused;
(2)
When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions;
(3)

When double jeopardy is clearly apparent;

(4)
Where the charges are manifestly false and motivated by
the lust for vengeance;
(5)
Where there is clearly no prima facie case against the
accused and a motion to quash on that ground has been denied.
(See cases cited in Roberts, Jr., vs. Court of Appeals, 254 SCRA
307 [1996] and Brocka v. Enrile, 192 SCRA 183 [1990].)
Criminal procedure; complex crimes; jurisdiction
2003 No. XIII.
In complex crimes, how is the jurisdiction of a court determined?
4%
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole complex crime
must be lodged with the trial court having jurisdiction to impose the
maximum and most serious penalty imposable on an offense forming part of
the complex crime. (Cuyos v. Garcia, 160 SCRA 302 [1988]).
Criminal procedure; corpus delicti
1990 (19)
Charged with murder, Jorge filed a demurrer to the evidence after
the prosecution rested on the ground that there is no evidence of the
corpus delicti. Several witnesses testified that the accused shot the
victim and threw the body into the ocean. Notwithstanding a diligent
search, the body was not found. Evidence was introduce to the effect
that the waters where the body was thrown is shark-infested.
Is the demurrer tenable? Explain your answer.
Answer:

Page 106 of 172

No, because the testimony of several witnesses that the accused

shot the victim and threw
his body into the ocean which was sharkinfested and that despite diligent search the body was not found, is
sufficient evidence of corpus delicti. In murder, the corpus delicti is
the fact of death, whether or not feloniously caused. It does not refer
to the body of the murdered person. (People vs. Taruc, 16 SCRA 834;
People vs. Fontanosa, 20 SCRA 249)
Criminal procedure; court martial; jurisdiction
1990 (17)
(a) Does a court martial have jurisdiction to try and convict a
soldier, a policeman and a civilian for alleged conspiracy in the crime
of murder? Explain your answer.
(b) may a member of the military, who committed certain violations
of the Articles of War, be tried by a court martial even after his
discharge from the military service? Discuss with reasons.
Answer:
The Bar Chairman has decided to exclude these questions.
Criminal procedure; demurrer to evidence
1989 (14)
14.1) State the rule on demurrer to evidence in the trial of
criminal cases.
Answer:
After the prosecution has rested its case, the court may dismiss
the case on the ground of insufficiency of evidence; (1) on its own
motion after giving the prosecution an opportunity to be heard; or (2)
on motion of the accused filed with prior leave of court. If the court
denies the motion for dismissal, the accused may adduce evidence in his
defense. When the accused files such motion to dismiss without express
leave of court, he waives the right to present evidence and submits the
case for judgment on the basis of the evidence for the prosecution.
(Sec.15 of Rule 119)
14.2) Geronimo was charged with homicide in the RTC of Pasay City.
After his plea of not guilty, the prosecution presented its evidence and
formally offered several exhibits. Before admitting or objecting to the
exhibits offered by the prosecution, Geronimo moved that the case be
dismissed on the ground of insufficiency of evidence. The court denied
the motion. Thereafter, Geronimo called his first witness to the stand.
The prosecution objected, contending that Geronimo waived his right to
present evidence since he never asked leave of court to demur to the
evidence presented by the prosecution. Decide.
Answer:
Objection overruled. The rule on waiver does not apply because the
prosecution had not yet rested its case when Geronimo moved to dismiss
on the ground of insufficiency of evidence.
Criminal procedure; demurrer to evidence
1991 No. XII:
A. After the prosecution rested its case in a criminal action for
rape, the accused filed a demurrer to the evidence.
(a) If the court
evidence in his defense?

denies

said

motion,

may

the

accused

adduce

Answer;
A. (a) If the accused had obtained prior leave of court to file a
demurrer to the evidence, he may adduce evidence in his defense upon
denial of his motion for dismissal.

Page 107 of 172

However, if he had not obtained prior leave of court, he waives

the right to present evidence and submits the case for Judgment on the
basis of the evidence for the prosecution. (Sec. 15 of Rule 19 as
amended)
(b)
actions?

Is

the

rule

on

demurrer

to

evidence

the

same

in

civil

Answer:
(b) No. In civil cases, the defendant has the right to adduce
evidence if his motion for dismissal is denied. However, if the motion
is granted and the order of dismissal is reversed on appeal, he loses
his right to present evidence. (Sec. 1 of Rule 35)
Criminal procedure; demurrer to evidence
1994 No (13)
After the government has rested its case of Rauls trial for
Qualified Theft, Raul, with leave of court, filed a Motion to Acquit
on the ground of lack of evidence proving his guilt beyond reasonable
doubt. The motion was denied on the ground that Raul should have filed a
demurrer to evidence, not a Motion to Acquit. On the same day, without
giving him the opportunity to present his defense, Raul was convicted on
the basis of the evidence adduced by the prosecution.
13.a) Did the trial court correctly deny Rauls motion?
13.b) Was Rauls conviction proper?
Answer:
13.a) No. The court did not correctly deny Rauls motion to
acquit. Demurrer to the evidence and motion to acquit are one and the
same thing. Demurrer to evidence is actually a motion to dismiss the
case based on the insufficiency of the evidence of the prosecution. If
the court finds that the evidence is insufficient, it may dismiss the
case on the ground, and that amounts to an acquittal of the accused.
(Sec. 15, Rule 119).
13.b) No, Rauls, conviction was not proper because he was not
given the opportunity to present his defense. The rule is that if the
court denies the motion for dismissal filed with prior leave of court,
the accused may adduce evidence in his defense. It is only when the
accused files such motion to dismiss without express leave of court that
he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
Criminal procedure; demurrer to evidence
1996 No. 10:
2)
A was charged with the crime of kidnapping with murder.
After the prosecution rested its case. A filed a demurrer to evidence on
ground of insufficiency of evidence to sustain his conviction. The
prosecution filed an opposition. The trial court denied the demurrer and
the motion for reconsideration thereafter filed. A filed a petition for
certio-rari with the Court of Appeals alleging that the denial of the
demurrer to evidence, when there is no evidence against him, constitutes
grave abuse of discretion, and prayed that the Court of Appeals render
judgment acquitting him.
May the trial court's denial of the demurrer to evidence be
properly assailed by a petition for certiorari in the Court of Appeals?
Explain.
Answer:
2)
The question does not state that A had obtained prior leave
of court to file a demurrer to evidence. Without such leave of court, A
has waived his right to present evidence and has submitted the case for
judgment on the basis of the evidence for the prosecution. (Sec. 15 of
Rule 119)

Page 108 of 172

Alternative Answer:
No, because the question of sufficiency of evidence to sustain a
conviction may not be raised in a petition for certiorari. The remedy of
A is to present his evidence and in the event of conviction to appeal.
(Joseph us. Villaluz, 89 SCRA 824)
Criminal procedure; demurrer to evidence
1998 No XIV.
Facing a charge of Murder, X filed a petition for ball. The
petition was opposed by the prosecution but after hearing. the court
granted bail to X. On the first scheduled hearing on the merits, the
prosecution manifested that it was not adducing additional evidence and
that it was resting its case. X filed a demurrer to evidence without
leave of court but it was denied by the court.
1.
Did the court have the discretion to deny the demurrer to
evidence under the circumstances mentioned above? (2%)
2.
If the answer to the preceding question is in the
affirmative, can X adduce evidence in his defense after the denial of
his demurrer to evidence? [1%]
3.
Without further proceeding and on the sole basis of the
evidence of the prosecution, can the court legally convict X for Murder?
(2%)
SUGGESTED ANSWER:
1.
Yes. The Court had the discretion to deny the demurrer to
the evidence, because although the 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.
No.
Because he filed the demurrer to the evidence
without leave.
(Sec. 15, Rule 119, Rules of Criminal Procedure.)
However, the trial court should inquire as to why the accused filed the
demurrer without leave and whether his lawyer knew that the effect of
filing it without leave is to waive the presentation of the evidence for
the accused. (People vs. Flores, 269 SCRA 62.)
3.
Yes. Without any evidence from the accused, the prima facie
evidence of the prosecution has been converted to proof beyond
reasonable doubt.
ALTERNATIVE ANSWER:
If the evidence of guilt is not strong and beyond reasonable
doubt then the court cannot legally convict X for murder.
Criminal procedure; demurrer to evidence
2001 No. I.
Carlos, the accused in a theft case, filed a demurrer to evidence
without leave of court. The court denied the demurrer to evidence and
Carlos moved to present his evidence. The court denied Carlos motion to
present evidence and instead judgment on the basis of the evidence for
the prosecution.
Was the court correct in preventing Carlos from presenting his
evidence and rendering judgment on the basis of the evidence for the
prosecution? Why? (5%)
SUGGESTED ANSWER:
Yes, because the demurrer to the evidence was filed without leave
of court. The Rules 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 judgment on the basis of the evidence for the
prosecution. (Sec. 23 of Rule 119, Revised Rules of Criminal Procedure)
Criminal procedure; demurrer to evidence

Page 109 of 172

2004 NO. III

B. The information for illegal possession of firearm filed against
the accused specifically alleged that he had no license or permit to
possess the caliber .45 pistol mentioned therein. In its evidence-inchief, the prosecution established the fact that the subject firearm was
lawfully seized by the police from the possession of the accused, that
is, while the pistol was tucked at his waist in plain view, without the
accused being able to present any license or permit to possess the
firearm. The prosecution on such evidence rested its case and within a
period of five days therefrom, the accused filed a demurrer to evidence,
in sum contending that the prosecution evidence has not established the
guilt of the accused beyond reasonable doubt and so prayed that he be
acquitted of the offense charged.
The trial court denied the demurrer to evidence and deemed
accused as having waived his right to present evidence and submitted
case for judgment on the basis of the prosecution evidence.
In
time, the court rendered judgment finding the accused guilty of
offense charged beyond reasonable doubt and accordingly imposing on
the penalty prescribed therefor.
Is the judgment of the trial court valid and proper?

the
the
due
the
him

Reason. (5%)

Criminal procedure; dismissal; failure to prosecute

2003 No. XV.
When a criminal case is dismissed on nolle prosequi, can it later
be refilled? (4%)
SUGGESTED ANSWER:
As a general rule, when a criminal case is dismissed
prosequi before the accused is placed on trial and before he
on to plead, this is not equivalent to an acquittal and does
subsequent prosecution for the same offense. (Galvez v.
Appeals, 237 SCRA 685 [1994]).

on nolle
is called
not bar a
Court of

Criminal Procedure; double jeopardy

1987 No (11)
The accused pleaded not guilty to the charge of less serious
physical injuries. Before judgment, the fiscal moved that he be allowed
to file a new information against the accused for a graver crime of
frustrated murder it appearing that the injuries were inflicted with
intent to kill. The defense objected upon the ground that the charge for
less serious physical injuries is included in the offense of frustrated
murder and since he had already pleaded to the lesser charge, the filing
of a new information would constitute second jeopardy. The prosecution
replied that there would be no double jeopardy as the complaint will be
dismissed upon the filing of the information for frustrated murder,
pursuant to Sec. 11, Rule 119 of the 1985 Rules on Criminal Procedure
relevant to situations when mistake has been made in charging the proper
offense. The fiscal argued that the fact of the accuseds intent to kill
was discovered by the prosecution and the complainant only during trial
of the case.
(a) Resolve the motion. Reasons.
(b) Suppose the intent to kill is indicated in the affidavits
witnesses for the complainant which were the basis for the filing of the
complaint, would your resolution be different and if so, why?
Answer:
(a) Motion denied. The charge of less serious physical injuries is
necessarily included in the offense of frustrated murder and under Sec.
11, Rule 119 of the 1985 Rules on Criminal procedure, the dismissal of
the original case upon the filing of the new one can only be done if the
accused cannot be convicted of the offense charged. In this case the
accused can be convicted of less serious physical injuries. Moreover,

Page 110 of 172

the dismissal of the original complaint upon the filing of a new one
charging the proper offense can only be done provided the accused would
not be placed in double jeopardy. In this case the accused would be
placed in double jeopardy. (Sec. 14, Rule 114; People vs. Mogul, 131
SCRA 296)
(b) Motion denied. With more reason should the motion be denied if
the intent to kill is indicated in the affidavits which were the basis
for the filing of the complaint, because not only is the intent to kill
not a new supervening fact, but it is not even a subsequent discovered
fact. (Sec. 7, Rule 117)
Another Alternative Answer:
(a) Motion granted. While intent to kill is not a new supervening
fact which constitute an exception to the rule on identity of offenses
in double jeopardy (People vs, Besa, 74 Phil. 57), an additional
exception has been added in the 1985 Rules on Criminal Procedure;
namely, when the facts constituting the graver charge became known or
were discovered only after the filing of the former complaint or
information. In this case, the intent to kill was discovered only during
the trial of the case, and hence, a new complaint may be filed for
frustrated murder without placing the accused in double jeopardy. (Sec.
7(b) of Rule 117)
(b) Motion denied. The resolution would be different, because in
such case the intent to kill would not fall under the additional
exception of subsequently discovered fact.
Criminal procedure; double jeopardy
1988 (16)
George was charged with falsification. On the date of initial
trial, the fiscal moved for postponement on the ground that the case had
been assigned to a special prosecutor of the DOJ who was out of town to
attend to an urgent case, and who had wired him to request for the
postponement. The fiscal manifested that he was not ready for trial
because he was unfamiliar with the case. The judge then asked the
accused as well as his counsel wether they were amenable to a
postponement. Both George and his counsel insisted on a trial. The judge
ordered the case dismissed.
Upon learning thereof, the special prosecutor file a petition for
certiorari under Rule 65 alleging that the dismissal was capricious and
deprived the Government of due process. George opposed the petition
invoking double jeopardy.
(a) Is double jeopardy a bar to the petition? Explain.
(b) Suppose that trial on the merits had in fact proceeded and the
trial judge, finding the evidence to be insufficient, dismissed the
case, would your answer be the same? Explain.
Answer:
(a) No, because this is not an appeal by the prosecution asserting
a dismissal to be erroneous. It is a petition for certiorari which
assails the order of dismissal as invalid and a nullity because it was
capricious and deprived the Government of due process. Considering that
this was the first motion for postponement of the trial filed by the
fiscal and the ground was meritorious, the judge gravely abuse his
discretion in ordering the case dismissed. If there is no valid
dismissal or termination of the case, there is no basis for invoking
double jeopardy. (People vs. Gomez, 20 SCRA 293)
(b) No, because in such a case, the order of dismissal would be
valid, even if erroneous, and wold be tantamount to an acquittal.
Criminal procedure; double jeopardy
1993 No (6)

Page 111 of 172

For firing a machine gun which caused panic among the people
present and physical injuries to one, two separate information( one for
serious public disturbance and the other for reckless imprudence
resulting in physical injuries) were filed against the accused.
As he pleaded guilty to the charge of reckless imprudence
resulting in physical injuries, the accused was convicted and sentenced
accordingly.
Later the accused sought to dismiss the charge of serious public
disturbance on the ground of double jeopardy.
Is there double jeopardy?Why?
Answer:
No, because the protection against double jeopardy is only for the
same offense. A single act may be an offense against two different
provisions of law and if one provision requires proof of an additional
fact which the other does not, an acquittal or conviction under one does
not bar prosecution under the other.
In this case, the act of firing a machine gun violated two
articles of the Revised Penal Code. Consequently, conviction for one
does not bar prosecution for the other.
Alternative Answer:
Yes, because only one offense of reckless imprudence resulting in
physical injuries and serious public disturbance was committed.
Criminal procedure; double jeopardy
1994 No (4)
4.b) In a case of a prosecution of an accused for estate after his
acquittal of the crime of the crime of illegal recruitment, but which
involves the same set of facts as the first case, can the accused raised
the defense of double jeopardy?
How about res judicata?
Answer:
4.b) N0, the accused cannot raise the defense of double jeopardy
because the offenses of estafa and illegal recruitment are separate
offenses though they involve the same set of facts.
Res judicata is not applicable in the case at bar.
Criminal procedure; double jeopardy
2004 NO. VII
B. SPO1 CNC filed with the Metropolitan Trial Court in Quezon City
(MeTC-QC) a sworn written statement duly subscribed by him, charging RGR
(an actual resident of Cebu City) with the offense of slight physical
injuries allegedly inflicted on SPS (an actual resident of Quezon City).
The Judge of the branch to which the case was raffled thereupon issued
an order declaring that the case shall be governed by the Rule on
Summary Procedure in criminal cases. Soon thereafter, the Judge ordered
the dismissal of the case for the reason that it was not commenced by
information, as required by said Rule.
Sometime later, based on the same facts giving rise to the slight
physical injuries case, the City Prosecutor filed with the same MeTC-QC
an information for attempted homicide against the same RGR.
In due
time, before arraignment, RGR moved to quash the information on the
ground of double jeopardy and after due hearing, the Judge granted his
motion.
Was the dismissal of the complaint for slight physical injuries
proper?
Was the grant of the motion to quash the attempted homicide
information correct? Reason. (5%)
Criminal procedure; double jeopardy; provisional dismissal; bail

Page 112 of 172

2002 No. X.
A.
D was charged with slight physical injuries in the MTC. He
pleaded not guilty and went to trial. After the prosecution had
presented its evidence, the trial court set the continuation of the
hearing on another date. On the date scheduled for hearing, the
prosecutor failed to appear, whereupon the court, on motion of D,
dismissed the case. A few minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court reconsidered its order and
directed D to present his evidence. Before the next date of trial came,
however, D moved that the last order be set aside on the ground that the
reinstatement of the case had placed him twice in jeopardy. Acceding to
this motion, the court again dismissed the case. The prosecutor then
filed an information in the RTC, charging D with direct assault based on
the same facts alleged in the information for slight physical injuries
but with the added allegation that D inflicted the injuries out of
resentment for what the complainant had done in the performance of his
duties as chairman of the board of election inspectors. D moved to quash
the second information on the ground that its filing had placed him in
double jeopardy. How should Ds motion to quash be resolved? (4%)
B.
In a prosecution for robbery against D, the prosecutor moved
for the postponement of the first scheduled hearing on the ground that
he had lost his records of the case. The court granted the motion but,
when the new date of trial arrived, the prosecutor, alleging that he
could not locate his witnesses, moved for the provisional dismissal of
the case. If Ds counsel does not object, may the court grant the motion
of the prosecutor? Why/ (3%)
C.
D was charged with murder, a capital offense. After
arraignment, he applied for bail. The trial court ordered the
prosecution to present its evidence in full on the ground that only on
the basis of such presentation could it determine whether the evidence
of Ds guilt was strong for purposes of bail. Is the ruling correct?
Why? (3%)
SUGGESTED ANSWER:
A.
Ds motion to quash should be granted on the ground of
double jeopardy because the first offense charged is necessarily
included in the second offense charged. [Draculan v. Donato, 140 SCRA
425 (1985)].
ALTERNATIVE ANSWER:
Ds motion to quash should be denied because the two dismissals
of the case against him were on his motion (hence with his express
consent) and his right to a speedy trial was not violated.
SUGGESTED ANSWER:
B.
No, because a case cannot be provisionally dismissed except
upon the express consent of the accused and with notice to the offended
party. (Rule 117, sec. 8).
C.
No, the prosecution is only required to present as much
evidence as is necessary to determine whether the evidence of Ds guilt
is strong for purposes of bail.(Rule 114, sec. 8).
Criminal procedure; effect of death of accused
1995 No. 9:
Donald was convicted of serious physical injuries inflicted on
his househelp Paula. He appealed but died during the pendency of his
appeal.
1.
What is the effect of the death of Donald on his criminal
liability? Explain.
2.
What is the effect of his death on his civil liability based
solely on his criminal act? Explain.

