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Remedial Law I
Prof. Arturo M. de Castro
(Pre-Bar Reviewer, Global Best Practice, UP Law
Center, PCU; Professor of Law, Ateneo, UP)

1. May lack of cause of action be cured by evidence presented during the

trial and amendments to conform to the evidence?
Ans: Amendments of pleadings are allowed under Rule 10 of the 1997
Rules of Civil Procedure in order that the actual merits of a case
may be determined in the most expeditious and inexpensive
manner without regard to technicalities, and that all other matters
included in the case may be determined in a single proceeding,
thereby avoiding multiplicity of suits. Section 5 thereof applies to
situations wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and to
conform to such evidence the pleadings are subsequently amended
on motion of a party. Thus, a complaint which fails to state a cause
of action may be cured by evidence presented during the trial.
(Swagman Hotels & Travel, Inc. vs. CA, et. al., G.R. No. 161135,
April 8, 2005, Davide)
2. May a complaint that lacks a cause of action at the time it was filed be
cured by the accrual of a cause of action during the pendency of the
Ans: No. The curing effect under Section 5 of Rule 10 of the 1997 Rules
of Civil Procedure is applicable only if a cause of action in fact
exists at the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts. Unless the plaintiff
has a valid and subsisting cause of action at the time his action is
commenced, the defect cannot be cured or remedied by the
acquisition or accrual of one while the action is pending, and a
supplemental complaint or an amendment setting up such afteraccrued cause of action is not permissible. Hence, contrary to the
holding of the trial court and the CA, the defect of lack of cause of
action at the commencement of this suit cannot be cured by the
accrual of a cause of action during the pendency of this case
arising from the alleged maturity of two of the promissory notes.
The action is prematurely brought and is, therefore, a groundless
suit, which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this
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rule is that a person should not be summoned before the public

tribunals to answer for complaints which are immature. (Swagman
Hotels and Travel, Inc. vs. Court of Appeals and Neal Christian,
G.R. No. 161135, April 8, 2005)
3. Is the joinder of parties subject to the rule on venue and jurisdiction?
Ans: No, as long as joinder of parties is permitted because the causes of
action arise from the same or series of transactions, and there are
common questions of facts and law, the causes of action for a sum
of money may be joined in one Complaint. Jurisdiction is
determined by the totality of the demand and the Complaint may be
filed in any venue in the Court that has jurisdiction based on the
totality of the demand.
Sec. 5 Joinder of causes of action A party may in one
pleading assert, in the alternative or otherwise, as many
causes of action as he may have against an opposing party,
subject to the following conditions:
(a) The party joining the causes of action shall comply with
the rules on joinder of parties;
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same
parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and
the venue lies therein; and
(d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
4. A files a case against B Corporation. The Sheriff serves the summons on a
Vice-President of B Corporation. Is the service of summons valid?
Ans: No, the persons authorized to receive service of summons on
behalf of the corporation are limited only to the President,
Corporate Secretary, treasurer, or in-house counsel exclusively.
5. Distinguish between lack of legal capacity to sue from lack of personality
to sue? How is insufficiency of cause of action determined?
Ans: The former refers to plaintiffs general disability to sue, such as on
account of minority, insanity, incompetence, lack of juridical
personality while the latter refers to the fact that the plaintiff is not
the real party in interest.
If the plaintiff is not a real party-in-interest, the Complaint does not
state a cause of action. The insufficiency of the cause of action
must appear in the face of the complaint in order to sustain a
dismissal on this ground, for in the determination of whether or not
a complaint states a cause of action, only the facts alleged therein
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and no other matter may be considered, and the court may not
inquire into the truth of the allegations, and find them to be false
before a hearing is had on the merits of the case; and it is improper
to inject in the allegations of the complaint facts not alleged or
proved, and use these as basis for said motion. (Nemesio
Evangelista, et. al. vs. Carmelino Santiago, G.R. No. 157447,
April 29, 2005)
6. May a party who has availed himself of a motion for new trial file a Petition
for relief?
Ans: No. A party who has filed a timely motion for new trial cannot file a
petition for relief after his motion has been denied. These two
remedies are exclusive of each other. It is only in appropriate
cases where a party aggrieved by a judgment has not been able to
file a motion for new trial that a petition for relief can be filed. (Dalia
Francisco, et. al. vs. Hon. Benigno M. Puno, G.R. No. 55694,
October 23, 1981)