Page 113 of 172

3.
What Is the effect of his death on his civil liability based
on a quasi-delict or tort? Explain.
4.
What is the effect of his death if in the criminal case
Paula did not make the necessary reservation to file a separate civil
action for damages? Explain.
5.
What Is the effect of his death If Paula reserved her right
to file a separate civil action but had not yet done so when Donald
died? Explain.
Answer:
1.
Donald's criminal liability is extinguished by his death.
[Art. 89(1], RPC)
2.
The death of Donald pending appeal extinguishes not only his
criminal liability but also the civil liability based solely thereon.
(People vs. Bayotas, 236 SCRA 239)
3.
His death does not affect his civil liability based on
quasi-delict or tort, [Id.)
4.
If Paula did not make the necessary reservation to file a
separate civil action for damages, she could still file a separate civil
action against the executor/administrator or heirs of the estate of the
accused. (Id.}
Alternative Answer:
Despite the dismissal of the criminal action, the appeal shall
continue with respect to the civil liability for damages of the accused
who will be substituted by his executor/ administrator or heirs. Since
despite the acquittal of an accused he can be made civilly liable under
Sec. 2 of Rule 120 (Roy Padilla vs. CA, 129 SCRA 588; People vs.
Jalandoni, 131 SCRA 454, etc.) a similar rule should be applied in case
of death of an accused.
5.
The death of Donald will not affect Paula's right to file a
separate civil action against the executor/administrator or heirs of
Donald.
Criminal procedure; effect of filing of information
1991 No. XI:
After reviewing the record of a preliminary Investigation of a
homicide case, the Secretary of Justice reversed the resolution of the
Provincial Prosecutor and directed the latter to move for the dismissal
of the Information which had been filed in the Regional Trial Court of
Pasig. The Provincial Prosecutor thus filed such motion.
(a)
May the RTC judge refuse to order the dismissal of the
criminal case and insist on the arraignment and trial of the accused?
Answer:
(a) Yes. Upon the filing of the information, the court acquires
jurisdiction over the criminal action. The subsequent filing of a motion
for dismissal, even upon the direction of the Secretary of Justice, is
addressed for the consideration of the court, and the court in the
exercise of its discretion may grant the motion or deny it and require
the arraignment and trial of the accused to proceed. (Crespo v. Mogul
151 SCRA 462).
(b) If the judge refuses to grant the Provincial Prosecutor's
motion to dismiss,
may a special civil action for mandamus lie to
compel the judge to grant the motion?
Answer:
(b) No, mandamus will not lie because the court has discretion
whether to grant or deny the motion.
Criminal procedure; effect of plea of guilty

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1993 No (2)
Charged with the crime of murder before the Regional Trial Court
of Bulacan, the accused assisted by counsel, pleaded guilty to the
charge. Thereupon, the trial court rendered a judgment convicting the
accused for the crime of murder and sentencing him to suffer reclusion
perpetual and to pay civil indemnity to the heirs of the victim.
Did the trial court act properly?Why?
Answer:
Yes, because it is only when the accused is charged with a capital
offense punishable with death that the court shall conduct a searching
inquiry into the voluntaries and full comprehension of the consequences
of the plea of guilty and require the prosecution to prove his guilt
beyond the precise degree of culpability. The crime charged of murder is
not a capital offense, because the death penalty cannot be imposed under
the Constitution.
Criminal procedure; effect of plea of guilty
1995 No. 11:
Crisanto is charged with murder. At his arraignment the
prosecution witnesses appeared in court together with the heirs of the
victim. Realizing the gravity of the offense and the number of witnesses
against htm Crisanto consulted his counsel de oficio who explained to
him the nature of the charge and the consequences of his plea. Crisanto
then manifested his readiness for arraignment. The information was read
to him in a language he clearly understood after which he pleaded
guilty. To be sure, the Judge forthwith asked him if indeed he fully
understood the implications of his plea and Crisanto readily and without
hesitation answered in the affirmative. The judge, fully convinced that
the plea of the accused was made with the latter's full knowledge of the
meaning and consequences of his plea, then pronounced sentence on the
accused.
1.

Comment on the action of the judge. Explain.

2.
Suppose Crisanto with the assistance of counsel waives the
presentation of evidence by the prosecution saying that, after all, he
has already entered his plea, may the court insist on the presentation
of the evidence for the prosecution? Explain.
3.
Suppose upon plea bargaining Crisanto decides to plead
guilty to the lesser offense of homicide, may the court still require
presentation of evidence? Explain,
4.
After the information was read to Crisanto upon arraignment
and he pleaded guilty to the charge but the facts did not sufficiently
constitute an offense, did his plea of guilt, which has already been
entered in the records, have the effect of supplying what was not
alleged in the information to complete the elements of the offense to
justify his conviction? Explain.
Answer:
1. The Judge erred in pronouncing sentence on the accused without
previously conducting a searching inquiry into the voluntariness and
full comprehension of the consequences of the plea of guilty and
requiring the prosecution to prove the guilt and the precise degree of
culpability. (Sec, 3. Rule 116)
2.

Yes, in accordance with the above rule.

3.
Although Crisanto pleads guilty to a non-capital offense the
court may still require evidence to determine the penalty to be imposed.
(Sec. 4, Rule 116)
4.
No, his plea of guilty did not have the effect of supplying
what was not alleged in the information to complete the elements of the
offense to justify his conviction. His plea merely admits the truth of
the facts alleged in the information.

Page 115 of 172

Criminal procedure; effect of plea of guilty

1996 No. 13:
2)
X was charged with murder attended by treachery and evident
premeditation. During arraignment, X, assisted by counsel,
pleaded
guilty with the qualification "hindi ko sinadya patayin", X's counsel
assured the court that he fully apprised X of the Information, the
nature of the charge, and the consequences of his plea. X even waived
the prosecution's presentation of evidence against him.
The court
convicted X of murder,
a)

Was the plea of guilty entered valid? Explain.

b)
May the prosecution dispense with the
evidence despite the waiver of the accused? Explain.

presentation

of

Answer;
2. a) No, the plea of guilty by X with the qualification "Hindi
ko sinadya patayin" was a conditional plea of guilty and hence a plea of
not guilty should be entered for him. (Sec. 1-C of Rule 116]
Alternative Answer;
No, because when the accused pleads guilty to a capital offense,
the court shall conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea. The court should not
rely on the assurance of the counsel of the accused for this purpose.
(Sec. 3 of Rule 116}
b) No. the court should require the prosecution to prove the
guilt and precise degree of culpability of the accused. (Id.}
Criminal procedure; enjoinment of criminal cases; when allowed
1989 (12)
12.1) May the prosecution of a criminal case be enjoined? Explain.
Answer:
The prosecution of a
following exceptional cases:

criminal

case

may

be

enjoined

in

the

1) For the orderly administration of justice;

2) To prevent the use of
oppressive or vindictive manner;

the

strong

arm

of

the

law

in

an

3) To avoid multiplicity of suits;

4) To afford adequate protection to constitutional rights;
5)
In
proper
unconstitutional.

cases,

when

the

statute

relied

upon

is

(Primicias vs. Municipality of Urdaneta, 93 SCRA 462)

Criminal procedure; filing of information; effect
2003 No. XVI.
After the requisite proceedings, the Provincial Prosecutor filed
an Information for homicide against X. The latter, however, timely filed
a Petition for Review of the Resolution of the Provincial Prosecutor
with the Secretary of Justice who, in due time, issued a Resolution
reversing the resolution of the Provincial Prosecutor and directing him
to withdraw the Information.
Before the Provincial Prosecutor could comply with the directive
of the Secretary of Justice, the court issued a warrant of arrest
against X.
The Public Prosecutor filed a Motion to Quash the Warrant of
Arrest and to Withdraw the Information, attaching to it the Resolution
of the Secretary of Justice. The court denied the motion. (6%)
(a)

Was there a legal basis for the court to deny the motion?

Page 116 of 172

(b) If you were the counsel for the accused, what remedies, if
any, would you pursue?
SUGGESTED ANSWER:
a.
Yes, there is a legal basis for the court to deny the motion
to quash the warrant of arrest and to withdraw the information. The
court is not bound by the Resolution of the Secretary of Justice.
(Crespo v. Mogul, 151 SCRA 462 [1987]).
b.
If I were the counsel for the accused, I would surrender the
accused and apply for bail because the offense is merely homicide, a
non-capital offense. At the pre-trial, I would make a stipulation of
facts with the prosecution which would show that no offense was
committed.
Criminal procedure; insufficient information
1992 No. VII;
An information was filed in the proper court against Arturo
charging him with theft of 300 blocks of industrial aluminum worth
P999,000.00 allegedly committed "on or about the period from January
l986 to December23, 1991." Arturo filed a motion to quash the
information on the ground that it was grossly insufficient and fatally
defective since there is such a great gap in the inclusive period of the
alleged commission of the offense. He is, in effect, being deprived of a
reasonable opportunity to defend himself.
In resolving the motion to quash, what basic and ancillary
rulings should the court make so that it can extend to the accused
optimum and adequate relief. Discuss fully.
Suggested Answer;
The court may grant the motion to quash on the ground that the
allegation of the time of commission of the offense is defective because
the period from January 1986 to December 23, 1991, or almost six years,
is too indefinite to give the accused an opportunity to prepare his
defense; or the court may order the amendment of the information or the
submission of a bill of particulars so as to allege the actual date or
at least as near to it as possible in order not to surprise and
substantially prejudice the accused.
Criminal procedure; insufficient information; remedies and effects
1994 No (11)
Chato is charged with the murder of Velay. Before arraignment,
you, as counsel de oficio of Chato discovered that the information
failed to allege any qualifying circumstances.
11.a) How may you properly object to the insufficiency of the
information, and on what ground?
11.b) May you still avail of that remedy after Chato has entered
her plea?
11.c) What course or courses of action may the court take if it
sustains the remedy you seek?
Answer:
11.a) As counsel de oficio for the accused, I can file a motion to
quash based on the ground that the facts charged do not constitute the
crime of murder there being no qualifying circumstances alleged.
(Sec.3a, Rule 117).
Alternative Answer:
11.a) As counsel de oficio for the accused, I will not file a
motion to quash because it will only aggravate the crime charged. As it
is charged, Chato can be convicted only of homicide.
11.b) After Chato has entered her plea, she may no longer move to
quash because she is barred from doing so. (Sec. 1, Rule 117).

Page 117 of 172

11.c) If the court sustains the motion to quash, the court may
order that another information be filed. If the accused is in custody,
he shall remain so unless he shall be admitted to bail. If the
information is not filed within the time specified or within the time
specified in the order, or within such further time as the court may
allow for good cause shown, the accused, if in custody, shall be
discharged therefrom, unless he is also in custody on some other charge.
(Sec.5, Rule 117).
Criminal procedure; jurisdiction over BP22 cases
1989 (12)
12.2) On January 2, 1989, Ernani purchased construction materials
for his new building in Calamba, Laguna, from a hardware store located
in Batangas City and owned by Daniel. On the same date and in payment of
the materials, Ernani issued a Metrobank check (Calamba branch) for
P500,000 which was drawn and signed by him in Calamba. Daniel deposited
the check with the Metrobank, Batangas City branch, but the same was
dishonored for insufficient funds. Despite several demands, Ernani
failed to make good his check so that a case for violation of BP 22 (The
Bouncing Checks Law), after a preliminary investigation thereof was
conducted, was filed with the RTC of Batangas. Ernani moved to quash the
case on the ground of lack of jurisdiction, contending that the case
should have been filed with the RTC of Calamba, Laguna, since the check
was drawn and signed in Calamba. How would you decide the motion?
Explain.
Answer:
Motion to quash is denied. Violation of BP 22 is a transitory or
continuing offense which may be validly tried either in the place where
the check was issued or in the place where the check was dishonored.
Since the check in question was dishonored by the Metrobank in Batangas,
the RTC of Batangas has jurisdiction over the case. (People vs. Grospe,
157 SCRA 154)
Criminal procedure; modification of judgment
1989 (15)
15.2) After the trial of the case involving damage to property
through reckless imprudence, the judge rendered judgment sentencing the
accused to pay a fine of P9,000. Two days after the promulgation of the
decision and before the accused could appeal, the judge, motu propio,
modified the judgment to read as follows: to pay a fine of P9,000 with
subsidiary imprisonment in case of insolvency and to indemnify the
offended party in the amount of P3,000 as actual damages. The accused
contends that this modification is improper. Decide.
Answer:
The modification of the judgment of conviction by imposing
subsidiary imprisonment in case of insolvency is improper, inasmuch as
the new Rules in Criminal Procedure provide that a judgment of
conviction may be modified only on motion of the accused. (This
changes the ruling in People vs. Tamayo, 89 Phil. 209 and People vs.
Espaol, 114 SCRA 911).
However, the modification of the judgment for the indemnification
of the offended party could properly be made upon timely motion of the
prosecution or the offended party. (Ramos vs. Gonong, 72 SCRA 561)
Criminal procedure; motion to quash
2000 No. X.
BC is charged with illegal possession of firearms under an
Information signed by a Provincial Prosecutor. After arraignment but
before pre-trial, BC found out that the Provincial Prosecutor had
no
authority to sign and file the information as it was the City Prosecutor
who has such authority. During the pre-trial, BC moves that the case
against him be dismissed on the ground that the Information is defective

Page 118 of 172

because the officer signing it lacked the authority to do so. The

Provincial Prosecutor opposes the motion on the ground of estoppel as
BC did not move to quash the Information before arraignment. If you are
counsel for BC, what is your argument to refute the opposition of the
Provincial Prosecutor? (5%)
SUGGESTED ANSWER:
I would argue that since the Provincial Prosecutor had no
authority to file the information, the court did not acquire
jurisdiction over the person of the accused and over the subject matter
of the offense charged. (Cudia v. Court of Appeals, 284 SCRA 173
[1999]). Hence, this ground is not waived if not raised in a motion to
quash and could be raised at the pre-trial. (Sec. 8, Rule 117, Rules of
Court).
Criminal procedure; motion to quash; prel. inves.
1998 No XV
1.

Give two (2) grounds to quash an Information.[2%]

2.
If the Information is not accompanied by a certification
that a preliminary investigation has been conducted. Is the Information
void? [3%]
SUGGESTED ANSWER:
1.
(a)

Two grounds to quash an Information are:

That the facts charged do not constitute an offense; and

(b) That the court trying the case has no jurisdiction over the
offense charged or the person of the accused.
Note: The other grounds are:
(c)
to do so;

That the officer who filed the information had no authority

(d)

That it does not conform substantially to the prescribed

form;
(e) That more than one offense is charged except in those cases
in which existing laws prescribe a single punishment for various
offenses;
(f)
extinguished;

That

the

criminal

action

or

liability

has

been

(g) That it contains averments which, if true, would constitute

a legal excuse or justification; and
(h) That the accused has been previously convicted or in jeopardy
of being convicted, or acquitted of the offense charged. (Sec. 3, Rule
117. Rules of Criminal Procedure.)
2. No. The certification which is provided in Sec. 4, Rule 112.
Rules of Criminal Procedure, is not an indispensable part of the
information. (People vs. Lapura, 255 SCRA 85.)
Criminal procedure; multiplicity of offenses; remedies
1996 No. 12:
1)
The information filed against A charged more than one
offense. A has not yet been arraigned.
If you were the lawyer of A,
would you file a motion to quash or a motion for bill of particulars?
Explain.
Answer:
1)
I would file a motion to quash on the ground that more than
one offense is charged. (Sec. 1-e of Rule 117). A motion for bill of
particulars is not proper because there are no defects or details in the
information that need clarification. (Sec. 10 of Rule 116)
Criminal procedure; prejudicial question

Page 119 of 172

1995 No. 10:

Jenny charged her husband Alex with bigamy alleging that when she
married him he already had a prior valid and existing marriage with
Evita, a fact Jenny did not know until lately. Subsequently Alex also
filed a case for declaration of nullity of his marriage with Jenny
claiming that his marriage with her was an absolute nullity since he
discovered that when he contracted marriage with Jenny she had a prior
valid and existing marriage with Brando.
Alex moved to suspend proceedings in his bigamy case on the
ground of prejudicial question alleging that in the event his marriage
to Jenny was declared void ab initio to there would be no second
marriage to speak of and the bigamy charge against him would fail for
want of factual and legal bases.
1.
Explain.

If you were the judge, how would you resolve the motion?

2.
Suppose that Alex filed a complaint for nullity of his
marriage with Jenny on the ground that his consent was obtained at
gunpoint, would your answer be the same? Explain.
3.
Suppose that after Alex was charged with bigamy he filed a
complaint for declaration of nullity of his marriage with Evita. Could
Alex have the bigamy proceedings suspended by invoking prejudicial
question claiming that the outcome of the bigamy case would depend on
whether there was a prior valid and existing marriage, which constitutes
an element of the crime? Explain.
Answer:
1.
I would deny the motion of Alex. When Alex married Jenny
despite his existing marriage with Evita, he was guilty of bigamy. His
subsequent action for declaration of nullity when he discovered that
Jenny had a prior valid and existing marriage with Brando cannot be
raised as a prejudicial question in the bigamy case.
2.
No. the complaint of Alex for nullity of his marriage with
Jenny, on the ground that his consent was obtained at gunpoint, is a
valid prejudicial question. (Prado us. People, 133 SCRA 602)
3.
No, because the fact that he married Jenny before his former
marriage with Evita had been legally dissolved makes him guilty of
bigamy. {Art. 347, RPC)
Alternative Answer:
Yes, because if the first marriage of Alex is declared void ab
initio he did not commit bigamy.
Criminal procedure; prejudicial question
1999 No. XIII
a.

What is a prejudicial question? (2%)

b.
A allegedly sold to B a parcel of land which A later also
sold to X. B brought a civil action for nullification of the second sale
and asked that the sale made by A in his favor be declared valid.
A
theorized that he never sold the property to B and his purported
signatures appearing in the first deed of sale were forgeries.
Thereafter, an Information for estafa was filed against A based on the
same double sale that was the subject of the civil action. A filed a
"Motion for Suspension of Action" in the criminal case, contending that
the resolution of the issue in the civil case would necessarily be
determinative of his guilt or innocence.
Is the suspension of the
criminal action in order? Explain. (2%)
SUGGESTED ANSWER:
a. A prejudicial question is an issue involved in a civil action
which is similar or intimately related to the issue raised in the

Page 120 of 172

criminal action, the resolution of which determines whether or not the

criminal action may proceed. (Sec. 5 of Rule 111.)
ANOTHER ANSWER:
A prejudicial question 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. (Padffla. Civil Code
Annotated, 1984 ed. p. 197.)
SUGGESTED ANSWER:
b. Yes. The suspension of the criminal action is in order because
the defense of A in the civil action, that he never sold the property to
B and that his purported signatures in the first deed of sale were
forgeries, is a prejudicial question the resolution of which is
determinative of his guilt or innocence. If the first sale is null and
void, there would be no double sale and A would be innocent of the
offense of estafa. (Ras v. Rasul, 100 SCRA 125.)
Criminal procedure; prejudicial question
2000 No. IX.
CX is charged with estafa in court for failure to remit to MM
sums of money collected by him (CX) for MM in payment for goods
purchased from MM, by depositing the amounts in his (CXs) personal bank
account. CX files a motion to suspend proceedings pending resolution of
a civil case earlier filed in court by CX against MM for accounting and
damages involving the amounts subject of the criminal case. As the
prosecutor in the criminal case, briefly discuss your grounds in support
of your opposition to the motion to suspend proceedings. (5%).
SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to suspend is not
in order for the following reasons:
(a) The civil case filed by CX against MM for accounting and
damages does not involve an issue similar to or intimately related to
the issue of estafa raised in the criminal action.
(b) The resolution of the issue in the civil case for accounting
will not determine whether or not the criminal action for estafa may
proceed. (Sec. 5, Rule 111, Rules of Criminal Procedure.)
Criminal procedure; prel. inves.; jurisdiction of MTC
1988 (18)
(a) A complaint was filed by
persons for homicide in the MTC. The
to discharge one of the defendants
preliminary investigation and at the

the offended party against three

fiscal filed with the MTC a motion
to be utilized as witness in the
trial of the case on the merits.

As the Municipal trial Judge, rule on the motion with reasons.

Answer:
(a) No, because the municipal trial judge may only conduct a
preliminary investigation of the homicide case. Such a motion to
discharge one of the defendants to be utilized as a witness for the
prosecution may be acted upon only by the court having jurisdiction to
try the case on the merits. (U.S. vs. Inductivo, 40 Phil. 84)
Criminal procedure; prescription of offense
1993 No (10)
On October 14, 1990, Julie was charged before the Metropolitan
Trial Court of Quezon City with the crime of serious slander allegedly
committed on May 12, 1990.
After trial, the court found that Julie had committed the crime of
light-not serious-slander. Accordingly, it convicted Julie of light

Page 121 of 172

slander and sentenced her to pay a fine of P100.00 plus moral damages,
attorneys fees and costs.
On appeal, Julie contended that she may not be convicted of the
crime of light slander because it has already prescribed.
However, the prosecution countered that as Julie did not move for
the quashal of the information on the ground of prescription, she is
deemed to have waived such defense.
How should the appeal be resolved? Explain?
Answer:
The appeal should be resolved in favor of Julie.
Rules on Criminal Procedure as amended, prescription
waived for failure of the accused to assert such ground
quash before he pleads to a complaint or information and
be raised on appeal.

Under the 1985

is not deemed
of a motion to
such ground may

Alternative Answer:
The appeal should be resolved against Julie because the filing of
the complaint with the fiscals office in 1990 interrupted the period of
prescription of the offense charged.
Criminal procedure; prescription of offenses
1987 No (10)
The accused filed a motion to quash the information on two
grounds, to wit, the facts charged do not constitute an offense and
there are averments in the information which, if true, would constitute
a legal justification. Eventually, the accused was convicted. He
appealed to the CA. The new defense counsel discovered that the
information was filed on a Monday and that the last day for the filing
of the information actually fell on the preceding Sunday.
Had the offense prescribed? If it had, could the defense invoke
for the first time on appeal as error, the trial courts non-dismissal
of the information on the ground of prescription?
Answer:
Yes. The offense had prescribed. Where the last day for the filing
of an information falls on a Sunday or legal holiday, the period of
prescription cannot be extended up to the next working day as
prescription automatically sets in. (Yapdiangco vs. Buencamino, 122 SCRA
713)
Yes. The defense may invoke for the first time on appeal the nondismissal of the information on the ground of prescription, inasmuch as
under the 1985 Rules on Criminal Procedure extinction of criminal action
or liability, which includes prescription, is not deemed waived by
failure to move to quash on that ground. (Sec. 8 Rule 117)
Criminal procedure; prescription of offenses
1990 (13)
On February 21, 1990, Magno was stabbed on the right arm by Reyes
at Balara, Quezon City. A complaint for physical injuries was filed
against Reyes with the office of the City Prosecutor on February 28,
1990 as the injuries required five (5) days of medical attendance. The
information for slight physical injuries was filed on May 12, 1990 with
the Quezon Metropolitan Trial Court. Reyes moved to quash the
information on the ground of prescription as it was filed on the 80 th
day, whereas the prescriptive period for slight physical injuries is 60
days.
Should the motion to quash be granted? Decide with reasons.
Answer:
No, because under the 1988 Amendments to the Rules of Criminal
Procedure, the filing of the complaint with the Office of the City

Page 122 of 172

Prosecutor on February 28, 1990 interrupted the prescription of the

offense charged. (Sec1 of Rule 110)
Criminal procedure; pre-trial
1997 No. 7:
Give three distinctions between a pre-trial in a criminal case
and a pre-trial in a civil case.
Answer:
Three distinctions between a pre-trial in a criminal case and a
pre-trial in a civil case are as follows:
(a)
The pre-trial in a criminal case is conducted only "where
the accused and counsel agree" (Rule 118, Sec. 1): while the pre-trial
In a civil case is mandatory.
(Sec. 1 of former Rule 20; Sec, 1 of new
Rule 18).
(b)
The pre-trial in a criminal case does not consider the
possibility of a compromise, which is one important aspect of the pretrial in a civil case. (Sec. 1 of former Rule 20; Sec. 2 of new Rule
18).
(c)
In a criminal case, a pre-trial agreement is required to be
reduced to writing and signed by the accused and his counsel (See; Rule
118, Sec. 4); while in a ctvil case, the agreement may be contained in
the pre-trial order. (Sec. 4 of former Rule 20; See 7 of new Rule 78).
Criminal procedure; pre-trial agreement; approval by court
2004 NO. I
B. Mayor TM was charged of malversation through falsification of
official documents.
Assisted by Atty. OP as counsel de parte during
pre-trial, he signed together with Ombudsman Prosecutor TG a Joint
Stipulation of Facts and Documents, which was presented to the
Sandiganbayan. Before the court could issue a pre-trial order but after
some delay caused by Atty. OP, he was substituted by Atty. QR as defense
counsel.
Atty. QR forthwith filed a motion to withdraw the Joint
Stipulation, alleging that it is prejudicial to the accused because it
contains, inter alia, the statement that the Defense admitted all the
documentary evidence of the Prosecution, thus leaving the accused
little or no room to defend himself, and violating his right against
self-incrimination.
Should the court grant or deny QRs motion?

Reason. (5%)

Criminal procedure; promulgation of judgment

1989 (15)
15.1) The accused was duly notified of the date set for the
promulgation of the decision in the case filed against him. The accused
failed to appear but his counsel was present. The judge ordered the
cancellation of the bail bond posted by the accused and issued a warrant
of his arrest. The judge further ordered that the promulgation of the
decision be held in abeyance until the accused is taken into custody.
Was the action taken by the judge proper? Explain fully.
Answer:
The judge correctly ordered the cancellation (forfeiture) of the
bailbond posted by the accused and the issuance of the warrant of his
arrest upon his failure to appear for the promulgation of the decision
in the case filed against him.
However, the judge erred in holding in abeyance the promulgation
of the decision until the accused is taken into custody, because in such
case the promulgation shall be made by recording the judgment in the
criminal docket and a copy shall be served upon the accused or counsel.
(Sec.6 of Rule 120)
Another Acceptable Answer:

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If the judgment was of conviction for a light offense,

promulgation should be made in the presence of the counsel.

the

Criminal procedure; promulgation of judgment

1997 No. 10:
X, the accused in a homicide case before the Regional Trial
Court. Dagupan Cay, was personally notified of the promulgation of
judgment in his case set for 10 December 1996. On said date. X was not
present as he had to attend to the trial of another criminal case
against him in Tarlac, Tarlac. The trial court denied the motion of the
counsel of X to postpone the promulgation.
(a)
How shall the court promulgate the judgment in the absence
of the accused?
(b)

Can the trial court also order the arrest of X? Answer:

(a) In the absence of the accused, the promulgation shall be made

by recording the Judgment in the criminal docket and a copy thereof
served upon the accused or counsel. (Sec. 6. third par., Rule 120)
(b) No, the trial court cannot order the arrest of X if the
judgment is one of acquittal and, in any event, his failure to appear
was with justifiable cause since he had to attend to another criminal
case against him. (Id.)
Criminal procedure; prosecution of offenses; who should file
2000 No. VIII.
Your friend YY, an orphan, 16 years old, seeks your legal advice.
She tells you that ZZ, her uncle, subjected her to acts of
lasciviousness; that when she told her grandparents, they told her to
just keep quiet and not to file charges against ZZ, their son. Feeling
very much aggrieved, she asks you how her uncle ZZ can be made to answer
for his crime.
(a)

What would your advice be? Explain. (3%)

(b) Suppose the crime committed against YY by her uncle ZZ is

rape, witnessed by your mutual friend XX. But this time, YY was
prevailed upon by her grandparents not to file charges. XX asks you if
she can initiate the complaint against ZZ. Would your answer be the
same? Explain. (2%).
SUGGESTED ANSWER:
(a) I would advise the minor, an orphan of 16 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. 5, Rule 110, Rules of Criminal Procedure.)
(b) Since rape is now classified as a Crime Against Persons
under the Anti-Rape Law of 1997 (RA 8353), I would advise XX to initiate
the complaint against ZZ.
Criminal procedure; provisional dismissal
2003 No. XIV.
Before the arraignment for the crime of murder, the private
complainant executed an Affidavit of Desistance stating that she was not
sure if the accused was the man who killed her husband. The public
prosecutor filed a Motion to Quash the Information on the ground that
with private complainants desistance, he did not have evidence
sufficient to convict the accused. On 02 January 2001, the court without
further proceedings granted the motion and provisionally dismissed the
case. The accused gave his express consent to the provisional dismissal
of the case. The offended party was notified of the dismissal but she
refused to give her consent.
Subsequently, the private complaint urged the public prosecutor
to refile the murder charge because the accused failed to pay the

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consideration which he had promised for the execution of the Affidavit

of Desistance. The public prosecutor obliged and refiled the murder
charge against the accused on 01 February 2003. the accused filed a
Motion to Quash the Information on the ground that the provisional
dismissal of the case had already become permanent. (6%)
(a)

Was the provisional dismissal of the case proper?

(b)

Resolve the Motion to Quash.

SUGGESTED ANSWER:
(a) The provisional dismissal of the case was proper because the
accused gave his express consent thereto and the offended party was
notified. It was not necessary for the offended party to give her
consent thereto. (Sec. 8 of Rule 117).
(b) The motion to quash 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.
There was no double jeopardy because the first case was dismissed before
the accused had pleaded to the charge. (Sec. 7 of Rule 117).
Criminal procedure; remedies; appeal
1993 No (12)
A decision adverse to defendant was rendered by the trial court in
action for recovery of possession of a piece of land. Defendant wanted
to appeal the decision but his lawyer begged off from rendering further
professional services. Within the period of appeal, however, defendant
came to know a man who introduced himself as Atty. Manuel Palma and
volunteered to handle his case.
Thereafter, defendant engaged the services of Atty. Palma and
paid him the professional fee for the handling of his appeal.
Immediately, Atty. Palma filed a notice of appeal. In due course, the
Court of Appeals sent a notice to Atty. Palma giving him forty-five
days within which to file the appellants brief for defendant. However,
the 45-day period expired without the appellants brief being filed.
Directed to show cause why the appeal should not be dismissed for
failure to file the appellants brief within the reglementary period,
Atty. Palma took no action. Consequently, the Court of Appeals
dismissed defendants appeal.
Only after the Court of Appeals resolution dismissing the appeal
had already become final and executory did defendant learn of such
dismissal.
Subsequently investigation made by a friend of defendant disclosed
that Atty. Palma is not a lawyer. Accordingly defendant asked the
court of Appeals to nullify the resolution dismissing his appeal. He
asserted that his representation by a fake lawyer amounted to
deprivation of the right to appeal and, hence, a denial of due process.
On the other hand, the adverse party (plaintiff in the
reconveyance suit) contended that the resolution dismissing the appeal
can no longer be set aside as it had long become final and executory,
and the defendant had lost his right to appeal due to the negligence of
his lawyer (referring to Atty. Palma) for which he must suffer the
consequence.
Should the defendants plea for nullification of the dismissal of
the appeal be granted? Why?
Answer:
Yes, because defendant had not been accorded due process of law
when he lost his right to appeal due to the actions of Atty. Palma who
was not a lawyer. While a client is generally bound by the action of his
counsel, even by the attorneys mistake or negligence, this rule will
not apply where the lawyer turned out to be fake.

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Criminal procedure; remedies; appeal/petition for review

1992 No. VIII:
(a) If the accused is meted the penalty of reclusion perpetua by
the Regional Trial Court, what should he do to have his case reviewed by
the proper appellate court?
Suggested Answer:
(a) If the accused is meted the penalty of reclusion perpetua by
the Regional Trial Court, he should file a notice of appeal to the
Supreme Court which has exclusive appellate jurisdiction. [Sec. 5, Art.
VIII, Constitution; Sec. 3{c) of Rule 122)
(b) If the penalty of reclusion temporal is increased on appeal
by the Court of Appeals to reclusion perpetua, what should the accused
do to have his case reviewed by the Supreme Court?
Suggested Answer:
(b) The accused need not do anything because the Court of Appeals
should render judgment imposing the penalty of reclusion perpetua,
refrain from entering judgment and certify the case to the Supreme Court
for review. [Sec. 13 of Rule 124; People us. Daniel 86 SCRA 511). If the
Court of Appeals does not certify the case to the Supreme Court for
review, the accused should invite the attention of the Court of Appeals
to its duty to do so.
Criminal procedure; remedies; unjust judgment
1993 No (11)
Judge Villamor was the Presiding Judge of the Regional Trial Court
of Quezon City in the criminal case for qualified theft against Ding.
After trial, Judge Villamor acquitted Ding of the charge.
Subsequently, Paterno, the complaining witness in the aforesaid
criminal case, filed a civil action for damages against Judge Villamor
for knowingly rendering an unjust judgment when he acquitted Ding of the
qualified theft. The case was filed in the Regional Trial court of Pasay
City, presided over by Judge Villegas. Judge Villamor filed a motion to
dismiss the civil case for lack of authority on the part of Regional
Trial Court of Pasay City to review his (Judge Villamor) decision.
How should the motion to dismiss be resolved? Why?
Answer:
The motion to dismiss should be granted. The Regional Trial Court
of Pasay City has no authority to review the decision of Judge Villamor
acquitting Ding. To allow Judge Villegas to proceed with the action for
damages against Judge Villamor, a co-equal judge of a co-equal court
would in effect permit a court to review and interfere with the judgment
of co-equal court over which it has no appellate jurisdiction or power
to review.
Alternative Answer:
The motion to dismiss should be denied. Since the criminal case
was terminated with the acquittal of Ding, the civil action for damages
Judge Villamor for knowingly rendering an unjust judgment may properly
be filed with RTC of Pasay City having jurisdiction thereof.
Criminal procedure; rights of the accused
1990 (14)
During the custodial investigation of Jose, a murder suspect, he
was informed of his right to be assisted by counsel, among other
constitutional rights. Jose requested the assistance of Atty. Saldi who
was present when Jose gave his confession. When the case for murder was
filed against him, Jose objected to the admission of his confession on
the ground that he had inadequate assistance of counsel as Atty. Saldi
did not advise him to remain silent during the investigation.

Page 126 of 172

Is the said objection tenable? Explain your answer.

Answer:
No, because Jose was already informed of his right to be assisted
by counsel, among other constitutional rights which include the right to
remain silent. Atty. Saldi had no obligation to advise him to remain
silent during his investigation.
Criminal procedure; rights of the accused
1991 No. XIV:
Felipe Arenas, an employee of ABC Corp., appeared to be Involved
in irregularities in the sale of the corporation's products. He was
asked to account for some undeclared sales amounting to P150,000.00 and,
for that purpose, he was asked to appear on a specified date at an
administrative investigation, to be conducted in accordance with the
corporation's collective bargaining agreement with the employee's union.
Two (2) days before the scheduled investigation. Arenas gave to his
superiors a signed handwritten note stating that he was willing to
settle the irregularities allegedly charged against him in the amount of
P 150,000.00 subject to conditions which the corporation may impose. On
the day of the investigation. Arenas did not show up and has failed to
report for work since then. The corporation charged him with estafa. At
the trial, the prosecution offered in evidence the aforesaid handwritten
note as Exhibit "A". The defense counsel objected to the admission of
the note on the ground that the same was executed without the accused
having been informed of his constitutional right to remain silent and to
have counsel nor was he then assisted by counsel. If you were the Judge,
would you admit the evidence?
Answer;
Yes, the signed handwritten note of Arenas, given two days before
the scheduled administrative investigation, is admissible in evidence
against him, because he was not under custodial investigation when he
executed the same. Hence, the constitutional right to remain silent and
to have counsel was not applicable to him. (People v. Ayson, 175
SCRA216)
Criminal procedure; rights of the accused
1996 No. 13:
4)
X, the accused, was called by the prosecution as the first
witness to testify for the government. X refused to take the stand
invoking his privilege against self-incrimination. On the other hand,
the prosecution contends that X may be compelled to take the witness
stand and claim the privilege only as each question, requiring an
incriminatory answer is put to him.
Can the court order X to testify? Explain.
Answer;
4) No, the court cannot order X to testify because he is the
accused and he is exempt from being compelled to be a witness against
himself [Sec. 1-E of Rule 115; Cabal us. Kapunan, 6 SCRA 1059; Chavez
vs. Court of Appeals 24 SCRA 663). If he were an ordinary witness, not
an accused, he could be ordered to testify and he could claim the
privilege against self-incriminatlon only as each question requiring an
incriminatory answer Is put to him. (Badiong vs. Gonzales, 94 SCRA 906)
Criminal procedure; rights of the accused; valid waiver
1991 No. XIII:
During custodial investigation at the Western Police District,
Mario Margal was informed of his constitutional right to remain silent
and to have competent and independent counsel. He decided to waive his
right to counsel and proceeded to make a statement admitting commission
of a robbery. In the same statement, he implicated Antonio Carreon, his
co-conspirator in the crime.

Page 127 of 172

(a) Is Margal's statement admissible in evidence against him?

Answer:
(a)
No, because under the Constitution, the right of Margal to
remain silent and to counsel during custodial investigation cannot be
waived except in writing and in the presence of counsel, and any
confession or admission in violation of this provision is inadmissible
in evidence against him. (Sec. 12 of Art. III)
Criminal procedure; searches and seizures
1994 No (18)
Bener was the driver of the car that the police searched and from
where they seized a rifle and a number of shells. Bener assails the
legality of the search and seizure on the ground that he is not the
owner of the car nor of the seized items.
Rule on Benders contention?
Answer:
Benders contention is not correct. The mere fact that he is not
the owner of the car or of the seized items does not have any effect on
the legality of the search. If Bener is accused of illegal possession of
firearms, his defense would be that he is only the driver of the car and
knows nothing of the seized items, and if the seizure of the items was
made without a search warrant, he can say that they were illegally
obtained and cannot be admissible in court.
Criminal procedure; speedy trial
1996 No. 12:
3)
Accused was charged with estafa and pleaded not guilty
thereto. The prosecution repeatedly sought and obtained postponements
over the objection of the accused who invoked his right to speedy trial.
At the succeeding hearing, the prosecution again sought postponement on
the ground that the complainant, its only witness, was out of the
country.
If you were counsel of the accused, what course of action would
you take in order that the case against him will be finally dismissed by
the court?
Answer:
3)
I would object to any further postponement, insist on a
trial and move for dismissal on the ground of the right of the accused
to a speedy trial. The dismissal in such a case bars a subsequent
prosecution for the same offense.
Criminal procedure; state witness; qualifications
1990 (15)
Cruz, Pablo and Galino are all charged with the crime of murder
for the killing of Bernardo. The prosecutor moved for the discharge of
Cruz so that he may be utilize as a state witness. The court deied the
motion to discharge because while it found that there was compliance
with the requirement under subparagraphs a, b, c, and d, Section 9 of
Rule 119, the court found non-compliance with subparagraph e, it
appearing that Cruz was convicted of theft three (3) months earlier by
the Municipal Court in Bian, Laguna, which is an offense involving
moral turpitude. The conviction is on appeal before the RTC in Calamba,
Laguna.
Is the trial court correct in denying the motion to discharge on
this ground? Decide with reasons.
Answer:
No, because the conviction of Cruz is still pending appeal before
the RTC of Laguna. Hence, he is not disqualified from being discharged
in order to be a state witness. (Mangubat vs. Sandiganbayan, 143 SCRA

Page 128 of 172

681)
Criminal procedure; state witnesses
1994 No (10)
Louise is being charged with the frustrated murder of Roy. The
prosecutions lone witness, Mariter, testified to having seen Louse
prepare the poison which she later surreptitiously poured into Roys
wine glass. Louise sought the disqualification of Mariter as witness on
account of her previous conviction for perjury.
1. Rule on Louises contention.
2. Can Mariter be utilized as state witness if she is a co-accused
in the criminal case?
Answer:
1. The contention of Louise is not correct. Mariter cannot be
disqualified from being a witness on account of her previous conviction
of perjury.. Previous conviction is not a disqualification because, in
this case, it is not so provided by law. (Sec.20, Rule 130).
2. Mariter, however, cannot be utilized as a state witness if she
is a co-accused in a criminal case because an accused can be discharged
as a state witness if, among five requirements, the accused has not at
any time been convicted of any offense involving moral turpitude. (Sec.
9, Rule 119).
Criminal procedure; searches and seizures; Terry search
1995 No. 1:
2. What is a Terry search (or so-called "stop and frisk")? Is it
Justified under existing law and Jurisprudence? Explain.
Answer;
2.
A Terry search is a stop-and-search without a warrant. It is
justified when conducted by police officers on the bases of prior
confidential information which were reasonably corroborated by other
attendant matters. [Aniag, Jr. vs. Comelec, 237 SCRA 424]
Alternative Answer:
A Terry search is one conducted without a search warrant and is
designed either to determine the identity of a suspicious individual or
to maintain the status quo while the police officer is obtaining more
information. (Posadas us. CA. 188 SCRA 288).
Criminal procedure; third-party claims; intervention
1996 No. 13:
3)
X, driver of Y Bus Co, was charged with homicide, serious
physical injuries and damage to property through reckless imprudence. Y
Bus Co., as employer of X, intervened and filed a third party complaint
against Z, the Insurer of the bus, for subrogation and/or contribution
in the event X is convicted and Y Bus Co is made subsidiarily liable for
damages.
May Y Bus Co. intervene and file said complaint? Explain.
Answer;
3) No, Y Bus Co. may not intervene in the criminal action because
it is not the offended party and It cannot be impleaded as an accused
together with X. Its remedy is to file a separate action against Z. the
Insurer of the bus, in the event X is convicted and Y Bus Co. is made
subsidiarily liable.
Alternative Answer;
Yes, Y Bus Co. may be allowed to intervene Inasmuch as If X were
convicted it would be subsidiarily liable for damages. Under the ruling

Page 129 of 172

in Pajarito vs. Seneris (87 SCRA 275), the judgment against X for
damages may be enforced by execution against Y Bus Co.
Criminal procedure; trial in absentia; automatic review of conviction
1998 No X
1.

What are the requisites of a trial in absentia? [2%]

2.
If an accused who was sentenced to death escapes, is there
still a legal necessity for the Supreme Court to review the decision of
conviction? [3%]
SUGGESTED ANSWER:
1.
The requisites of trial in absentia are: (a) the accused
has already been arraigned; (b) he has been duly notified of the trial;
and (c) his failure to appear is unjustifiable.
(Sec.
14 [2],
Article III. Constitution; Parada vs. Veneracion, 269 SCRA 371 [1997].)
2.
Yes, there is still a legal necessity for the Supreme Court
to review the decision of conviction sentencing the accused to death,
because he is entitled to an automatic review of the death sentence.
(Sees. 3[e] and 10, Rule 122, Rules of Criminal Procedure; People vs.
Espargas, 260 SCRA 539.)
Criminal procedure; venue
1997 No. 18:
Where is the proper venue for the filing of an information in the
following cases?
(a)
The theft of a car in Pasig City which was brought to
Obando, Bulacan, where it was cannibalized.
(b) The theft by X, a bill collector of ABC Company, with main
offices in Makati City, of his collections from customers in Tagaytay
City.
In the contract of employment, X was detailed to the Calamba
branch office, Laguna, where he was to turn in his collections.
(c)
The malversation of public funds by a Philippine consul
detailed in the Philippine Embassy in London,
Answer;
(a) The proper venue is in Pasig City where the theft of the car
was committed, not in Obando where it was cannibalized. Theft is not a
continuing offense. (People v Mercado, 65 Phil 665).
(b) If the crime charged is theft, the venue is in Calamba where
he did not turn in his collections. If the crime of X is estafa, the
essential ingredients of the offense took place in Tagaytay City where
he received his collections, in Calamba where he should have turned in
his collections, and in Makatl City where the ABC Company was based. The
information may therefore be filed in Tagaytay City or Calamba or Makati
which have concurrent territorial Jurisdiction. (Catingub vs. Court of
Appeals, 121 SCRA 106).
(c) The proper court is the Sandiganbayan which has jurisdiction
over crimes committed by a consul or higher official in the diplomatic
service.
(Sec. 4(c). PD 1606, as amended by RA. No. 7975). The
Sandiganbayan is a national court. (Nunez v. Sandiganbayan, 111 SCRA 433
[1982]. It has only one venue at present, which is in Metro Manila,
until RA. No. 7975, providing for two other branches in Cebu and in
Cagayan de Oro, is implemented.
Alternative Answers;
(b) The information may be filed either in Calamba or in Makati
City, not in Tagaytay City where no offense had as yet been committed,
(c)
Assuming that the Sandiganbayan has no jurisdiction, the
proper venue is the first Regional Trial Court in which the charge is
filed (Sec. 15(d). Rule 110, Rules of Court).