1. When is Constructive service (by publication) allowed?

Ans: Service upon defendant whose identity or whereabouts are
unknown. In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service
may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such
time as the court may order. (Rules of Court, Rule 14, Sec. 14)
2. When is extra-territorial service of summons allowed?
Ans: Extra-territorial service of summons is allowed where the action is
against a non-resident defendant who is not found in the
Philippines and the action:
1) affects the personal status of plaintiffs;
2) relates to or subject of which is property in the Philippines (real
or personal), in which the defendant has claim, lien or interest,
actual or contingent; or
3) in which relief demanded consists wholly, or in part, in excluding
the defendant from any interest therein; or
4) property of defendant has been attached in the Philippines.
(Banco Espaol-Filipino v. Palanca, 37 Phil. 921 [1918];
Perkins v. Dizon, 69 Phil. 186 [1939]; Sahagum v. Court of
Appeals, G.R. No. 78328, June 3, 1991, 198 SCRA 44)
Thus, extra-territorial service of summons is proper only in actions
in rem or quasi-in-rem. The remedy against a non-resident
defendant who cannot be served with summons in the Philippines
is to locate real or personal property and attach the property. The
action becomes in rem or quasi-in-rem (Filmerco Commercial
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Co., Inc. v. Intermediate Appellate Court, No. L-70661, April 9,

1987, 149 SCRA 194) in which case, service by publication is
permissible. Where, however, the attachment is invalid, the service
by publication is void (Obaa v. Court of Appeals, G.R. No.
87635, April 27, 1989, 172 SCRA 886). To be effective, extraterritorial service of summons must be with leave of court and only
through any of the following means:
1) Personal service;
2) By publication (and copy of the summons and order of the court
must be sent by registered mail to the last known address);
3) By publication (and copy of summons and order of the court)
must be sent by registered mail at last known address; Any
other manner which the court may deem sufficient. (Rule of
Court, Rule 14, Sec. 17)
3. When is dismissal of the complaint by notice of the plaintiff with prejudice?
Ans: In the following:
1) where the notice of dismissal so provides;
2) where the plaintiff has previously dismissed the same case in a
court of competent jurisdiction;
3) even where the notice of dismissal does not provide that it is
with prejudice but it is premised on the fact of payment by the
defendant of the claims involved. For the notice of dismissal to
be effective, there must be an order confirming the dismissal.
(Rules of Court, Rule 17, Sec. 1; Minute Resolution, Gordon v.
Payumo, G.R. No. 134071, July 7, 1998)
4. When may a deposition be presented in lieu of the testimony of the
deponent who is available to testify?
Ans: The deposition would be hearsay and inadmissible, except in the
following cases:
1) For the purpose of contradicting or impeaching the testimony of
the deponent.
2) Deposition of a party or of any one who at the time of taking the
deposition was an officer, director or managing agent of a public
or private corporation partnership or association which is a party
may be used by an adverse party for any purpose.
3) Witness resides at a place more than 100 kilometers from place
of trial or is out of the Philippines unless his absence is caused
by the party offering the deposition, or the witness is unable to
testify due to age, sickness, infirmity or imprisonment, or cannot
be subpoenaed, or such exceptional circumstances in the
interest of justice, allowing the use of the deposition.

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4) If only part is offered in evidence by a party, the adverse parties

may require the presentation of all, and any party may introduce
any other parts of the deposition.
5. What are the remedies of a party declared in default
a) from notice of default but before judgment?
b) after judgment and before its finality?
c) After finality of judgment?
a) From notice of the order of default but before judgment, motion
to set aside order of default; and, in a proper case, petition for
certiorari under Rule 65.
b) After judgment but before its finality:

motion for reconsideration under Rule 37, Section 1;


motion for new trial under Rule 37, Section 1; and


appeal under Rule 41, Section 1.

c) After finality of judgment:

Within the prescribed period, petition for relief from judgment
under Rule 38, Section 1; in a proper case and within the
prescribed period, petition for certiorari under Rule 65; and in a
proper case and within the prescribed periods, petition for
annulment of judgment under Rule 47.
6. In what actions is default not permitted?
Ans: In the following:
(a) Action for declaration of the nullity of marriage; action for
annulment of marriage; and, action for legal separation.
Note: If the defending party fails to answer, the court shall order
the prosecuting attorney to investigate whether or not a
collusion exists between the parties, and if there is no collusion,
to intervene for the State in order to see to it that the evidence
submitted is not fabricated (Rules of Court, Rule 9, Sec. 3 [e]);
(b) Before expiration of period to answer as when there is a
pending motion for extension (Joesteel Container
Corporation v. Commonwealth Financing Corporation, No.
L-25778, September 30, 1982, 117 SCRA 43; Denso (Phils.),
Inc. v. Intermediate Appellate Court, No. L-75000, February
27, 1987, 148 SCRA 280; Continental Cement Corporation
v. Court of Appeals, G.R. No. 88586, April 27, 1990, 184
SCRA 728);