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Criminal procedure; warrant of arrest; bail

2004 NO. II
A. RP and State XX have a subsisting Extradition Treaty. Pursuant
thereto RPs Secretary of Justice (SOJ) filed a Petition for Extradition
before the MM Regional Trial Court alleging that Juan Kwan is the
subject of an arrest warrant duly issued by the proper criminal court of
State XX in connection with a criminal case for tax evasion and fraud
before his return to RP as a balikbayan. Petitioner prays that Juan be
extradited and delivered to the proper authorities of State XX for
trial, and that to prevent Juans flight in the interim, a warrant for
his immediate arrest be issued.
Before the RTC could act on the
petition for extradition, Juan filed before it an urgent motion, in sum
praying (1) that SOJs application for an arrest warrant be set for
hearing and (2) that Juan be allowed to post bail in the event the court
would issue an arrest warrant.
Should the court grant or deny Juans prayers?

Reason. (5%)

Criminal procedure; warrantless arrests and searches

1988 (20)
(a) May a person be arrested without warrant?
(b) May a house be searched without a searched warrant? How about
a person, may he be searched without warrant? Explain.
Answer:
(a) A person may be arrested without warrant in the following
cases:
1) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
2) When an offense has in fact just been committed and he has
personal knowledge of the facts indicating that the person to be
arrested has committed it; and
3) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another. (Sec. 5 of Rule 113)
(b) A house may not be searched without a warrant in view of the
constitutional prohibition against unreasonable searches and seizures.
However, a person who has lawfully been arrested may be searched without
a warrant, inasmuch as the search is incidental to a lawful arrest.
(Sec.12 of Rule 126)
Alternative Answer:
(b) A house may be searched without a warrant:
1) with the consent of the owner;
2) when the search is incidental to a lawful arrest but the scope
shall be limited to the area
where the arrestee can reach for a
weapon or for evidence in order to destroy it; and
3) when the object to be seized is within plain view of the
arresting officer and possession
thereof is illegal.
Criminal procedure; warrantless arrests and searches
1996 No. 13:
1) X, common-law wife of accused Y, sobbing, went running from
her residence, just some thirty meters away, to the house of Barangay
Captain Z, complaining that accused Y struck her on the cheek with the
butt of a revolver, causing her to bleed, and that accused Y threatened
to shoot her with a gun. The Barangay Captain, a retired veteran police
officer, accompanied X to the latter's residence to investigate, but on
their way they met accused Y on the road. Thereupon, Barangay Captain Z

Page 131 of 172

confronted accused Y about the complaint of his common-law wife X, but Y

did not say anything nor deny it. The Barangay Captain, noticing an
object bulging in Y's waistline underneath his T-shirt, and believing
that it was the gun he used to injure X and to threaten her with death,
frisked Y and grabbed the object which turned out to be a .38 caliber
paltik revolver. The Barangay Captain inquired whether accused had a
license to possess or permit to carry the gun, and when the latter
answered in the negative, the Barangay Captain arrested him and
confiscated the firearm. From the record of the local PNP, it was
ascertained that the subject revolver was not registered or licensed in
the name of accused Y.
Was the arrest of accused Y without warrant lawful pursuant to
Section 5(a) of Rule 113 of the Revised Rules on Criminal Procedure?
Were the search conducted and seizure of the gun likewise lawful without
a search warrant pursuant to Section 12 of Rule 126? Explain.
Answer;
1) The arrest of the accused Y without warrant was lawful
pursuant to Section 5(b), not (a) of Rule 113. because an offense had in
fact Just been committed and Barangay Captain Z has personal knowledge
of facts indicating that Y had committed it. When Z, accompanied by the
complainant X, met Y on the road and confronted him on the complaint of
X. Y did not say anything nor deny it. That was sufficient ground for Z
to arrest Y and search him. Hence the search and seizure of the gun was
lawful without a search warrant under Sec. 12 of Rule 126.
Alternative Answer;
The arrest of the accused Y without warrant was lawful under
Section 5 (a) of Rule 113, because the totality of the circumstances
would indicate to a veteran police officer that a crime was being
committed in his presence, and justify an arrest of Y without warrant.
Hence the search and seizure of the gun was lawful under Sec, 12 of Rule
126.
Criminal procedure; warrantless arrests and searches
1997 No. 8;
A was killed by B during a quarrel over a hostess in a nightclub.
Two days after the incident, and upon complaint of the widow of A, the
police arrested B without a warrant of arrest and searched his house
without a search warrant.
(a) Can the gun used by B in shooting A, which was seized during
the search of the house of B, be admitted in evidence?
(b)
(c)

Is the arrest of B legal?

Under the circumstances, can B be convicted of homicide?

Answer:
(a)
No. The gun seized during the search of the house of B
without a search warrant is not admissible in evidence. (Secs. 2 and
3[2], Art. III of Constitution).
Moreover, the search was not an
incident to a lawful arrest of a person under Sec. 12 of Rule 126.
(b) No. A warrantless arrest requires that the crime has in fact
just been committed and the police arresting has personal knowledge of
facts that the person to be arrested has committed it. (Sec. 5, Rule
113). Here, the crime has not just been committed since a period of two
days had already lapsed, and the police arresting has no such personal
knowledge because he was not present when the incident happened. (Go vs.
Court of Appeals. 206 SCRA 138).
(c)
Yes. The gun is not indispensable in the conviction of A
because the court may rely on testimonial or other evidence.
Criminal procedure; warrantless arrests and seizures
2003 No. X.

Page 132 of 172

In a buy-bust operation, the police operatives arrested the

accused and seized from him a sachet of shabu and an unlicensed firearm.
The accused was charged in two Informations, one for violation of the
Dangerous Drug Act, as amended, and another for illegal possession of
firearms.
The accused filed an action for recovery of the firearm in
another court against the police officers with an application for the
issuance of a writ of replevin. He alleged in his Complaint that he was
a military informer who had been issued a written authority to carry
said firearm. The police officers moved to dismiss the complaint on the
ground that the subject firearm was in custodia legis. The court denied
the motion and instead issued the writ of replevin.
(a)

Was the seizure of the firearm valid?

(b)

Was the denial of the motion to dismiss proper? 6%

SUGGESTED ANSWER:
(a) Yes, the seizure of the firearm was valid because it was
seized in the course of a valid arrest in a buy-bust operation. (Sec. 12
and 13 of Rule 126) A search warrant was not necessary. (People v.
Salazar, 266 SCRA 607 [1997]).
(b) The denial of the motion to dismiss was not proper. The
court had no authority to issue the writ of replevin whether the firearm
was in custodia legis or not. The motion to recover the firearm should
be filed in the court where the criminal action is pending.
Criminal procedure; warrantless arrests; objection
2000 No. VII.
FG was arrested without a warrant by policemen while he was
walking in a busy street. After preliminary investigation, he was
charged with rape and the corresponding information was filed in the
Regional Trial Court. On arraignment, he pleaded not guilty. Trial on
the merits ensued. The court rendered judgment convicting him. On
appeal, FG claims that the judgment is void because he was illegally
arrested. If you were the Solicitor General, counsel for the People of
the Philippines, how would you refute said claim? (5%)
SUGGESTED ANSWER:
Any objection to the illegality of the arrest of the accused
without a warrant is deemed waived when he pleaded not guilty at the
arraignment without raising the question. T is too late to complain
about a warrantless arrest after trial is commenced and completed and a
judgment of conviction rendered against the accused. (People v. Cabiles,
284 SCRA 199, [1999])
Criminal procedure; warrantless arrests; prel. inves.
2004 NO. VIII
B. AX swindled RY in the amount of P10,000 sometime in mid-2003.
On the strength of the sworn statement given by RY personally to SPO1
Juan Ramos sometime in mid-2004, and without securing a warrant, the
police officer arrested AX. Forthwith the police officer filed with the
City Prosecutor of Manila a complaint for estafa supported by RYs sworn
statement and other documentary evidence.
After due inquest, the
prosecutor filed the requisite information with the MM Regional Trial
Court.
No preliminary investigation was conducted either before or
after the filing of the information and the accused at no time asked for
such an investigation. However, before arraignment, the accused moved
to quash the information on the ground that the prosecutor suffered from
a want of authority to file the information because of his failure to
conduct a preliminary investigation before filing the information, as
required by the Rules of Court.

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Is the warrantless arrest of AX valid?

preliminary investigation before the filing
Explain.
(5%)

Is he entitled to a
of the information?

Criminal procedure; when an offense necessarily includes another

1993 No (5)
Fernando was charged with the crime of rape pursuant to the
information alleging that by means of force, violence and intimidation,
he had carnal knowledge of Elaine, a 13 year old girl.
After trial, the court found that the theory of force and
involuntariness in the sexual interlude between Fernando and Elaine was
disproved and that, in the contrary, it was a consensual affair. It,
therefore, concluded that Fernando cannot be held liable for rape.
Nevertheless, the court found that Fernando committed deceit,
through promise of marriage, in successfully persuading Elaine to give
up her virginity.
Supposing that the evidence overwhelmingly shows that the crime of
simple seduction had been committed by Fernando, can he convicted for
that crime? Explain.
Answer:
No, because Fernando was not charged with simple seduction. He was
charged with having carnal knowledge of Elaine by means of force,
violence and intimidation. There was no allegation of deceit in the
information. Rape does not necessarily include simple seduction. Hence,
he could not be convicted of simple seduction.
Criminal procedure; when an offense necessarily includes another;
remedies
2004 NO. V
B. AX was charged before the YY Regional Trial Court with theft
of jewelry valued at P20,000, punishable with imprisonment of up to 10
years of prision mayor under the Revised Penal Code. After trial, he
was convicted of the offense charged, notwithstanding that the material
facts duly established during the trial showed that the offense
committed was estafa, punishable by imprisonment of up to eight years of
prision mayor under the said Code.
No appeal having been taken
therefrom, said judgment of conviction became final.
Is the judgment of conviction valid?
Is the said judgment
reviewable thru a special civil action for certiorari? Reason. (5%)
Criminal procedure; who should file complaint for adultery
1991 No. XII:
B. Magdalena Campos, a married woman and Santiago Mendoza, a
married man, were indicted for adultery in an Information filed by the
Prosecutor of Bataan upon a sworn complaint filed by Mrs. Cynthia
Mendoza, wife of Santiago. Both accused filed a motion to quash alleging
that the trial court has not acquired jurisdiction over the case because
no complaint has been filed by the husband of Magdalena Campos. They
cite Section 5, Rule 110 of the Revised Rules of Court which provides,
among others, that the crime of adultery"... shall not be prosecuted
except upon a complaint filed by the offended spouse." How would you
resolve the motion to quash?
Answer:
B. Motion to quash granted. The offended spouse who should have
filed the sworn complaint for adultery was the husband of Magdalena
Santos, not the wife of Santiago Mendoza. Adultery is committed by any
married woman who shall have sexual intercourse with a man not her
husband and by the man who has carnal knowledge of her knowing her to be
married, [Art. 333, RPC)
Another Answer;

Page 134 of 172

Motion to quash denied. The sworn complaint of Mrs. Cynthia

Mendoza as the offended spouse is sufficient compliance with the rule
which requires both the guilty parties to be charged, if both are alive.
Criminal procedure; withdrawal of information
1990 (18)
After an information for homicide was filed by the city prosecutor
in the RTC of Quezon City, the accused asked the prosecutor for a
reinvestigation, which he granted. After the reinvestigation, the
prosecutor filed a motion in court to withdraw the information having
found no sufficient evidence to continue with the prosecution of the
case.
Considering that the prosecutor has the direct control and
supervision over the prosecution of the case, are the steps undertaken
by him proper under the circumstances? Decide with reasons.
Answer:
Yes, the prosecutor may file a motion to withdraw the information.
However, the motion may be denied by the court, in which case the
prosecutor will be required to present whatever evidence he has. (Crespo
vs Mogol, 151 SCRA 462) if the court gravely abuses its discretion,
certiorari lies. (Quizo vs. Sandiganbayan, 149 SCRA 110)

Special Proceedings
Special proceedings
1996 No. 11;
1) Distinguish special proceeding from an ordinary action.
Answer;
1)
A special proceeding is a remedy to establish the status or
right of a party or a particular fact, while an ordinary action is one
by which one party prosecutes another for the enforcement or protection
of a right or the prevention or redress of a wrong. (Secs. 1 and 2 of
Rule 2)
Special proceedings; change of name
1992 No. X:
Pernito, also known in the community as Peregrino, filed a
petition for change of name to Pedro. The name Peregrino appeared in the
body of the petition but not in the caption. When the petition was
published, the caption and the body of the petition were merely lifted
verbatim, so that as published, the petition's caption still did not
contain Peregrino as the petitioner's alias. The government lawyer filed
a motion to dismiss on the ground that, notwithstanding publication for
the requisite number of times, the court did not acquire Jurisdiction
over the petition because petitioner's alias (Peregrino) did not appear
in the published caption. The court denied the motion to dismiss with
the ruling that there was substantial compliance with the law and that
the omission of the alias in the caption may be deemed de minimis
because the alias was clearly set forth in the petition itself.
Was the court correct in denying the motion to dismiss? Explain.
Suggested Answer:
No, the failure of the petitioner to include his alias
(Peregrino) in the caption is a jurisdictional defect and the Inclusion
of the alias in the body of the petition does not cure said defect. The
reason for the rule is that the ordinary reader only glances fleetingly
at the caption in a special proceeding and only if the caption strikes
him does he proceed to read the body of the petition; hence, he will
probably not notice the other names or aliases of the petitioner. (Gil
Co vs. Republic. 77 SCRA 65)
Special proceedings; claims against the estate

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1987 No (15)
In a claim for money filed in a proceeding for the settlement of
the estate of a deceased, the claimant has promissory note purporting to
have been signed by the deceased as debtor and the claimant as creditor.
The claimant also has a check for the same amount as in the promissory
note and issued on the same date as in the promissory note. The check
drawn by the claimant and issued in the name of the deceased as payee,
bears on its back a signature purportedly belonging to the deceased and
other writings indicating that the check had been deposited in a bank
and credited to the account of the payee.
Can this money claim against the estate be proved? If so, how?
Explain.
Answer:
Yes. The claimant should attach a copy of the promissory note
executed by the deceased in his favor to his claim and serve a copy
thereof on the executor or administrator. If the executor or
administrator admits or does not deny the claim in his answer, the court
may approve the same.
If the executor or administrator or heir opposes the claim, the
same may be proved by the testimony of a witness who can authenticate
the promissory note. A witness other than the claimant from the bank may
also testify that the check of the claimant for the same amount as the
promissory note was endorsed by the deceased and deposited to his
account in the bank.
Another Alternative Answer:
The claimant himself may authenticate the promissory note since
this is not covered by the rule on surviving parties or the dead mans
statute. Authentication is not a matter of fact on which the claimants
lips are sealed.
Special proceedings; correction of entries
1993 No (16)
On May 12, 1990, Roman Agcaoili filed a petition in the Regional
Trial Court to correct his birth certificate by changing his citizenship
from Chinese to Filipino and his status from legitimate to
illegitimate. The Local Civil Registrar was named respondent in the
petition.
Copy of the notice hearing was served on the Solicitor General.
The notice was published in a newspaper of general circulation once a
week for three consecutive weeks.
Before the scheduled hearing, the Solicitor entered his appearance
as counsel for the Republic of the Philippines and authorized the
Provincial Prosecutor to appear in the case. However, the prosecutor did
not file an opposition to the petition. Instead, he appeared at, and
participated in, the trial and even cross-examined Agcaoili and his
witnesses.
There was a full-blown trial where Agcaoili presented testimonial
and documentary evidence proving that he is a Filipino citizen, being an
illegitimate child of Tan Keh (Chinese) and Cayetana Agcaoili (Filipino)
who were never married. However, the Republic presented no evidence.
After hearing, the trial court ordered the Local Civil Registrar
to make the corrections sought by Agcaoili.
The Solicitor General appealed. He argued that substantial changes
in the civil registry cannot be made under Rule 108 of the Rules of
Court. Is the contention correct? Why?
Answer:
No, because proceedings under Rule 108 of the Rules of Court may
be either summary or adversary in nature. If the correction sought to be

Page 136 of 172

made in the civil registry is clerical, then the procedure is summary.

If the rectification affects the civil status, citizenship or
nationality of a party, it is deemed substantial and the procedure
adopted is adversary. In this case, the procedure was adversary. The
proper notice was published and served on the Solicitor General. There
was a full-blown trial where Agcaoili presented testimonial and
documentary evidence proving that he is a Filipino Citizen. The
prosecutor authorized by the Solicitor General to appear in the case
participated in the trial and even cross-examined Agcaoili and his
witnesses. Consequently, the court correctly ordered the Local Civil
Registrar to make the corrections sought.
Special proceedings; habeas corpus
1988 (15)
In 1978, Pete was convicted by the CFI of Cavite on the sole basis
of his extrajudcial confession. The decision soon became final and Pete
has since been serving sentence until now, although to this day, he
insists that he is innocent and that his confession had been coerced. He
later learned of the Supreme Courts decision in People vs. Galit in
which the Court reversed a conviction that had been based solely on
uncounselled confession. He forthwith caused a petition for habeas
corpus to be filed, alleging that his confinement has all along been
illegal. The Government opposed the petition on the ground that the
decision of conviction had long become final and may no longer be
reopened and that he is in fact serving sentence.
Will habeas corpus lie? Reasons.
Answer:
Yes, because once a deprivation of a constitutional right is shown
to exist, the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail the
legality of the detention. (Gumabon vs. Director of Prisons, 37 SCRA
420)
Another Answer:
Yes, habeas corpus will lie. Firstly, the judgment has no
sufficient basis inasmuch a judgment of conviction cannot be based
solely on an extrajudicial confession without evidence of corpus
delicti.
Secondly, Supreme Court has applied retroactively the Galit ruling
even to cases decided prior to said ruling.
There being no valid judgment, the detention becomes unlawful.
Special proceedings; habeas corpus
2003 No. VIII.
Widow A and her two children, both girls, aged 8 and 12 years
old, reside in Angeles City, Pampanga. A leaves her two daughters in
their house at night because she works in a brothel as a prostitute.
Realizing the danger to the morals of these two girls, B, the father of
the deceased husband of A, files a petition for habeas corpus against A
for the custody of the girls in the Family Court in Angeles City. In
said petition, B alleges that he is entitled to the custody of the two
girls because their mother is living a disgraceful life. The court
issues the writ of habeas corpus. When A learns of the petition and the
writ, she brings her two children to Cebu City. At the expense of B the
sheriff of the said Family Court goes to Cebu City and serves the writ
on A. A files her comment on the petition raising the following
defenses:
(a) The enforcement of the writ of habeas corpus in Cebu City is
illegal; and
(b)

B has no personality to institute the petition. 6%

Page 137 of 172

Resolve the petition in the light of the above defenses of A.

(6%)
SUGGESTED ANSWER:
(a) The writ of habeas corpus issued by the Family Court in
Angeles City may not be legally enforced in Cebu City, because the writ
is enforceable only within the judicial region to which the Family Court
belongs, unlike the writ granted by the Supreme Court or Court of
Appeals which is enforceable anywhere in the Philippines. (Sec. 20 of
Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule 102,
Rules of Court.)
(b) B, the father of the deceased husband of A, has the
personality to institute the petition for habeas corpus of the two minor
girls, because the grandparent has the right of custody as against the
mother A who is a prostitute. (Sectioins 2 and 13, Id.)
Special proceedings; habeas corpus; jurisdiction
1993 No (19)
Roxanne, a widow, filed a petition for habeas corpus with the
Court of Appeals against Major Amor who is allegedly detaining her 18year old son Bong without authority of the law.
After Mayor Amor had a filed a return alleging the cause of
detention of Bong, the Court of Appeals promulgated a resolution
remanding the case to the RTC for a full-blown trial due to the
conflicting facts presented by the parties in their pleadings. In
directing the remand, The court of Appeals relied on Sec.9(1), in
relation to Sec. 21 of BP 129 conferring upon said Court the authority
to try and decide habeas corpus cases concurrently with the Regional
Trial Courts.
Did the Court of Appeals act correctly in remanding the petition
to the RTC? Why?
Answer:
No, because while the CA has original jurisdiction over habeas
corpus concurrent with the Regional Trial Courts, it has no authority
for remanding to the latter original actions filed with the former. On
the contrary, the CA 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 jurisdiction.
Alternative Answer:
Yes, because there is no prohibition in the law against a superior
court referring a case to a lower court having concurrent jurisdiction.
The Supreme Court has referred to the CA or the RTC cases falling within
their concurrent jurisdiction.
Special proceedings; habeas corpus; preliminary citation
1995 No. 7;
Douglas, married to but separated from Ellen, one day fetched
from school his daughter, 5-year old Susan, and never returned her to
Ellen under whose custody the child was placed by the Regional Trial
Court of Manila in a suit for custody of the child. After searching for
her daughter for days Ellen learned that Douglas had been moving the
girl from one place to another within Metro Manila the last being the
residence of his sister Mary in Paranaque. Ellen's current residence is
Pasig.
1.
As Ellen's lawyer, what course or courses of action will you
take to effect the return of Susan to the custody of Ellen? Discuss
fully.
2.
(a) What is meant by a preliminary
involving deprivation of personal liberty? Explain.

citation

in

cases

Page 138 of 172

(b) How is a preliminary citation distinguished from a peremptory

writ of habeas corpus? Explain.
Answer:
1.
As Ellen's lawyer, I will file a motion with the Regional
Trial Court of Manila to order Douglas to return Susan to Ellen and to
cite Douglas for contempt of court.
Alternative Answer:
I will file a petition for habeas corpus. Answer:
2.
A preliminary citation merely requires the respondent to
appear and show cause why the peremptory writ of habeas corpus should
not be granted.
(Lee Yick Hon. vs. Collector of Customs, 41 Phil. 548)
3.
On the other hand, the peremptory writ of habeas corpus
directs the officer to have the body of the person restrained of his
liberty before the court or judge designated in the writ at the time and
place therein specified. (Sec. 6, Rule 102)
Special proceedings; habeas corpus; proper party
1998 No XI.
A was arrested on the strength of a warrant of arrest issued by
the RTC in connection with an Information for Homicide. W, the live-in
partner of A filed a petition for habeas corpus against A's jailer and
police investigators with the Court of Appeals.
1.
Does W have the personality to file the petition for
habeas corpus? [2%]
2.

Is the petition tenable? [3%] SUGGESTED ANSWER:

1.
Yes. W, the live-in partner of A, has the personality to
file the petition for habeas corpus because it may be filed by "some
person in his behalf." (Sec. 3. Rule 102. Rules of Court.)
2.
No. The petition is not tenable because the warrant of
arrest was issued by a court which had Jurisdiction to issue it (Sec. 4,
Rule 102 Rules of Court)
Special proceedings; partition
2000 No. XII.
Linda and spouses Arnulfo and Regina Ceres were co-owners of a
parcel of land. Linda died intestate and without any issue. Ten (10)
persons headed by Jocelyn, claiming to be the collateral relatives of
the deceased Linda, filed an action for partition with the Regional
Trial Court praying for the segregation of Lindas 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
Jocelyn, and a certification of the local civil registrar that its
office had been completely razed by fire. The spouses Ceres refused to
partition on the following grounds: 1) 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 deceased; 2) entry in the family bible is hearsay; 3)
the certification of the registrar on non-availability of the records of
birth does not prove filiation: 4) in partition cases where filiation to
the deceased is in dispute, prior and separate judicial declaration of
heirship in a settlement of estate proceedings is necessary; and 5)
there is need for publication as real property is involved. As counsel
for Jocelyn and her co-petitioners, argue against the objections of the
spouses Ceres so as to convince the court to allow the partition.
Discuss each of the five (5) arguments briefly but completely. (10%)
SUGGESTED ANSWER:
(1) The baptismal certificate can show filiation or prove
pedigree. It is one of the other means allowed under the Rules of Court

Page 139 of 172

and special laws to show pedigree. (Trinidad v. Court of Appeals, 289

SCRA 188 [1998]; Heirs of ILgnacio Conti v. Court of Appeals, 300 SCRA
345 [1998]).
(2) Entries in the family bible may be received as evidence of
pedigree. (Sec. 40, Rule 130, Rules of Court).
(3) The certification by the civil registrar of the nonavailability of records is needed to justify the presentation of
secondary evidence, which is the photocopy of the birth certificate of
Jocelyn. (Heirs of Ignacio Conti v. Court of Appeals, supra.)
(4) Declaration of heirship in a settlement proceeding is not
necessary. It can be made in the ordinary action for partition wherein
the heirs are exercising the right pertaining to the decedent, their
predecessor-in-interest, to ask for partition as co-owners (Id.)
(5) Even if real property is involved, no publication is
necessary, because what is sought is the mere segregation of Lindas
share in the property. (Sec. 1 of Rule 69; Id.)
Special proceedings; probate of wills
1996 No. 11;
3)
A will containing three pages was written in two leaves of
paper. The will was written on the first page of the first leaf, the
second page on the reverse side of said first leaf, and the third page
on the second leaf. The signature of the testatrix as well as of the
instrumental witnesses were written on the left margin of the first page
or first folio and on the third page or second folio but not on the
second page or reverse side of the first leaf.
May the will be admitted to probate? Explain.
Answer;
3)
No, because the law requires that each and every page of the
will should be signed by the testator and his instrumental witnesses.
(Art. 808 Civil Code; Caneda vs. Court of Appeals, 222 SCRA 781)
Special proceedings; probate; jurisdiction
2003 No. IX.
A, a resident of Malolos, Bulacan, died leaving an estate located
in Manila, worth P200,000.00. In what court, taking into consideration
the nature of jurisdiction and of venue, should the probate proceeding
on the estate of A be instituted? (4%)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in
the Municipal Trial Court of Malolos, Bulacan which has jurisdiction,
because the estate is valued at P200,000.00, and is the court of proper
venue because A was a resident of Malolos at the time of his death.
(Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of Rule 73).
Special proceedings; probate; lost wills
1999 No. XI
a.
What are the requisites in order that a lost or destroyed
Will may be allowed? (2%)
b.
A's Will was allowed by the Court. No appeal was taken
from its allowance. Thereafter, Y, who was interested in the estate of
A, discovered that the Will was not genuine because A's signature was
forged by X. A criminal action for forgery was instituted against X.
May the due execution of the Will be validly questioned in such criminal
action? (2%)
SUGGESTED ANSWER:
a.
In order that a lost or destroyed will may be allowed,
the following must be complied with:

Page 140 of 172

(1)
established;

the

execution

and

validity

of

the

same

should

be

(2)
the will must have been in existence 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
knowledge; and
(3)
its provisions are clearly and distinctly proved by at
least two credible
witnesses.
(Sec. 6, Rule 76 of the Rules of
Court)
b.
No.
The allowance of the will from which no appeal was
taken is conclusive as to its due execution. (Sec. 1 of Rule 75.)
Due
execution includes a finding that the will is genuine and not a forgery.
Accordingly, the due execution of the will cannot again be questioned in
a subsequent proceeding, not even in a criminal action for forgery of
the will.
Special proceedings; probate; mandatory character
1992 No. IX:
The last will and testament of the deceased was presented in the
proceeding to settle his estate, and in due course, hearing was set for
the probate of the will. Before evidence, thereon could be presented,
the legal heirs of the deceased, his widow and two surviving daughters,
filed a manifestation that the probate of the will would no longer be
necessary since they had already agreed to divide the net estate
differently in accordance with a project of partition attached to their
manifestation. Consequently, they moved that the project of partition be
approved and forthwith implemented without probate of the decedent's
will.
Should the court grant the heirs motion and accordingly approve
their project of partition without probate of the will? Explain.
Suggested Answer:
No, the court may not approve the project of partition without
probate of the will, because no will shall pass either real or personal
estate unless It Is proved and allowed In the proper court. (Sec. 1 of
Rule 75) The law and public policy require the probate of the will
because otherwise, the right of a person to dispose of his property by
will may be rendered nugatory. (Ralla vs. Untalan, 172 SCRA 858)
Special proceedings; probate; mandatory nature
2002 No. VII.
B.
What should the court do if, in the course of intestate
proceedings, a will is found and it is submitted for probate? Explain.
(2%)
SUGGESTED ANSWER:
B.
If a will is found in the course of intestate proceedings
and it is submitted for probate, the intestate proceedings will be
suspended until the will is probated. Upon the probate of the will, the
intestate proceedings will be terminated. (Rule 82, sec. 1).
Special proceedings; settlement of estate
1988 (11)
In the special proceeding for the settlement of the intestate
estate of the deceased Johnny, his widow by his second marriage,
Carmelita, moved for her appointment as Administratrix of the estate.
This was opposed by Manda, the son of Johnny by his first wife, who
moved for his appointment instead. The court appointed Carmelita, the
widow, as Administratrix.
11.a) How may Manda contest that appointment of Carmelita?
Instead

of

administratrix,

Carmelita

was

appointed

Special

Page 141 of 172

Administratrix.
11.b) Is the same remedy available to the oppositor, Manda? Why or
why not?
11.c) If Johnny Left a holographic will, how may it be probated?
Explain.
Answer:
11.a) By appeal, because the appointment of an administrator is a
final order under Rule 109.
11.b) No, because no appeal is allowed from the appointment of a
special administrator. Sec. 1(e) of Rule 109.
11.c) A holographic will may be probated by filing a petition for
the allowance of said will. If it is not contested, at least one
competent witness who knows the hand writing and signature of the
testator should explicitly declare that the will and the signature are
in the handwriting of the testator. In the absence of any such competent
witness, and if the court deems it necessary, expert testimony may be
resorted to. If it is contested, at least 3 witnesses who know the
handwriting of the testator should explicitly declare that the will and
the signature are in the handwriting of the testator. In the absence of
any competent witness, and if the court deems it necessary, expert
testimony may be resorted to. (Sec. 1, 5 and 11 of Rule 76)
Special proceedings; settlement of estate
2001 No. XV
The rules on special proceedings ordinarily require that the
estate of the deceased should be judicially administered thru an
administrator or executor.
What are the two exceptions to said requirements? (5%)
SUGGESTED ANSWER:
The two exceptions to the requirement are:
(a) Where the decedent left no will and no debts and the heirs
are all of age, or the minors are represented by their judicial or legal
representatives duly authorized 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. If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the
register of deeds. The parties or the sole heir shall file
simultaneously abound with the register of deeds, in an amount
equivalent to the value of the personal property as certified to under
oath by the parties and conditioned upon the payment of any just claim
that may be filed later. The fact of the extrajudicial settlement or
administration shall be published in a newspaper of general circulation
in the province once a week for three consecutive weeks. (Sec. 1 of Rule
74, Rules of Court)
(b) Whenever the gross value of the estate of a deceased person,
whether he died testate or intestate, does not exceed ten thousand
pesos, and that fact is made to appear to the Regional Trial Court
having jurisdiction or the estate by the petition of an interested
person and upon hearing, which shall be held not less than one (1) month
nor more than three (3) months from the date of the last publication of
a notice which shall be published once a week for three consecutive
weeks 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 executor or
administrator, to settle the estate. (Sec. 2 of Rule 74, Rules of Court)
Special proceedings; settlement of estate
2002 No. VIII.

Page 142 of 172

A.
X filed a claim in the intestate proceedings of D. Ds
administrator denied liability and filed a counterclaim against X. Xs
claim was disallowed.
(1) Does the probate court still have jurisdiction to allow the
claim of Ds administrator by way of offset? Why? (2%)
(2) Suppose Ds administrator did not allege any claim against X
by way of offset, can Ds administrator prosecute the claim in an
independent proceeding/ why/ (3%)
B.
A, B and C, the only heirs in Ds intestate proceedings,
submitted a project of partition to the partition, two lots were
assigned to C, who immediately entered into the possession of the lots.
Thereafter, C died and proceedings for the settlement of his estate were
filed in the RTC-Quezon City. Ds administrator then filed a motion in
the probate court (RTC-Manila), praying that one of the lots assigned to
C in the project of partition be turned over to him to satisfy debts
corresponding to Cs portion. The motion was opposed by the
administrator of Cs estate. How should the RTC-Manila resolve the
motion of Ds administrator? Explain. (3%)
C.
Suppose the property of D was declared escheated on July 1,
1990 in escheat proceedings brought by the Solicitor General. Now, X,
who claims to be an heir of D, filed an action to recover the escheated
property. Is the action viable? Why? (2%)
SUGGESTED ANSWER:
A.
(1) No, because since the claim of X was disallowed, there
is no amount against which to offset the claim of Ds administrator.
(2) Yes, Ds administrator can prosecute the claim in an
independent proceeding since the claim of X was disallowed. If X had a
valid claim and Ds administrator did not allege any claim against X by
way of offset, his failure to do so would bar his claim forever. (Rule
86, sec. 10).
B.
assignment
estate had
19 SCRA 85

The motion of Ds administrator should be granted. The

of the two lots to C was premature because the debts of the
not been fully paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu,
(1967)].

C.
No, the action is not viable. The action to recover
escheated property must be filed within five years from July 1, 1990 or
be forever barred. (Rule 91, sec. 4).
Special proceedings; settlement of estate; administrator
1998 No XII
A, claiming to be an illegitimate child of the deceased D,
instituted an Intestate proceeding to settle the estate of the latter.
He also prayed that he be appointed administrator of said estate. S, the
surviving spouse, opposed the petition and A's application to be
appointed the administrator on the ground that he was not the child of
her deceased husband D. The court, however, appointed A as the
administrator of said estate. Subsequently, S, claiming to be the sole
heir of D. executed an Affidavit of Adjudication, adjudicating unto
herself the entire estate of her deceased husband D. S then sold the
entire estate to X.
1.

Was the appointment of A as administrator proper? [2%]

2.
Was the action of S in adjudicating the entire estate of
her late husband to herself legal? [3%]
SUGGESTED ANSWER:
1.
Yes, unless it is shown that the court gravely-abused its
discretion in appointing the illegitimate child as administrator,
instead of the spouse. While the spouse enjoys preference, it appears
that the spouse has neglected to apply for letters of administration

Page 143 of 172

within thirty (30) days from the death of the decendent. (Sec. 6, Rule
78, Rules of Court; Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163.)
ALTERNATIVE ANSWER:
S.
the
surviving
spouse,
should
have
been
appointed
administratrix of the estate, in as much as she enjoys first preference
in such appointment under the rules. (Sec. 6(a) of Rule 78, Rules of
Court.)
SUGGESTED ANSWER:
2.
No. An affidavit of self-adjudication is allowed only if
the affiant is the sole heir of the. deceased. (Sec. 1, Rule 74, Rules
of Court). In this case, A also claims to be an heir.
Moreover, it is
not legal because there is already a pending juridical proceeding for
the settlement of the estate.
Special proceedings; settlement of estate; issues on ownership
1990 (12)
Sammy Magdalo, executor of the estate of the deceased Rolando
Aceron, submitted an inventory which includes a ten-hectare lot occupied
by Carlos Domingo. Domingo opposed inclusion in the inventory of the
property claiming ownership thereof. The probate court directed the
executor and Domingo to present evidence of ownership. Domingo refused
to participate in the proceedings, asserting lack of jurisdiction on the
part of the probate court. The probate court nonetheless proceeded with
the hearing, and rendered judgment declaring the deceased to be the
owner of the question property. The probate court directed Domingo to
vacate the premises.
Is the judgment correct? Explain your answer.
Answer:
No, because the probate court has no jurisdiction to adjudicate
title to properties claimed to be part of the estate of the deceased and
also claimed by third parties. (Cuison vs. Ramolete, 129 SCRA 495). It
may only make a provisional determination for the purpose of inclusion
in the inventory of the estate. (Bolisay vs. Alcid, 85 SCRA 213)
Special proceedings; settlement of estate; issues on ownership
1996 No. 11;
2)
A and B are brothers
Their late father, during his
lifetime, donated his only real estate property to B. Thereafter, B sold
the property to C who had it titled. C died intestate and was survived
by his son, D. A, claiming that his legitime had been impaired, filed a
case for annulment of donation and sale, cancellation of title and
recovery of possession of the property before Branch 85 of the Regional
Trial Court. D filed a motion to dismiss the complaint on the ground
that there is a pending intestate estate proceeding before Branch 87
involving the estate of C, his father, which included the subject real
property. A opposed the motion arguing that Branch 85 has jurisdiction
since ownership of the land is involved and the said branch has
jurisdiction to resolve the question of ownership,
As judge of Branch 85, resolve the motion to dismiss.
Answer;
2)
I would deny the motion because it is Branch 85 of the
Regional Trial Court that has Jurisdiction to decide the question of
ownership of said property.
Special proceedings; settlement of estate; modes
1994 No (6)
Rene died intestate, leaving
property here in the Philippines.

several

heirs

and

substantial

Page 144 of 172

6.a) Assuming Rene left no debts, as counsel for Renes heirs,

what steps would you suggest to settle Renes estate in the least
expensive manner?
6.b) Assuming Rene left only one heir and no debts, as counsel for
Renes lone heir, what steps would you suggest?
6.c) Assuming that the value of Renes estate does not exceed
P10,000.00, what remedy is available to obtain a speedy settlement of
his estate?
Answer:
6.a) To settle Renes estate in the least expensive manner, an
extrajudicial settlement of the estate by agreement of the parties
should be made through a public instrument to be filed with the Register
of Deeds, together with a bond in an amount equivalent to the value of
the personal property involved as certified to under oath by the parties
concerned and conditioned upon payment of any just claim that may be
filed within two years by an heir or other person unduly deprived of
participation in the estate. The fact of extrajudicial settlement or
administration shall be published in a newspaper of general circulation
once a week for three consecutive weeks. (Sec. 1, Rule 74).
6.b) If Rene left only one heir, then the heir may adjudicate to
himself the entire estate by means of affidavit of self-adjudication to
be filed also with the Register of Deeds together with the other
requirements abovementioned.
6.c) Since the value of Renes estate does not exceed P10,000.00,
the remedy available is to proceed to undertake a summary settlement of
estates of small value by filing a petition in court and upon hearing,
which shall be held not less that one month nor more than three months
from the date of the last publication of a notice which shall be
published once a week for three consecutive weeks 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 executor or administrator, and
without delay, grant if proper, allowance of the will, if any, to
determine the persons legally entitled to participate in the estate, and
to apportion and divide it among them after payment of such debts of the
estate as the court shall then find to be due. The order of partition if
it involves real estate shall be recorded by the proper registers
office. (Sec. 2, Rule74).
Special proceedings; venue
1997 No. 6:
Give the proper venue for the following special proceedings:
(a) A petition to declare as escheated a parcel of land owned by
a resident ofthe Philippines who died intestate and without heirs or
persons entitled to the property,
(b) A petition for the appointment of an administrator over the
land and building left by an American citizen residing in California,
who had been declared an incompetent by an American court.
(c)

A petition for the adoption of a minor residing in Pampanga.

Answer:
(a) The venue of the escheat proceedings of a parcel of land in
this case is the place where the deceased last resided. (Sec. 1. Rule
91, Rules of Court).
(b) The venue for the appointment of an administrator over land
and building of an American citizen residing in California, declared
Incompetent by an American Court, is the Regional Trial Court of the
place where his property or part thereof is situated. (Sec. 1. Rule 92).

Page 145 of 172

(c)
The venue of a petition for the adoption of a minor
residing in Pampanga is the Regional Trial Court of the place in which
the petitioner resides. (Sec. 1. Rule 99),

Evidence
Evidence
2004 NO. VI
A.

Distinguish clearly but briefly between:

1.

Burden of proof and burden of evidence.

2.

Competency of the witness and credibility of the witness.

3.

Legislative facts and adjudicative facts.

4.

Hearsay evidence and opinion evidence.

5.

Questions of law and questions of fact.

(5%)

Evidence; admissibility
1998 No XVII.
The barangay captain reported to the police that X was illegally
keeping in his house in the barangay an Armalite M16 rifle. On the
strength of that information, the police conducted a search of the house
of X and indeed found said rifle. The police raiders seized the rifle
and brought X 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 Waiver of Right to
Counsel. During the trial of X for illegal possession of firearm, the
prosecution submitted in evidence the rifle. Sworn Statement and Waiver
of Right to Counsel, individually rule on the admissibility in evidence
of the:
a)

Rifle; [2%]

b)

Sworn Statement; and [2%1

c)

Waiver of Right to Counsel of X. [1%] SUGGESTED ANSWER:

1.
The rifle is not admissible in evidence because it was
seized without a proper search warrant.
A warrantless search is not
justified. There was time to secure a search warrant. (People us.
Encinada G.R. No. 116720, October 2. 1997 and other cases)
2.
The sworn statement is not admissible in evidence because
it was taken 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. (People us. Januario, 267 SCRA
608.)
3.
The waiver of his right to counsel is not admissible
because it was made without the assistance of counsel of his choice.
(People us. Gomez, 270 SCRA 433.)
Evidence; admissibility
2002 No. XI.
Acting on a tip by an informant, police officers stopped a car
being driven by D and ordered him to open the trunk. The officers found
a bag containing several kilos of cocaine. They seized the car and the
cocaine as evidence and placed D under arrest. Without advising him of
his right to remain silent and to have the assistance of an attorney,
they questioned him regarding the cocaine. In reply, D said, I dont
know anything about it. It isnt even my car. D was charged with
illegal possession of cocaine, a prohibited drug. Upon motion of D, the
court suppressed the use of cocaine as evidence and dismissed the
charges against him. D commenced proceedings against the police for the
recovery of his car. In his direct examination, D testified that he
owned the car but had registered it in the name of a friend for

Page 146 of 172

convenience. On cross-examination, the attorney representing the police

asked, After your arrest, did you not tell the arresting officers that
it wasnt your car? If you were Ds attorney, would you object to the
question? Why? (5%)
SUGGESTED ANSWER:
Yes, because his admission made when he was questioned after he
was placed under arrest was in violation of his constitutional right to
be informed of his right to remain silent and to have competent and
independent counsel of his own choice. Hence, it is inadmissible in
evidence. [Constitution, Art. III, sec. 12; R.A. 7438 (1992), sec, 2;
People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to justify
the cross-examination question.
Evidence; admissibility of DNA
2004 NO. X
A. At the scene of a heinous crime, police recovered a mans
shorts with blood stains and strands of hair.
Shortly afterwards, a
warrant was issued and police arrested the suspect, AA.
During his
detention, a medical technician extracted blood sample from his finger
and cut a strand from his hair, despite AAs objections.
During AAs trial for rape with murder, the prosecution sought to
introduce DNA (deoxyribonucleic acid) evidence against AA, based on
forensic laboratory matching of the materials found at the crime scene
and AAs hair and blood samples. AAs counsel objected, claiming that
DNA evidence is inadmissible because the materials taken from AA were in
violation of his constitutional right against self-incrimination as well
as his right of privacy and personal integrity.
Should the DNA evidence be admitted or not?