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(c) In actions governed by the Rule on Summary Procedure, a

motion to declare defendant in default is not allowed. (Rules of
Court, Rule 70, Secs. 13 and 19)

1. Define attachment execution.

Ans: It is the garnishment of property to satisfy a writ of execution (De
Leon v. Salvador, No. L-30871, December 28, 1970, 36 SCRA
2. When may the Court refuse to issue a Writ of execution of a final
Ans: In the following:
a When subsequent facts and circumstances transpire which
render such execution unjust, or impossible, such as a
supervening cause like the act of the Commissioner of Civil
Service finding the plaintiff administratively guilty and which
constituted a bar to his reinstatement as ordered by the trial
court in a civil case (The City of Butuan v. Ortiz, 113 Phil. 636
[1961]); or where the defendant bank was placed under
receivership (Lipana v. Development Bank of Rizal, G.R. No.
73884, September 24, 1987, 154 SCRA 257);
b On equitable grounds, as when there has been a change in the
situation of the parties which makes execution inequitable (Vda.
de Albar v. De Carandang, 116 Phil. 516 [1962]; Heirs of
Guminpin v. Court of Appeals, No. L-34220, February 21,
1983, 120 SCRA 687; Luna v. Intermediate Appellate Court,
G.R. No.68374, June 18, 1985, 137 SCRA 7);

Where the judgment has been novated by the parties (Fua Can
Lu v. Yap Fauco, 74 Phil. 287 [1943]; Zapanta v. De
Rotaeche, 21 Phil. 154 [1912]; Salvante v. Cruz, 88 Phil. 236

d When a petition for relief or an action to enjoin the judgment is

filed and a preliminary injunction is prayed for and granted (Rule
38, Sec. 5, Rules of Court);
e Where the judgment has become dormant, the five (5) year
period under Rule 39, Section 6 having expired without the
judgment having been revived (Cunanan v. Court of Appeals,
No. L-25511, September 28, 1968, 25 SCRA 263); or

Where the judgment turns out to be incomplete (Del Rosario v.

Villegas, 49 Phil. 634 [1926]; Ignacio v. Hilario, 76 Phil. 605
[1946]) or is conditional (Cu Unjieng e Hijos v. Mabalacat
Sugar Co., 70 Phil. 380 [1940]) since, as a matter of law, such
judgment cannot become final.

3. When may a Writ of Execution be quashed?

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Ans: In the following:

a when is was improvidently issued;
b when it is defective in substance;

when it is issued against the wrong party;

d where the judgment was already satisfied;

e when it was issued without authority;

when a change in the situation of the parties renders execution

inequitable ; and

g when the controversy was never validly submitted to the court.

(Cobb-Perez v. Lantin, G.R. No. 22320, May 22, 1968, 23
SCRA 637; Sandico, Sr. v. Piguing, No. L-26115, November
29, 1971, 42 SCRA 322)
4. A obtains a judgment against B adjudicating ownership of a parcel of land
in favor of A under a judgment which does not direct B to turn over
possession to A.
Must A file a separate action to recover possession from B?
Ans: No. A writ of possession is a complement of the writ of execution.
Hence, if under a final judgment the prevailing party acquires
absolute ownership over the real property involved, the writ may be
issued for him to obtain possession without the need of filing a
separate action against the possessor (Olego v. Rebuena, No. L39350, October 29, 1975, 67 SCRA 446). A writ of possession may
also be sought from and issued by the court unless a third party is
holding the property adversely to the judgment debtor (Roxas v.
Buan, No. L-53798, November 8, 1988, 167 SCRA 43).

1. a) What is the rationale of Litis Pendentia?
b) What are its requisites?
a Like res judicata as a doctrine, litis pendentia is a sanction of
public policy against multiplicity of suits (Investors Finance
Corporation v. Ebarle, No. L-70640, June 29, 1988, 163 SCRA
60). The principle upon which a plea of another action pending
is sustained is that the latter action is deemed unnecessary and
vexatious (Victronics Computers, Inc. v. Logarta, G.R. No.
104019, January 25, 1993, 217 SCRA 517; Arceo v. Oliveros,
No. L-38257, January 31, 1985, 134 SCRA 308; Andresons
Groups, Inc. v. Court of Appeals, G.R. No. 114928, January
21, 1997, 266 SCRA 423).
b The following:

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1 Identity of parties, or at least such as representing the same

interest in both actions;
2 Identity of rights asserted and prayed for, the relief being
founded on the same facts; and
3 The identity on the preceding particulars should be such that
any judgment which may be rendered on the other action
will, regardless of which party is successful, amount to res
judicata in the action under consideration. (Lamin Ents. v.
Lagamon, No. L- 57250, October 30, 1981, 108 SCRA 740;
FEU-Dr. Nicanor Reyes Medical Foundation v. Trajano,
No. L-76273, July 31, 1987, 152 SCRA 725; Suntay v.
Aquiluz, G.R. No. L-28883, June3, 1992, 209 SCRA 500;
Valencia v. Court of Appeals, G.R. No. 111401, October
17, 1996, 263 SCRA 275; Cokaliong Shipping Lines, Inc.
v. Amin, G.R. No. 112233, July 31, 1996, 260 SCRA 122)
2. a) What are the bases of the doctrine of res judicata?
b) What are its requisites?
a It is based on (1) public policy and necessity that these should
be end to litigation; and (2) the hardship on the individual of
being vexed twice for the same cause.
b The requisites for res judicata are:
1 the former judgment or order must be final;
2 it must be a judgment or order on the merits;
3 the court which rendered it had jurisdiction over the subject
matter and the parties; and
4 there must be, between the first and second actions, identity
of parties, of subject matter and of cause of action (Casil v.
Court of Appeals, G.R. No. 121534, January 28, 1998, 285
SCRA 204). Only substantial and not identity of parties is
3. What are the 2 aspects of res judicata?
Ans: The two (2) aspects of res judicata are:
a Bar by Former Judgment when, between the first case
where the judgment was rendered, and the second case where
the judgment is invoked, there is identity of parties, subject
matter and cause of action.
b Conclusiveness of Judgment when there is an identity of
parties but not cause of action, the judgment being conclusive in
the second case only as to those matters actually and directly
controverted and determined, and not as to matters invoked
thereon. (Islamic Directorate of the Philippines v. Court of
Appeals, G.R. No. 117897, May 14, 1997, 272 SCRA 454)
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1. What are the exceptions to hypothetical admission of facts alleged in the
Complaint where lack of cause of action is invoked in a motion to dismiss?
Ans: The following:
a allegations of which the court will take judicial notice are not
true; no allegations of conclusions nor allegations of fact the
falsity of which the court may take judicial notice are deemed
admitted (Mathay v. Consolidated Bank and Trust Company,
No. L-23136, August 26, 1974, 58 SCRA 560; U. Baez
Electric Light Company v. Abra Electric Cooperative, Inc.,
No. L-59480, December 8, 1982, 119 SCRA 90; Dalandan v.
Julio, No. L-19101, February 29, 1964, 10 SCRA 400;
Marcopper Mining Corporation v. Garcia, No. L-55935, July
30, 1986, 143 SCRA 178);
b legally impossible facts;

facts inadmissible in evidence; and

d facts which appear by record or document included in the

pleadings to be unfounded (Tan v. Director of Forestry, No. L24548, October 27, 1983, 125 SCRA 302);
e when other facts may be considered;

where the motion to dismiss was heard with the submission of

evidence or if documentary evidence admitted by stipulation
discloses facts sufficient to defeat the claim or admitted during
hearing on preliminary injunction (Santiago v. Pioneer Savings
and Loan Bank, G.R. No. 77502, January 15, 1988, 157 SCRA
100) the facts therein adduced may be considered;

g all documents attached to a complaint, the due execution and

genuineness of which are not denied under oath by the
defendant, must be considered as part of the complaint without
need of introducing evidence thereon (Asia Banking
Corporation v. Walter E. Olsen and Co., 48 Phil. 529 [1925]);
h in resolving a motion to dismiss, every court must take
cognizance of decisions the Supreme Court has rendered
because they are proper subjects of mandatory judicial notice
as provided by Section 1 of Rule 129 of the Rules of Court. The
said decisions, more importantly, form part of the legal system,
and failure of any court to apply them shall constitute an
abdication of its duty to resolve a dispute in accordance with
law, and shall be a ground for administrative action against an
inferior court magistrate (Peltan Development, Inc. v. Court of
Appeals, G.R. No. 117029, March 29, 1997, 270 SCRA 82);

exhaustion of administrative remedies. Where plaintiff has not

exhausted all administrative remedies, the complaint not having
alleged the fact of such exhaustion, the same may be dismissed