Reason. (5%)

Evidence; admissibility of evidence

1992 No. II:
Alejo was stabbed in the abdomen. He immediately called for help
and a policeman promptly approached him. He told the policeman that he
felt he would die from the serious wound inflicted on him by Danilo who
has a grudge against him. He was brought to a hospital for treatment
where, on the same day, he was shot and killed by someone whose identity
could not be established by an eye-witness. Eventually, Danilo was
charged in court for the death of Alejo. The prosecution had to build
its case on circumstantial evidence. At the ensuing trial, the policeman
was presented to testily on the declaration made to him by Alejo. The
defense objected. Meeting the objection, the prosecution argued for the
admissiblity of the evidence as a dying declaration (ante mortem
statement) or as part of the res gestae, either of which, when deemed
competent evidence as an exception to the hearsay rule, would
demonstrably be relevant to the ultimate fact in issue, the guilt of
Danilo for the death of Alejo. The defense countered by arguing that no
facts relating to the stabbing can be relevant to the shooting.
Is the contention of the prosecution with respect to relevancy
and competency of evidence correct? Discuss fully.
Suggested Answer:
No, the contention of the prosecution is not correct.
The statement of Alejo that it was Danilo who stabbed him is not
admissible as a dying declaration, because it did not concern the cause
and surrounding circumstances of his death. Alejo did not die from the
serious wound inflicted on him. The cause of his death was the shot
fired by an unknown person. Neither is the statement admissible as part
of the res gestae, because Danilo was charged with the death of Alejo

Page 147 of 172

and the cause of the death was not the stabbing by Danilo. [Secs. 37 and
42 of Rule 130)
Evidence; admissibility of evidence
1994 No (8)
At the homicide trial, the prosecution proposed that accused Joey
undergo a series of paraffin tests to determine whether he fired his
service pistol at the time the victim, Lyn, was shot to death. The
defense objected on the ground that Joeys submission of his hands for
paraffin test, or the inspection of any part of his body for that
matter, would violate his right against self-incrimination.
1. How would you rule on the objection?
2. Is the result of the paraffin test admissible in evidence?
Answer:
1. The objection should be overruled. Submission to the paraffin
test is not a violation of the right against self-incrimination because
it involves only an examination of a part of the body. What violates the
right against self-incrimination is testimonial compulsion.
2. The result of the paraffin test is admissible in evidence that
should be considered.
Evidence; admissibility of evidence; objections
1994 No (3)
3.c) What is the difference between a broadside objection and a
specific objection to the admission of documentary evidence?
Answer:
3.c) A broadside objection to the admission of documentary
evidence is to be distinguished from a specific objection in that a
broadside objection is a general objection such as incompetent,
irrelevant and immaterial, while a specific objection is limited to a
particular ground.
Alternative Answer:
A broadside objection is one, which does not specify any ground.
Evidence; admissibility; anti-wire tapping act
1996 No. 15:
5)
A sued for annulment of his marriage with B. During trial, A
offered in evidence cassette tapes of alleged telephone conversations of
B with her lover. The tapes were recordings made by tapping A's
telephone line, with A's consent and obviously without B's or her
lover's. B vehemently objected to their admission, on the ground
that
neither B nor her lover consented to the wire tap. The court admitted
the tapes, ruling that the recorded conversations are nonetheless
relevant to the issues involved.
Was the court
evidence? Explain,

correct

in

admitting

the

cassette

tapes

in

Answer:
5)
No, because the tape recordings made by tapping A's
telephone line without the consent of B or that of her lover was a
violation of the Anti-Wire Tapping Law. (RA No. 4200; Salcedo-Ortanez
vs. Court of Appeals, 235 SCRA 111)
Evidence; admissibility; objections
1997 No. 11:
What are the two kinds of objections? Explain each briefly. Given
an example of each.
Answer:

Page 148 of 172

Two kinds of objections are: (1) the evidence being presented is

not relevant to the issue; and (2) the evidence is incompetent or
excluded by the law or the rules, (Sec. 3, Rule 138). An example of the
first is when the prosecution offers as evidence the alleged offer of an
Insurance company to pay for the damages suffered by the victim in a
homicide case. (See 1997 No. 14).
Examples of the second are evidence obtained in violation of the
Constitutional prohibition against unreasonable searches and seizures
and confessions and admissions in violation of the rights of a person
under custodial Investigation.
Alternative Answers:
1)
Specific
evidence rule

objections:

Example:

parol

evidence

and

best

General Objections: Example: continuing objections (Sec. 37 of

Rule 132).
2)
The two kinds of objections are:
(1) objection to a
question propounded in the course of the oral examination of the witness
and (2) objection to an offer of evidence in writing. Objection to a
question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably
apparent otherwise, it is waived. An offer of objection in writing shall
be made within three (3) days after notice of the offer, unless a
different period is allowed by the court. In both instances the grounds
for objection must be specified. An example of the first is when the
witness is being cross-examined and the cross examination is on a matter
not relevant. An example of the second is that the evidence offered is
not the best evidence.
Evidence; admission of evidence not alleged in the complaint
2004 NO. I
A. In a complaint for a sum of money filed before the MM Regional
Trial Court, plaintiff did not mention or even just hint at any demand
for payment made on defendant before commencing suit. During the trial,
plaintiff duly offered Exh. A in evidence for the stated purpose of
proving the making of extrajudicial demand on defendant to pay P500,000,
the subject of the suit. Exh. A was a letter of demand for defendant
to pay said sum of money within 10 days from receipt, addressed to and
served on defendant some two months before suit was begun.
Without
objection from defendant, the court admitted Exh. A in evidence.
not?

Was the courts admission of Exh. A in evidence erroneous or

Reason. (5%)

Evidence; admissions/confessions
1996 No. 14:
1)
Distinguish
extrajudicial admission from extra-judicial
confession in criminal cases.
Answer;
1)
An extrajudicial admission is a statement of fact which does
not directly involve an acknowledgment of guilt or criminal intent,
while an extrajudicial confession is a declaration of an accused that he
has committed or participated In the commission of a crime.
Evidence; authentic documents
1990 (16)
In the trial court of a case on July 5, 1990, plaintiff offered an
evidence a receipt dated July 7, 1959 issued by defendant company which
was found in a cabinet for receipts of payment. It is without any
blemish or alteration. As no witness testified in the execution and
authenticity of the document, defendant moved for the exclusion of this
receipt notwithstanding that it is a private writing.

Page 149 of 172

Should the said motion be granted? Explain your answers.

Answer:
No, because when a private document is more than thirty (30) years
old and is produced from custody in which it would naturally be found if
genuine and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be given. (Sec.21
of Rule 132)
Evidence; best evidence rule
1994 No (4)
4.a) Why is the Best Evidence Rule often described a misnomer?
Answer:
4.a) The best evidence rule is a misnomer because it merely
requires the best evidence available and, in the absence thereof, allows
the introduction of secondary evidence.
Alternative Answer:
4.a) The best evidence rule is a misnomer because it is applicable
only to documentary evidence and not to testimonial and object evidence.
Evidence; Best evidence rule
1997 No. 20:
When A loaned a sum of money to B. A typed a single copy of the
promissory note, which they both signed A made two photo (xeroxed)
copies of the promissory note, giving one copy to B and retaining the
other copy. A entrusted the typewritten copy to his counsel for
safekeeping. The copy with A's counsel was destroyed when the law office
was burned.
(a)
In an action to collect on the promissory note, which is
deemed to be the "original" copy for the purpose of the "Best Evidence
Rule"?
(b)
Can the photocopies in the
considered "duplicate original copies"?
(c)

hands

of

the

parties

be

As counsel for A, how will you prove the loan given to A and

B?
Answer:
(a)
The copy that was signed and lost is the only "original"
copy for purposes of the Best Evidence Rule. (Sec.
4 [b] of Rule 130).
(b) No, They are not duplicate original copies because there are
photocopies which were not signed (Mahilum v. Court of Appeals, 17 SCRA
482), They constitute secondary evidence. (Sec. 5 of Rule 130).
(c) The loan given by A to B may be proved by secondary evidence
through the xeroxed copies of the promissory note. The rules provide
that when the original document is lost or destroyed, or cannot be
produced in court, the offerer, upon proof of its execution or existence
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 testimony of witnesses in the order
stated. (Sec. 5 of Rule 130).
Evidence; best evidence rule; parol evidence rule
1988 (13)
(a) State or explain briefly the Best Evidence Rule.
(b) State or explain briefly the Parol Evidence Rule.
Answer:
(a) The Best Evidence Rule provides that there can be no evidence

Page 150 of 172

of a writing the contents of which is the subject of inquiry, other than

the original writing itself, except in the following cases:
1) When the original has been lost, destroyed, cannot be produced
in court;
2) When the original is in the possession of a party against whom
the evidence is offered,
and the latter fails to produce it after
reasonable notice;
3) When the original is a record or other document in the custody
of a public officer;
4) When the original has been recorded in an existing record a
certified copy of which is
made evidence by law;
5) When the original consists of numerous accounts or other
documents which cannot be
examined in court without great loss of
time and the fact sought to be established from
them is only the
general result of the whole. (Sec. 2 of Rule 130)
(b) The Parol Evidence Rule provides when the terms of an
agreement have been reduced to writing, it is to be considered as
containing all such terms, and, therefore, there can be, between the
parties and their successors in interest, no evidence of the terms of
the agreement other that the contents of the writing, except in the
following cases:
1) Where a mistake or imperfection of the writing, or its failure
to express the true intent and agreement of parties, or the validity of
the agreement is put in issue in the pleadings;
2) When there is an intrinsic ambiguity in the writing.
The term agreement includes wills. (Sec. 7 of Rule 130)
Evidence; character evidence
2002 No. XIV.
D was prosecuted for homicide for allegedly beating up V to death
with an iron pipe.
A.
May the prosecution introduce evidence that V had a good
reputation for peacefulness and non-violence? Why? (2%)
B.

May D introduce evidence of specific violent acts by V? Why?

(3%)
SUGGESTED ANSWER:
A.
The 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 130, sec. 51 a (3)]. In this case, the evidence is not
relevant.
B.
Yes, D may introduce evidence of specific violent acts by V.
Evidence 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 time; but it may be received to prove a specific intent
or knowledge, identity, plan, system, scheme, habit, custom or usage,
and the like. (Rule 130, sec. 34).
Evidence; confession; affidavit of recantation
1998 No XIX.
1. If the accused on the witness stand repeats his earlier
uncounseled extrajudicial confession implicating his co-accused in the
crime charged, is that testimony admissible in evidence against the
latter? [3%]
2.
What is the probative value of a witness' Affidavit of
Recantation? [2%]
SUGGESTED AJVSWEK;

Page 151 of 172

1. Yes. The accused can testify by repeating his earlier

uncounseled extrajudicial confession, because he can be subjected to
cross-examination.
2. On the probative value of an affidavit of recantation, courts
look with disfavor upon recantations because they can easily be secured
from witnesses, usually through intimidation or for a monetary
consideration, Recanted testimony is exceedingly unreliable. There is
always the probability that it will be repudiated. (Molina vs. People.
259 SCRA 138.)
Evidence; confessions and admissions
2004 NO. X
B. Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both
aged 22, in the act of robbing a grocery in Ermita. As he handcuffed
them he noted a pistol tucked in Maxs waist and a dagger hidden under
Brixs shirt, which he promptly confiscated.
At the police investigation room, Max and Brix orally waived their
right to counsel and to remain silent.
Then under oath, they freely
answered questions asked by the police desk officer.
Thereafter they
signed their sworn statements before the police captain, a lawyer. Max
admitted his part in the robbery, his possession of a pistol and his
ownership of the packet of shabu found in his pocket. Brix admitted his
role in the robbery and his possession of a dagger.
But they denied
being NPA hit men. In due course, proper charges were filed by the City
Prosecutor against both arrestees before the MM Regional Trial Court.
May the written statements signed and sworn to by Max and Brix be
admitted by the trial court as evidence for the prosecution?
Reason.
(5%)
Evidence; cross-examination
1988 (18)
(b) Raulo, accused of falsification of a public document,
testified in his own behalf. On cross-examination, he was asked to take
dictation in his own writing for the purpose of comparison. He refused.
May he be compelled to take the dictation? Explain.
Answer:
(b) Yes, since Raulo voluntarily testified in his own behalf, he
is
subject to
cross-examination on
matters covered
by direct
examination. (Sec.1(d) of Rule 115). Whenever a defendant testifying in
his own behalf, denies that a certain writing or signature is in his own
hand, he may on cross-examination be compelled to write in open court
for the purpose of comparison. (Beltran vs. Samson, 53 Phil. 580)
Evidence; dead man statute
2001 No. XVII
Maximo filed an action against Pedro, the administrator of the
estate of deceased Juan, for the recovery of a car which is part of the
latters estate. During the trial, Maximo presented witness Mariano who
testified that he was present when Maximo and Juan agreed that the
latter would pay a rental of P20,000.00 for the use of Maximos car for
one month after which Juan should immediately return the car to Maximo.
Pedro objected to the admission of Marianos testimony.
If you were the judge, would you sustain Pedros objection? Why?
(5%)
SUGGESTED ANSWER:
No, the testimony is admissible in evidence because witness
Mariano who testified as to what Maximo and Juan, the deceased person
agreed upon, is not disqualified to testify on the agreement. Those
disqualified are parties or assignors of parties to a case, or persons

Page 152 of 172

in whose behalf a case is prosecuted, against the administrator or

Juans estate, upon a claim or demand against his estate as to any
matter of fact occurring before Juans death. (Sec. 23 of Rule 130,
Rules of Court)
Evidence; dead man statute; marital disqualification
1988 (9)
Before the RTC of Pasig is Spec. Pro. No. 0001, entitled In Re
Intestate Estate of Pedro Santos, deceased, Ana Santos, Petitioner. The
notice to creditors to file their claims against the estate of the
deceased was duly published. Creditor Cruz duly filed his claim for a
P10,000-loan to the deceased which became due and payable before his
death as evidence by his (deceaseds) promissory note.
At the hearing of creditors claim of Cruz, Cruz testified and
duly identified the promissory note. Counsel objected to the testimony
of Cruz claiming that Cruz cannot testify as to matters against the
estate of a deceased person.
9.a) Is the objection valid? Explain.
9.b) Who are the persons disqualified to testify by reason of
interest or relationship, as to matters in which they are interested,
directly or indirectly?
Answer:
9.a) The objection is not valid because the authentication of the
promissory note of the deceased is a not covered by the rule on
surviving parties or the dead mans statute. Authentication is not a
matter of fact on which the claimants lips are sealed.
Alternative Answer:
9.a) The objection is valid because Cruz cannot testify as to any
matter of fact occurring before the death of the deceased. However, a
witness other than the claimant may authenticate the promissory note.
9.b) 1) Parties or assignors of parties to a cause, or persons in
whose behalf a case is prosecuted, against an executor or administrator
or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or
before such person became of unsound mind. (Dead Mans Rule)
(2) A husband cannot be examined for or against his wife
without her consent; nor wife for or against her husband without his
consent, except in a civil case by one against the other, or in a
criminal case for a crime committed by one against the other. (Sec.
20(a) and (b) of Rule 130 (Marital Disqualification).
Evidence; dying declaration
1987 No (8)
Two
statement
asked by
going to
painful.

days before the victim of a stabbing incident died,

to the police identifying the person who had stabbed
the police, the victim added that he did not know
survive because the many stab wounds he sustained

he made a
him. When
if he is
were very

Is the identification by the deceased of his assailant admissible

in evidence as an ante-mortem statement as an exception to the hearsay
rule?
Answer:
Yes. The statement of the victim identifying the person who had
stabbed him is admissible as a dying declaration. The statement was made
with consciousness of impending death, since the victim said that he did
not know if he was going to survive because of the many stab wounds he
sustained were very painful and in fact he died two days later. (People

Page 153 of 172

vs. Sarabia, 127 SCRA 100)

Another Alternative Answer:
No. The statement The statement of the victim identifying the
person who had stabbed him is not admissible as a dying declaration
because it was not made with consciousness of impending death. When he
said that he did not know if he was going to survive, he was in doubt
whether he would die or not. However, the statement is admissible as
part of the res gestae if it was made immediately or shortly after the
stabbing when the deceased had no sufficient time to concoct a charge
against the accused. (People vs. Dominguez, 36 SCRA 59; People vs.
Laquinon, 135 SCRA 91)
Evidence; dying declaration
1991 No. XV:
One evening, at 9:00 o'clock, just as he reached the gate of his
house in Apas, Cebu City, and as soon as he alighted from his car to
open the gate, Carlos was shot by Tito, who had been waiting behind a
coconut tree nearby, with a .38 caliber revolver. Carlos was hit at the
sternum of the second rib. Hearing the shot, Marilyn. Carlos' wife ran
out toward the gate and found Carlos lying on the ground, with blood
splattered on his chest. With her son, Y, she brought Carlos to the Cebu
Doctors1 Hospital. In the car, although he was in a semi-conscious
state, Carlos told Marilyn that it was Tito who shot him, Carlos was
brought to the emergency room. However, two (2) hours later, he expired.
Tito was then charged with murder before the RTC of Cebu, Marilyn was
presented as witness for the prosecution, but her testimony regarding
the above statement of Carlos was objected to under the hearsay rule.
The court overruled the objection on the ground that the statement may
be considered as a dying declaration.
(a) Is the ruling correct?
Answer:
(a) Yes, because all the requisites to admissibility of a dying
declaration are present. The fact that Carlos died two hours after he
was shot shows that his statement to Marilyn while being brought to the
hospital, that it was Tito who shot him, was made under consciousness of
impending death.
(b) What
declaration?

are

the

requisites

to

admissibility

of

dying

Answer:
(b)
1)
It
must
concern
circumstances of declarant's death;
2)

the

cause

and

the

surrounding

It was made under consciousness of Impending death;

3) The declarant was competent as a witness;

4) The declaration is offered in a civil or criminal case in
which the declarant was a victim. (Sec. 37 of Rule 130; People v.
Sagario, 14 SCRA 468)
Evidence; dying declaration
1993 No (20)
While sleeping under a tree, Kintanar was stabbed several times by
a man, sustaining multiple stab wounds on his chest with blood spurting
therefrom. Bathed in his own blood, Kintanar rushed to his house where
he was met by his wife. Kintanar informed his wife that it was Gonzales
who stabbed him. On the way to the hospital, Kintanar kept on saying
that it was Gonzales who stabbed him. He did while undergoing surgery at
the hospital.
Convicted for the killing of Kinatanar, Gonzales questioned the
admission in evidence of the ante-mortem statement of Kintanar to his
wife. He argued that form the abovecited facts, there is no indication

Page 154 of 172

that the aforesaid statement was made by the victim under consciousness
of an impending death.
Can the subject statement be considered a dying declaration?Why?
Answer:
Yes, the statement that it was Gonzales who stabbed him can be
considered a dying declaration because it concerned the crime and
surrounding circumstances of declarants death; it was made with
consciousness of impending death as shown by the fact that he died while
undergoing surgery at the hospital; the declarant was competent as a
witness; and the declaration was offered in a criminal case in which
declarant was the victim.
Alternative Answer:
Even if the statement cannot be considered a dying declaration, it
was admissible as part of the res gestae.
Evidence; dying declaration
1998 No XVIII
2.

Dying Declaration. [2%)

SUGGESTED ANSWER;
2. The requisites for the admissibility of a dying declaration
are: (a) the declaration is made by the deceased under the consciousness
of his impending death; (b) the deceased was at the time competent as a
witness; (c) the declaration concerns the cause and surrounding
circumstances of the declarant's death; and (d) the declaration is
offered in a (criminal) case wherein the declarant's death is the
subject of inquiry. (People vs. Santos, 270 SCRA 650.)
ALTERNATIVE ANSWER:
The declaration of a dying person, made under the consciousness
of an impending death, may be received in any case wherein his death is
the subject of Inquiry, as evidence of the cause and surrounding
circumstances of such death. (Sec. 37 of Rule 13O.)
Evidence; effect of an offer of compromise
1989 (11)
Pedro was charged with homicide for having hacked Ramon to death.
Before the case could be tried, the heirs of Ramon sought out Pedro and
discussed with him the possibility of settlement of the case. Pedro
agreed to a settlement. When the heirs asked how much he was willing to
pay, Pedro offered P30,000 which the heirs accepted. Is the agreement to
settle as well as the offer to pay P30,000 by Pedro admissible in
evidence against him as an implied admission of guilt? Explain.
Answer:
Yes. Under the Rules on Evidence, in criminal cases which are not
allowed by law to be compromised, an offer of compromise by the accused
nay be received in evidence as an implied admission of guilt. Since a
criminal case for homicide is not allowed by law to be compromised,
Pedros offer of P30,000 for the settlement of the case, which the heirs
accepted, is admissible in evidence against him as an implied admission
of guilt. (Sec.24 of Rule 130)
Evidence; effect of offer of settlement
1996 No. 15:
3)
X,
charged
with
rape
with
homicide,
offered
P100,000.00 as amicable settlement to the family of the victim. The
family refused. During the trial, the prosecution presented in evidence
X's offer of compromise.
What is the legal implication of such offer? Explain.
Answer:

Page 155 of 172

3)
The offer of P100,000.00 as amicable settlement in a
criminal case for rape with homicide is an implied admission of guilt.
It does not fall within the exceptions of quasl-offenses or those
allowed by law to be compromised. (Sec, 2 7 of Rule 130)
Evidence; electronic evidence
2003 No. XIX.
(a)
evidence.

State

the

rule

on

the

admissibility

of

an

electronic

(b) When is an electronic evidence regarded as being

equivalent of an original document under the Best Evidence Rule? 4%

the

SUGGESTED ANSWER:
(a)
document,
such term
in these
effective

Whenever a rule of evidence

record, instrument, memorandum
shall be deemed to include an
Rules. (Sec. 1 of Rule 3,
August 1, 2001).

refers to the term writing,

or any other form of writing,
electronic document as defined
Rules of Electronic Evidence

An electronic document is admissible in evidence if it complies

with the rules on admissibility prescribed by the Rules of Court and
related laws and is authenticated in the manner prescribed by these
Rules. (Sec. 2 of Rule 3, Id.). The 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 5, Id.).
(b) An electronic document shall be regarded as the equivalent
of an original document under the Best Evidence Rule if it is a printout
or output readable by sight or other means, shown to reflect the data
accurately. (Sec. 1 of Rule 4)
Evidence; equipoise doctrine
1995 No. 1:
1. Explain the equipoise doctrine in the law of evidence and cite
its constitutional and procedural bases.
Answer;
1.
Equipoise is the equivalent of equiponderance of evidence.
When the scale shall stand upon an equipoise and there is nothing in the
evidence which shall incline it to one side or the other, the court will
find for the defendant. (Moran Vol. 6, p. 134)
The Constitution provides that no person shall be deprived of
life, liberty or property without due process of law. nor shall any
person be denied the equal protection of the law. (Sec. 1, Art. III)
Burden of proof is the duty of a party to present evidence on the
facts in Issue necessary to establish his claim or defense by the amount
of evidence required by law. (Sec. l, Rule 131)
In a criminal case its constitutional basis is the presumption of
Innocence and the requirement of proof beyond reasonable doubt for
conviction.
Evidence; examination of witnesses
1997 No. 13:
(a)
Aside from asking a witness to explain and supplement his
answer in the cross-examination, can the proponent ask in re-direct
examination questions on matters not dealt with during crossexamination?
(b) Aside from asking the witness on matters stated in his redirect examination, can the opponent In his re-cross-examination ask
questions on matters not dealt with during the re-direct?

Page 156 of 172

(c)
After plaintiff has formally submitted his evidence, he
realized that he had forgotten to present what he considered an
important evidence. Can he recall a witness?
Answer:
(a] Yes, on redirect examination, questions on matters not dealt
with during the cross-examination may be allowed by the court in its
discretion. (Sec. 7 of Rule 132).
(b)
Yes, the opponent in his re-cross-examination may also ask
questions on such other matters as may be allowed by the court in its
discretion. (Sec. 8. Rule 132).
(c)
Yes, after formally submitting his evidence, the plaintiff
can recall a witness with leave of court. The court may grant or
withhold leave in its discretion as the interests of justice may
require. (Sec. 9. Rule 132).
Evidence; examination of witnesses
2002 No. XIII.
B.
Is this question on direct examination objectionable: What
happened on July 12,1999? Why? (2%)
SUGGESTED ANSWER:
B.
The question is objectionable because it has no
unless before the question is asked the proper basis is laid.

basis,

Evidence; formal offer of evidence

1993 No (3)
During the pre-trial of a civil case, the parties their respective
documentary evidence. Among the documents marked by the plaintiff was
the Deed of Absolute Sale of the property in litigation marked as Exh.
C).
In the course of the trial on the merits, Exh. C was identified by
the plaintiff, who was cross-examined thereon by the defendants
counsel; furthermore, the contents of Exh. C were read into the records
by the plaintiff.
However, Exh. C was not among those formally offered in evidence
by the plaintiff.
May the trial court consider Exh. C in the determination of the
action? Why?
Answer:
Yes, because not only was the Deed of Absolute Sale marked by the
plaintiff as Exh. C during the pre-trial, it was identified by the
plaintiff in the course of the trial and the plaintiff was crossexamined thereon by the defendants counsel. Furthermore, the contents
of Exh. C were read into the records by the plaintiff. Hence, the trial
court could properly reconsider Exh. C in the determination of the
action even though it was not formally offered in evidence. This is an
exception to the rule that the court shall consider no evidence which
has not been formally offered. (Sec. 35 of Rule 132).
Evidence; formal offer of evidence
1996 No. 15:
2)
X sued Y, a shipping co., based on a contract of carriage
contained in a bill of lading. The bill of lading, an actionable
document, was pleaded and attached to the complaint. Y. without alleging
anything else, merely assailed the validity of the agreement in the bill
of lading for being contrary to public policy. After presenting
evidence, X did not formally offer for admission the bill of lading. The
court ruled for X, On motion for reconsideration, Y alleged that X
failed to prove his action as the bill of lading was not formally
offered.

Page 157 of 172

Decide.
Answer:
2)
Motion for reconsideration is denied. There was no need to
formally offer for admission the bill of lading, because the failure of
Y to deny under oath the genuineness and due execution of the bill of
lading which was an actionable document constituted an admission
thereof. (Sec. 8 of Rule 8)
Evidence; formal offer of evidence
1997 No. 12:
A trial court cannot take into consideration in deciding a case
an evidence that has not been "formally offered". When are the following
pieces of evidence formally offered?
(a) Testimonial evidence
(b) Documentary evidence
(c) Object evidence Answer;
(a)
Testimonial evidence is formally offered at the time the
witness is called to testify. (Rule 132. Sec. 35, first par.).
(b)
Documentary evidence is formally offered after the
presentation of the testimonial evidence. (Rule 132, Sec. 35, second
par.).
(c) The same is true with object evidence.
after the presentation of the testimonial evidence.

It is also offered

Evidence; formal offer of evidence; res inter alios acta

2003 No. XX.
X and Y were charged with murder. Upon application of the
prosecution, Y was discharged from the Information to be utilized as a
state witness. The prosecutor presented Y as witness but forgot to state
the purpose of his testimony much less offer it in evidence. Y testified
that he and X conspired to kill the victim but it was X who actually
shot the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross-examined by the
defense counsel. After the prosecution rested its case, the defense
filed a motion for demurrer to evidence based on the following grounds.
(a) The testimony of Y should be excluded because its purpose
was not initially stated and it was not formally offered in evidence as
required by Section 34, Rule 132 of the Revised Rules of Evidence; and
(b) Ys testimony is not admissible against X pursuant to the
rule on res inter alios acta,
Rule on the motion for demurrer to evidence on the above grounds.
(6%)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:
(a) The testimony of Y should not be excluded because the
defense counsel did not object to his testimony despite the fact that
the prosecutor forgot to state its purpose or offer it in evidence.
Moreover, the defense counsel thoroughly cross-examined Y and thus
waived the objection.
(b) The res inter alios acta rule does not apply because Y
testified in open court and was subjected to cross examination.
Evidence; formal offer vs offer of proof
1991 No, XVII:
Distinguish formal offer of evidence from offer of proof.
Answer:

Page 158 of 172

A formal offer of the testimony of a witness is made at the time

the witness is called to testify, while a formal offer of documentary
and object evidence is made after the presentation of a party's
testimonial evidence. (Sec. 35 of Rule 132)
On the other hand, if documents or things offered in evidence are
excluded by the court, the offer of proof is made by having the same
attached to or made part of the record; and if the evidence excluded is
oral, the offer of proof is made by stating for the record the name and
other personal circumstances of the witness and the substance of the
proposed testimony. (Sec. 40 of Rule 132)
Evidence; hearsay evidence
2002 No. XII.
Romeo is sued for damages for injuries suffered by the plaintiff
in a vehicular accident. Julieta, a witness is court, testifies that
Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the
accident, give an excited account of the accident immediately after its
occurrence. Is Julietas testimony admissible against Romeo over proper
and timely objection? Why? (5%)
SUGGESTED ANSWER:
No, Julietas testimony is not admissible against Romeo, because
while the excited account of Antonio, a witness to the accident, was
told to Romeo, it was only Romeo who told Julieta about it, which makes
it hearsay.
Evidence; hearsay evidence; exceptions
1994 No (17)
Gerry is being tried for rape. The prosecutions evidence sought
to establish that at about 9:00 P.M. of January 20, 1994, Gerry went to
complainant Junes house to invite her to watch the festivities going on
at the town plaza. June accepted the invitation. Upon reaching the
public market, which was just a stones throw away from Junes house,
Gerry forcibly dragged June towards the banana grove behind the market
where he was able to have carnal knowledge with June for about an hour.
June did not immediately go home thereafter, and it was only in the
early morning of the following day that she narrated her ordeal to her
daughter Liza. Liza testified in court as to what June revealed to her.
17.a) Is the testimony of Liza hearsay?
17.b) Is it admissible in evidence against the objection of the
defense?
Answer:
17.a) Yes. Lizas testimony is hearsay. A witness can testify to
those facts which he knows from his own perception except as otherwise
provided in the rules. (Sec. 36, Rule 130).
17.b) No, it is not admissible in evidence against the objection
of the defense, because it is not one of the exceptions to the hearsay
rule. It is not part of the res gestae because only statements made by a
person while a startling occurrence is taking place or immediately prior
or subsequent thereto with respect to the circumstances thereof, may be
given in evidence as part of the res gestae. (Sec. 42, Rule 130). She
narrated her ordeal to her daughter Liza only in the early morning of
the following day, as she did not immediately go home after the incident
which occurred at (:00 p.m. She could have made up the story. She should
be placed on the witness stand, not Liza whose knowledge of the event is
hearsay.
Alternative Answer:
17.b) Lizas testimony is admissible as to the tenor but not as to
the truth of what June revealed to her.
Evidence; hearsay rule

Page 159 of 172

1996 No. 15:

1) At A's trial for B's murder, the defense attempts to present
as its witness his widow, X. She is to testify that just before B died,
she approached his sprawled and bloodied husband and asked who stabbed
him. B, conscious of his impending death, named Y as his assailant. The
prosecution moves to stop X from testifying because her testimony (1) is
hearsay, and (2) will be violative of the rule on privileged marital
communication.
Rule on the prosecution's motion.

Explain.

Answer:
1)
I will deny the prosecution's motion. The testimony of X is
admissible as a dying declaration, which is an exception to the hearsay
rule. (Sec. 37 of Rule 130) Moreover, it is not a privileged marital
communication. (Sec. 24-A of Rule 130}
Evidence; hearsay rule
1999 No. XVII
a.

Define hearsay evidence? (2%)

b.

What are the exceptions to the hearsay rule? (2%)

c.
A overheard B call X a thief. In an action for defamation
filed by X against B, is the testimony of A offered to prove the fact of
utterance i.e., that B called X a thief, admissible in evidence?
Explain.
(2%)
d.
The accused was charged with robbery and homicide.
The
victim suffered several stab wounds.
It appears that eleven (11) hours
after the crime, while the victim was being brought to the hospital in a
jeep, with his brother and a policeman as companions, the victim was
asked certain questions which he answered, pointing to the accused as
his assailant.
His answers were put down in writing, but since he was
a in a critical condition, his brother and the policeman signed the
statement.
Is the statement admissible as a dying declaration?
Explain. (2%)
SUGGESTED ANSWER:
a.
Hearsay evidence may be defined as evidence that consists
of testimony not coming from personal knowledge (Sec. 36, Rule 130,
Rules of Court). Hearsay testimony is the testimony of a witness as to
what he has heard other persons say about the facts in issue.
b.
The exceptions to the hearsay rule are:
dying
declaration, declaration against interest, act or declaration about
pedigree, family reputation or tradition regarding pedigree, common
reputation, part of the res gestae, entries in the course of business,
entries in official records, commercial lists and the like, learned
treatises, and testimony or deposition at a former proceeding. (Sees.
37 to 47, Rule 13O, Rules of Court)
c.
Yes. The testimony of A who overheard B call X a thief is
admissible in evidence as an independently relevant statement. It is
offered in evidence only to prove the tenor thereof, not to prove the
truth of the facts asserted therein.
Independently relevant
statements include statements which are on the very facts in issue or
those which are circumstantial evidence thereof. The hearsay rule does
not apply. (See People vs. Gaddi, 170 SCRA 649.|
d.
Yes.
The statement is admissible as a dying declaration
if the victim subsequently died and his answers were made under the
consciousness of impending death.
(Sec. 37 of Rule 130|
The 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. A dying declaration need not be in
writing (People v. Viovicente, 286 SCRA 1)
Evidence; hearsay rule; exceptions

Page 160 of 172

2003 No. XVIII.

X was charged with robbery. On the strength of a warrant of
arrest issued by the court, X was arrested by police operatives. They
seized from his person a handgun. A charge for illegal possession of
firearm was also filed against him. In a press conference called by the
police, X admitted that he had robbed the victim of jewelry valued at
P500,000.00.
The robbery and illegal possession of firearm cases were tried
jointly. The prosecution presented in evidence a newspaper clipping of
the report to the reporter who was present during the press conference
stating that X admitted the robbery. It likewise presented a
certification of the PNP Firearms and Explosive Office attesting that
the accused had no license to carry any firearm. The certifying officer,
however, was not presented as a witness. Both pieces of evidence were
objected to by the defense. (6%)
(a)

Is the newspaper clipping admissible in evidence against X?

(b) Is the certification of the PNP Firearm and Explosive Office

without the certifying officer testifying on it admissible in evidence
against X?
SUGGESTED ANSWER:
(a) Yes, the newspaper clipping is admissible in evidence
against X. regardless of the truth or falsity of a statement, the
hearsay rule does not apply and the statement may be shown where the
fact that it is made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may
constitute a fact in issue or be circumstantially relevant as to the
existence of such fact. (Gotesco Investment Corporation vs. Chatto, 210
SCRA 18 [1992]
(b) Yes, the certification is admissible in evidence against X
because a written statement signed by an officer having the custody of
an official record or by his deputy that after diligent search no record
or entry of a specified tenor is found to exist in the records of his
office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry.
(Sec. 28 of Rule 132).
Evidence; impeachment of witnesses
1996 No. 14:
2)
In the examination of witnesses, what is meant by "laying
the predicate"?
Answer;
2)
"Laying the predicate" is the procedure of impeaching a
witness by evidence of prior inconsistent statements. Before such a
witness can be impeached, the prior statements must be related to him,
with the circumstances of the times and places and the persons present,
and he must be asked whether he made such statements, and if so, allowed
to explain them. If the statements be in writing they must be shown to
him before any question is put to him concerning them. (Sec. 13 of Rule
132)
Evidence; judicial notice; foreign law
1997 No. 19:
(a)
Give three instances
judicial notice of a foreign law.
(b)

when

Philippine

court

can

take

How do you prove a written foreign law?

(c)
Suppose a foreign law was pleaded as part of the defense of
defendant but no evidence was presented to prove the existence of said
law, what is the presumption to be taken by the court as to the wordings
of said law"?

Page 161 of 172

Answer:
(a)
The three instances when a Philippine court can take
judicial notice of a foreign law are: (1) when the Philippine courts are
evidently familiar with the foreign law (Moran. Vol. 5, p. 34, 1980
edition); (2) when the foreign law refers to the law of nations (Sec. 1
of Rule 129) and (3) when it refers to a published treatise, periodical
or pamphlet on the subject of law if the court takes judicial notice of
the fact that the writer thereof is recognized in his profession or
calling as expert on the subject (Sec. 46. Rule 130).
(b)
A 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. If the
record is not kept in the Philippines, with a certificate that such
officer has the custody, if the office in which the record is kept 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 Philippines
stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office (Sec. 24, Rule 132, Zalamea v.
CA, 228 SCRA 23),
(c) The presumption is that the wordings of the foreign law are
the same as the local law. (Northwest Orient Airlines v. Court of
Appeals, 241 SCRA 192; Moran, Vol. 6. page 34, 1980 edition; Lim v.
Collector of Customs, 36 Phil. 472). This Is known as the processual
presumption.
Alternative Answers;
(a) The Philippine court can also take judicial notice of a
foreign law: 1) when the foreign statute is accepted by the Philippine
government (Rep. v. Guanzon, 61 SCRA 360); 2) when a foreign judgment
containing foreign law is recognized for enforcement (Sec. 48, Rule 39);
and 3) if it refers to common law doctrines and rules from which many of
our laws were derived (Alzua v Johnson [21 Phil. 308]).
(b) A written foreign law is proved by presenting a published
treatise, periodical or pamphlet on said foreign law if the court may
take judicial notice, or a witness expert in the subject testifies. that
the writer of the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the subject (Sec.
46. Rule 130).
Evidence; kinds; admissibility
1994 No (9)
At the trial of Ace for violation of the Dangerous Drugs Act, the
prosecution offers in evidence a photocopy of the marked P100.00 bills
used in the buy-bust operation. Ace objects to the introduction of the
photocopy on the ground that the Best Evidence Rule prohibits the
introduction of secondary evidence in lieu of the original.
9.a)
evidence?

Is

the

photocopy

real

(object)

evidence

or

documentary

9.b) Is the photocopy admissible in evidence?

Answer:
9.a) The photocopy of the marked bills is real (object) evidence
not documentary evidence, because the marked bills are real evidence.
9.b) Yes, the photocopy is admissible in evidence, because the
best evidence rule does not apply to object or real evidence.
Evidence; lost documents; secondary evidence
1992 No. XIII:
Ajax Power Corporation, a utility company, sued in the Regional
Trial Court to enforce a supposed right of way over a property owned by

Page 162 of 172

Simplicio. At the ensuing trial, Ajax presented its retired field

auditor who testified that he know 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. The original contract
was not presented. Instead, a purported copy, identified by the retired
field auditor as such, was formally offered as part of his testimony.
Rejected by the trial court, it was finally made the subject of an offer
of proof by Ajax.
Can Ajax validly claim that it had sufficiently met its burden of
proving the existence of the contract establishing its right of way?
Explain,
Suggested Answer:
No. Ajax had not sufficiently met the burden of proving the
existence of the written contract because. It had not laid the basis for
the admission of a purported copy thereof as secondary evidence. Ajax
should have first proven the execution of the original document and its
loss or destruction. (Sec. 5 of Rule 130)
Evidence; marital disqualification rule
1989 (12)
Ody sued spouses Cesar and Baby for a sum of money and damages. At
the trial, Ody called Baby as his first witness. Baby objected, joined
by Cesar, on the ground that she may not be compelled to testify against
her husband. Ody insisted and contended that after all, she would just
be questioned about a conference they had with the barangay captain, a
matter which is not confidential in nature. The trial court ruled in
favor of Ody. Was the ruling proper? Will your answer be the same if the
matters to be testified on were known to Baby or acquired by her prior
to her marriage to Cesar? Explain.
Answer:
No. Under the Rules on Evidence, a wife cannot be examined for or
against her husband without his consent, except 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 Ody against the spouses
Cesar and Baby, Baby cannot be compelled to testify for or against Cesar
without his consent. (Lezama vs. Rodriguez, 23 SCRA 1166).
The answer would be the same if the matters to be testified on
were known to Baby or acquired by her prior to her marriage to Cesar,
because the marital disqualification rule may be invoked with respect to
testimony on any fact. It is immaterial whether such matters were known
to Baby before or after her marriage to Cesar.
Evidence; marital disqualification rule
2000 No. XI.
Vida and Romeo are legally married. Romeo is charged to court
with the crime of serious physical injuries committed against Selmo, son
of Vida, step-son of Romeo. Vida witnessed the infliction of the
injuries on Selmo by Romeo. The public prosecutor called Vida to the
witness stand and offered her testimony as an eyewitness. Counsel for
Romeo objected on the ground of the marital disqualification rule under
the Rules of Court.
(a)

Is the objection valid? (3%)

(b) Will your answer be the same if Vidas testimony is offered

in a civil case for recovery of personal property filed by Selmo against
Romeo? (2%)
SUGGESTED ANSWER:
(a) No. While neither the husband nor the
or against the other without the consent of the
exception is if the testimony of the spouse is in
crime committed by one against the other or

wife may testify for

affected spouse, one
a criminal case for a
the latters direct

Page 163 of 172

descendants or ascendants. (Sec, 22, Rule 130, Rules of Court). The case
falls under this exception because Selma is the direct descendant of the
spouse Vide.
(b) No. The marital disqualification rule applies this time. The
exception provided by the rules is in a civil case by one spouse against
the other. The case here involves a case by Selmo for the recovery of
personal property against Vidas spouse, Romeo.
Evidence; marital disqualification; privileged communication
1995 No. 2:
Allan and Narita were married on 1 August 1989. After two months
Narita told Allan in confidence that 10-year old Liza whom she claimed
to be her niece was actually her daughter by a certain Basilio, a
married man.
In 1992 Narita obtained a judicial decree of nullity of her
marriage with Allan on the latter's psychological incapacity to fulfill
his marital obligations. When the decree became final, Liza, assisted by
Narita, filed ten (10) cases of rape against Allan purportedly committed
in 1991. During the trial Narita was called to the witness stand to
testify as a witness against Allan who objected thereto on the ground of
marital disqualification.
1.
Explain.

As public prosecutor, how would you meet the objection?

2.
Suppose Narita's testimony was offered while the decision
nullifying her marriage to Allan was pending appeal, would your answer
be different? Explain.
3.
Suppose Narita died during the pendency of the appeal, and
soon after, the legal wife of Basilio sued for legal separation on
sexual infidelity in view of Basilio's love affair with Narita. At the
trial Allan was called by Basilio's wife to testify that Narita confided
to him (Allan) during their marriage that Liza was her love child by
Basilio.
As counsel for Basilio, can you validly object
presentation of Allan as a witness for the plaintiff? Explain.

to

the

Answer;
1.
The objection should be overruled because the ground of
marital disqualification may be invoked only during the marriage. When
Narita was called to the witness stand, the judicial decree of nullity
of her marriage had already become final. (Sec. 22, Rule 130)
2.
No, because this ground may not be invoked in a criminal
case for a crime committed by one against the other or the latter's
direct descendants or ascendants. In this case Liza was the daughter of
Narita. (Sec. 24 (a). Rule 130)
3.
Yes. I could validly object to the presentation of Allan as
a witness on the ground that the communication of Narita was a
privileged marital communication which could be invoked during or after
the marriage. Moreover, the testimony of Allan would be hearsay.
Evidence; marital privilege rule
2004 NO. IX
B. XYZ, an alien, was criminally charged of promoting and
facilitating child prostitution and other sexual abuses under Rep. Act
No. 7610. The principal witness against him was his Filipina wife, ABC.
Earlier, she had complained that XYZs hotel was being used as a center
for sex tourism and child trafficking.
The defense counsel for XYZ
objected to the testimony of ABC at the trial of the child prostitution
case and the introduction of the affidavits she executed against her
husband as a violation of espousal confidentiality and marital privilege
rule. It turned out that DEF, the minor daughter of ABC by her first

Page 164 of 172

husband who was a Filipino, was molested by XYZ earlier.

filed for legal separation from XYZ since last year.

Thus, ABC had

May the court admit the testimony and affidavits of the wife, ABC,
against her husband, XYZ, in the criminal case involving child
prostitution? Reason. (5%)
Evidence; marital privilege; parental privilege; privileged
communication
1998 No XX
C is the child of the spouses H and W. H sued his wife W for
judicial declaration of nullity of marriage under Article 36 of the
Family Code. In the trial, the following testified over the objection of
W: C, H and D. a doctor of medicine who used to treat W. Rule on W's
objections which are the following:
1.
H cannot testify against her because of the rule on
marital privilege; [1%]
2.
C cannot testify against her because of the doctrine on
parental privilege; and [2%]
3.
D cannot testify against her because of the doctrine of
privileged communication between patient and physician. [2%]
SUGGESTED ANSWER:
1.
The rule of marital privilege cannot be invoked in the
annulment case under Rule 36 of the Family Code because it is a civil
case filed by one against the other, (Sec. 22 ,
Rule 130. Rules of
Court.)
2.
The doctrine of parental privilege cannot likewise be
Invoked by W as against the testimony of C, their child. C may not be
compelled to testify but is free to testify against her.
(Sec. 25.
Rule 130. Rules of Court; Art. 215, Family Code.)
3.
D, as a doctor who used to treat W, is disqualified to
testify against W over her objection as to any advice or treatment given
by him or any information which he may have acquired in his professional
capacity. (Sec. 24 [c], Rule 130. Rules of Court.)
ALTERNATIVE ANSWER:
If the doctor's testimony is pursuant to the requirement of
establishing the psychological incapacity of W, and he is the expert
called upon to testify for the purpose, then it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA 198.)
Evidence; memorandum
1996 No. 14:
3)
X states on direct examination that he once knew the facts
being asked but he cannot recall them now. When handed a written record
of the facts he testifies that the facts are correctly stated, but that
he has never seen the writing before.
Is the writing admissible as past recollection recorded? Explain,
Answer;
3) No, because for the written record to be admissible as past
recollection recorded. It must have been written or recorded by X 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 knew that the same was correctly written or recorded. (Sec. 16 of
Rule 132) But in this case X has never seen the writing before.
Evidence; offer to marry; circumstantial evidence
1998 No XVI.
A was accused of having raped X.

Page 165 of 172

Rule on the admissibility of the following pieces of evidence:

1.

an offer of A to marry X; and (3%]

2.
a pair of short pants allegedly left by A at the crime
which the court, over the objection of A, required him to put on, and
when he did, it fit him well. [2%]
SUGGESTED ANSWER;
1.
A's offer to marry X is admissible in evidence as an
Implied admission of guilt because rape cases are not allowed to be
compromised. (Sec. 27 of Rule 13O; People vs. Domingo, 226 SCRA 156.)
2.
The 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. The accused cannot object to the
court requiring him to put the short pants on. It is not part of his
right against self-incrimination because it is a mere physical act.
Evidence; offer to pay expenses; effect
1997 No. 14:
A, while driving his car, ran over B. A visited B at the hospital
and offered to pay for his hospitalization expenses. After the filing of
the criminal case against A for serious physical injuries through
reckless imprudence. A's insurance carrier offered to pay for the
injuries and damages suffered by B. The offer was rejected because B
considered the amount offered as inadequate.
(a) Is the offer by A to pay the hospitalization expenses of B
admissible in evidence?
(b)
Is the offer by A's insurance carrier
injuries and damages of B admissible in evidence?

to

pay

for

the

Answer:
(a) The offer by A to pay the hospitalization expenses of B is
not admissible in evidence to prove his guilt in both the civil and
criminal cases. (Rule 130, Sec. 27, fourth par.).
(b)
No. It is irrelevant. The 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.
Evidence; offfer of evidence; testimonial and documentary
1994 No (3)
3.b) What is the difference between
evidence an offer of documentary evidence?

an

offer

of

testimonial

Answer:
3.b) An 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 partys testimonial evidence. (Sec. 35,
Rule 132).
Evidence; opinion rule
1994 No (19)
At Nolans trial for possession and use of the prohibited drug,
known as shabu:, his girlfriend Kim, testified that on a particular
day, he would see Nolan 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. Nolan objects to the admissibility of
Kims testimony on the ground that Kim merely stated her opinion without
having been first qualified as expert witness.
Should you, as judge, exclude the testimony of Kim?
Answer:

Page 166 of 172

No. The testimony of Kim should not be excluded. Even though Kim
is not an expert witness, Kim may testify on her impressions of the
emotion, behavior, condition or appearance of a person. (Sec. 50, last
par., Rule 130).
Evidence; parol evidence rule
2001 No. XVI
Pedro filed a complaint against Lucio for the recovery of a sum
of money based on a promissory note executed by Lucio. In his complaint,
Pedro alleged that although the promissory note says that it is payable
within 120 days, the truth is that the note is payable immediately after
90 days but that if Pedro is willing, he may, upon request of Lucio give
the latter up to 120 days to pay the note. During the hearing, Pedro
testified that the truth is that the agreement between him and Lucio is
for the latter to pay immediately after ninety days time. Also, since
the original note was with Lucio and the latter would not surrender to
Pedro the original note which
Lucio kept in a place about one days
trip from where he received the notice to produce the note and in spite
of such notice to produce the same within six hours from receipt of such
notice, Lucio failed to do so. Pedro presented a copy of the note which
was executed at the same time as the original and with identical
contents.
a)
Over the objection of Lucio, will Pedro be allowed to
testify as to the true agreement or contents of the promissory note?
Why? (2%)
b)
Over the objection of Lucio, can Pedro present a copy of the
promissory note and have it admitted as valid evidence in his favor?
Why? (3%)
SUGGESTED ANSWER:
a)
Yes, because Pedro has alleged in his complaint that the
promissory note does not express the true intent and agreement of the
parties. This is an exception to the parol evidence rule. [Sec. 9(b) of
Rule 130, Rules of Court]
b)
Yes, the copy in the possession of Pedro is a
original and with identical contents. [Sec. 4(b) of Rule 130].
the failure of Lucio to produce the original of the note is
because he was not given reasonable notice, as requirement
Rules before secondary evidence may be presented. (Sec. 6 of
Rules of Court)

duplicate
Moreover,
excusable
under the
Rule 130,

Note: The 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 Civil Procedure). In such a case, the
genuineness and due execution of the note, if not denied under oath,
would be deemed admitted. (Sec. 8 of Rule 9, 1997 Rules of Civil
Procedure)
Evidence; preponderance vs substantial evidence
2003 No. XVII.
Distinguish preponderance of evidence from substantial evidence.
4%
SUGGESTED ANSWER:
Preponderance of evidence means that the evidence as a whole
adduced by one side is superior to that of the other. This is applicable
in civil cases. (Sec. 1 of Rule 133; Municipality of Moncada v.
Cajuigan, 21 Phil, 184 [1912]).
Substantial evidence is that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. This
is applicable in case filed before administrative or quasi-judicial
bodies. (Sec. 5 of Rule 133)
Evidence; qualifications of witnesses

Page 167 of 172

1994 No (10)
Louise is being charged with the frustrated murder of Roy. The
prosecutions lone witness, Mariter, testified to having seen Louse
prepare the poison which she later surreptitiously poured into Roys
wine glass. Louise sought the disqualification of Mariter as witness on
account of her previous conviction for perjury.
3. Rule on Louises contention.
4. Can Mariter be utilized as state witness if she is a co-accused
in the criminal case?
Answer:
3. The contention of Louise is not correct. Mariter cannot be
disqualified from being a witness on account of her previous conviction
of perjury.. Previous conviction is not a disqualification because, in
this case, it is not so provided by law. (Sec.20, Rule 130).
4. Mariter, however, cannot be utilized as a state witness if she
is a co-accused in a criminal case because an accused can be discharged
as a state witness if, among five requirements, the accused has not at
any time been convicted of any offense involving moral turpitude. (Sec.
9, Rule 119).
Evidence; qualifications of witnesses; weight of evidence
1994 No (7)
Al was accused of raping Lourdes. Only Lourdes testified on how
the crime was perpetrated. On the other hand, the defense presented Als
wife, son and daughter to testify that Al was with them when the alleged
crime took place. The prosecution interposed timely objection to the
testimonies on the ground of obvious bias due to the witnesses close
relationship with the accused.
If you were the judge:
1. How would you rule on the objection?
2. Will the fact that the version of the defense is corroborated
by three witnesses suffice to acquit Al? Why?
Answer:
1. Of I were the judge, I would overrule the objection. Close
relationship to a party is not a ground to disqualify a witness.
(Sec.20, Rule 130)
2. No.
Witnesses
are
not
numbered
but
weighed.
Positive
identification prevails over the defense of alibi. Alibi is easily
fabricated and must be proved clearly and convincingly.
Evidence; res gestae; dying declaration
1988 (17)
(a) When Tomas was stabbed on the chest during a street brawl, he
instinctively shouted for help. Emil who was nearby heard the shout and
rushed to Tomas side who when asked by Emil what happened, stated that
Kulas stabbed him.
Tomas died on account of stab wound.
(1) Could Emils testimony be received to identify Kulas? Explain.
(b) The day before the stabbing victim died, he identified
positively to the police the person who stabbed him. When he was asked
by the police if he was going to die because of his wounds, he answered
that he did not know.
(1) Is the identification by the deceased admissible as an antemortem statement and an exception to the hearsay rule? Explain.
(2) State 5 other exceptions to the hearsay rule.
Answer:

Page 168 of 172

(a) Yes, Emils testimony may be received to identify Kulas

because the statement of Tomas who has just been stabbed on the chest
that Kulas stabbed him is admissible as part of the res gestae. (Sec.36
of Rule 130)
(b) 1) No, because his answer to the question of the police, if he
was going to die, that he did not know shows that his identification of
the person who stabbed him was not made under consciousness of impending
death. Hence, the identification is not admissible as a dying
declaration or ante-mortem statement. (Sec.31 of Rule 130; People vs.
Dominguez, 36 SCRA 59)
Alternative Answer:
(b) 1) Yes, because in the case of People vs. Sarabia (127 SCRA
100) where the answer of the victim to the question of the police, if he
was going to die, was I do not know Sir because my wounds are too
painful and in fact he died two days later, the statement of the victim
identifying the person who stabbed him was admitted as a dying
declaration. This ruling may apply to this case where the victim died
the next day.
Note:
The answer will depend on the circumstances. It will have to be
decided on a case to case basis. If the wounds are serious, it can be
considered ante-mortem.
(2) Five (5) other exceptions to the hearsay rule are:
Declaration against interest
Act or declaration about pedigree
Family reputation or tradition regarding pedigree
Common reputation
Entries in the course of business
Entries in official records
Commercial lists and the like
Testimony at a former trial (Secs.32-41 of Rule 130)
Evidence; res gestae; dying declaration
1991 No. XVI:
Two (2} hours after Lt Yap of the 2nd Air Division, PAF. at the
Mactan Air Base in Lapulapu City, was shot with a .45 caliber pistol,
his Division Commander, Brig. Gen. A, visited him at the Cebu Doctors'
Hospital in Cebu City where he was Immediately brought for treatment of
the gunshot wound. Lt. Yap told A that it was Jose Comen who shot him.
Forthwith. A, who is a law graduate, took the initiative of taking down
in long hand the statement of Lt. Yap. The latter narrated the events
surrounding the incident and categorically stated that it was Jose Comen
who shot him. Lt. Yap signed the statement in the presence of A and the
attending nurse. Ten (10) days later, Lt. Yap died as a consequence of
the gunshot wound. An information for murder was filed against Jose
Comen.
At the trial, the above statement of Lt. Yap marked as Exh. "X",
was presented and identified by A who did not, however, testify that Lt
Yap read it, or that it was read to him before he (Yap) signed it. A,
nevertheless, testified that, as above stated, Lt. Yap told him that it
was Jose Comen who shot him. The defense objected to the testimony of A
and to the admission of Exh. "X" on the ground that they are hearsay.
The prosecution contended that both are exceptions to the hearsay rule
as they are part of res gestae.
(a) Is the prosecution correct?
Answer;

Page 169 of 172

(a) No, because the statement of Lt Yap to A, that it was Jose

Comen who shot him, was given two hours after he was shot. Hence, it
could not be considered as part of the res gestae, because the rule
refers to statements made by a person while a startling occurrence is
taking into place or immediately prior or subsequent thereto. (Sec. 36
of Rule 130)
(b) If the statement cannot be admitted as
gestae, may it be considered as a dying declaration?

part

of

the

res

Answer:
(b) Neither could it be considered as a dying declaration because
it was not made under consciousness of impending death, since he died
ten days later.
Another Answer:
It could be considered as a dying declaration if the gravity of
the wounds inflicted would indicate that the statement was made under
consciousness of impending death.
(c) If the testimony of A as to the revelation of Lt. Yap is not
admissible for being hearsay, may it be admitted as an independently
relevant statement?
Answer:
(c) It may not be considered as an Independently relevant
statement, because the same is being presented to establish the truth of
the fact asserted therein and not merely the tenor thereof. (People vs.
Gaddi, 170 SCRA 649]
Evidence; res inter alios rule
1991 No. XIII:
During custodial investigation at the Western Police District,
Mario Margal was informed of his constitutional right to remain silent
and to have competent and independent counsel. He decided to waive his
right to counsel and proceeded to make a statement admitting commission
of a robbery. In the same statement, he implicated Antonio Carreon, his
co-conspirator in the crime.
(b) Is it admissible against Carreon as an exception to the res
inter alios acta rule?
Answer;
(b) No, because even assuming that the conspiracy is shown by
evidence other than the statement of Margal, the statement was made
after the conspiracy had ceased. (Sec. 30 of Rule 130; People v.
Cabrera, 57 SCRA 714)
Evidence; right to cross examine
1987 No (7)
In a criminal case, the prosecution presented a witness. Midway
towards the cross-examination by the defense counsel, the defense moved
for the continuance upon the ground that it was essential that some
inquiry be made by the defense from the outside sources before the
cross-examiner could intelligently continue on the remaining factual
matters in the direct testimony. The motion was granted and the trial
was reset to another date. But the witness died so that he could not be
presented for the continuation of the cross-examination. The defense
moved to strike out the entire testimony of the deceased witness upon
the ground that otherwise the accused would be denied full enjoyment of
his right to confrontation and cross-examination.
(a) If you were the fiscal, what arguments will you offer to
oppose the motion?
(b) If you were the judge, how would you rule on the motion? Why?
Answer:

Page 170 of 172

(a) As the fiscal, I would argue that the defense had waived its
right to cross-examine the witness by not continuing the crossexamination and moving for continuance at the middle thereof; and that
even assuming there was no waiver, the entire testimony of the deceased
witness should not be stricken off the record because that portion of
the testimony on which the defense had been able to cross-examine the
witness is admissible in evidence.
(b) As the judge, I would rule that there was no waiver of the
right of cross-examination on the part of the defense inasmuch as the
court granted its motion for continuance without objection on the part
of the prosecution. However, I would deny the motion to strike out the
entire testimony of the deceased witness and admit in evidence that
portion of the testimony on which the defense had been able to crossexamine the witness. (People vs. Seeres, 99 SCRA 92)
Evidence; rules of admissibility
1997 No. 15:
Give the reasons underlying the adoption of the following rules
of evidence:
(a) Dead Man Rule?
(b) Parol Evidence Rule
(c)

Best Evidence Rule

(d)
The rule against
extrajudicial confession

the

admission

of

illegally

obtained

(e) The rule against the admission of an offer of compromise in

civil cases
Answer;
The reasons behind the following rules are as follows:
(a)
Dead Man Rule: if death has closed the lips of one party,
the policy of the law is to close the lips of the other. (Goni v. Court
ofAppeals, L-77434. September 23,1986, 144 SCRA 222).
This is to
prevent the temptation to perjury because death has already sealed the
lips of the party.
(b) Parol Evidence Rule: It 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.
(Francisco, Revised Rules of Court Vol. VII, Part I. p.
154)
(c)
Best Evidence Rule: This Rule is adopted for the prevention
of fraud and is declared to be essential to the pure administration of
justice. (Moran, Vol. 5, p. 12.) If a party is in possession of such
evidence and withholds it, the presumption naturally arises that the
better evidence is withheld for fraudulent purposes. (Francisco. Revised
Rules of Court, vol. VII. Part I, pp, 121,122)
(d) An illegally obtained extrajudlcial confession nullifies the
intrinsic validity of the confession and renders it unreliable as
evidence of the truth. (Moran, vol. 5, p. 257). it is the fruit of a
poisonous tree.
(e) The 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.
(Art. 2029, Civil Code). During pre-trial, courts should
direct the parties to consider the possibility of an amicable
settlement. (Sec. 1[a] of former Rule 20: Sec. 2 [a] of new Rule 16).
Alternative Answer;
(b) The reason rests on a presumption of integration of jural
acts which advocates that a written contract merges or integrates all

Page 171 of 172

prior and contemporaneous negotiations and that the instrument has

incorporated all terms that the parties have agreed upon. (9 Wigmore,
Sec. 2425 p. 75 (1981 ed).
(d) This provides the constitutional right of the accused to
protect himself against self-incrimination because of the police
dominated atmosphere.
Evidence; suppression of evidence; presentation of informant
1994 No (20)
On the basis of the testimonies of Narcom agents, James and Tony,
who spearheaded the buy-bust operation by posing as buyers after a tip
form a civilian informer, Steve. Bob was convicted of violation of the
Dangerous Drugs Act. On appeal, Bob claims that he is entitled to an
acquittal as the prosecution willfully suppressed evidence in not
presenting the informer, Steve, in court.
Decide Bobs contention.
Answer.
Bobs contention is not correct. The prosecution could not be
considered to have willfully suppressed evidence in not presenting in
court he informer in the buy-bust operation. The informers testimony is
not necessary in convicting Bob of violation of the Dangerous Drugs Act
because there were the testimonies of two Narcom agents who spearheaded
the operation.
Evidence; tender of excluded evidence
1996 No. 15:
4)
Aside from the testimonies of three witnesses positively
identifying accused X as having stabbed to death Y, the prosecution
seeks to present another witness, A, which it believes as material and
competent to prove its case.
X's counsel object to A's proposed
testimony as being irrelevant. The court sustained the objection.
If you were the prosecutor, what course of action would you
pursue to the end that the proposed testimony of A would form part of
the record for purposes of review? Explain.
Answer:
4)
I would make a tender of excluded evidence by stating for
the record the name and other personal circumstances of the witness and
the substance of the proposed testimony. (Sec. 40 of Rule 132)

Page 172 of 172