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for lack of cause of action (Pineda v. Court of First Instance

of Davao, 111 Phil. 643 [1961]).
2. What defenses not pleaded in the Motion to Dismiss or the Answer are not
deemed waived but may be the basis of dismissal by the Court?
Ans: The following:
a No jurisdiction over the subject matter
b litis pendentia

bar by prior judgment or res judicata, or

d prescription
3. Distinguish between Permissive and Compulsory counterclaim.
Ans: In a permissive counterclaim, the docket and other lawful fees
should be paid and the same should be accompanied by a
certificate against forum shopping and certificate to file action
issued by the proper Lupon Tagapamayapa. It should also be
answered by the claiming party. It is not barred even if not set up in
the action.
In a compulsory counterclaim, no docket fee is paid and the
certificates mentioned above are not required (Santo Tomas
University v. Surla, G.R. No. 129718, August 17, 1998, 294 SCRA
382). If it is not raised in the answer, it shall be barred (Rules of
Court, Rule 9, Sec. 2).
A compulsory counterclaim that merely reiterates special defenses
which are deemed controverted even without a reply, or raises
issues which are deemed automatically joined by the allegations of
the complaint need not be answered (Lama v. Apacible, 79 Phil.
68 [1947]; Navarro v. Bello, 102 Phil. 1019 [1958]; Gojo v.
Goyala, G.R. No. 26768, October 30, 1970, 35 SCRA 557).
However, a compulsory counterclaim which raises issues not
covered by the complaint should be answered (Feria, Annotated
1997 Rules of Court, 41).
4. Is a partial judgment appealable? Does it become final after the lapse of
period to appeal?
Ans: No, to both questions. It is interlocutory and may be appealed only
together with the judgment on the case.

What is the rationale of the constitutional requirement that a decision

must state the facts and the law on which it is based?
Ans: Without the concrete relation or statement in the judgment of the
facts alleged and proved at the trial, it is not possible to pass upon
and determine the issue raised in litigation, inasmuch as when the
facts held to be proved are not set forth in a judicial controversy, it
is impossible to administer justice, to apply the law to the points
argued, or to uphold the rights of the litigant who has the law on his

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It is not sufficient that the court or trial judge take into account the
facts brought out in an action the circumstances of each question
raised, and the nature and conditions of the proofs furnished by the
parties. He must also set out in his decision the facts alleged by the
contending parties which he finds to have been proven, the
conclusions deduced therefrom and the opinion he has formed on
the issues raised. Only then can he intelligently set forth the legal
grounds and considerations proper in his opinion for the due
determination of the case. (People v. Escober, No. L-69564,
January 29, 1988, 157 SCRA 541)
6. a) What is the effect of perfection of the appeal on the jurisdiction of the
lower court over the case?
b) What matters may the lower Court still act on despite perfection of the
Ans: The trial Court loses jurisdiction over the case, but may act on the
1 issue an order for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the
2 approve compromise of the parties prior to the transmittal of the
record on appeal to the appellate court;
3 permit the prosecution of indigent appeals;
4 order execution pending appeal in accordance with Section 2,
Rule 39; and
5 approve withdrawal of appeal.

1. What are the purposes of attachment?
Ans: The purposes of preliminary attachment are:
a to seize the property of the debtor in advanced of final judgment
and to hold it for purposes of satisfying the said judgment; or
b to enable the court to acquire jurisdiction over the action by the
actual or constructive seizure of the property in those instances
where personal service of summons on the creditor cannot be
effected. (Mabanag v. Gallemore, supra, note 293; Quasha v.
Juan, No. L-49140, November 19, 1982, 118 SCRA 505)
2. What is the purpose of Injunction or TRO?
Ans: To prevent future injury and maintain status quo the last actual,
peaceable, uncontested status which preceded the pending
controversy. (Rivera v. Florendo, No. L-57586, October 8, 1986,
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144 SCRA 643; Knecht v. Court of Appeals, G.R. No. 56122,

November 18, 1993, 228 SCRA 1)
3. Is an independent and pure action to obtain injunction allowed?
Ans: No. Independent action merely to obtain preliminary injunction is
not allowed. Some substantive relief must be sought. (Bengzon v.
Court of Appeals, G.R. No. 82567, May 31, 1988, 161 SCRA 745;
Cootauco v. Court of Appeals, G.R. No. 56565, June 16, 1988,
162 SCRA 122; Buayan v. Quintillan, supra, note 315)
4. What are the essential requisites for the issuance of Preliminary
a There must be right in esse or the existence of a right to be
b The act against which the injunction is to be directed is a
violation of such right. (Buayan Cattle Co. v. Quintillian, supra,
note 315; Saulog v. Court of Appeals, G.R. No. 119769,
September 18, 1996, 262 SCRA 51; Arcega v. Court of
Appeals, G.R. No. 122206, July 7, 1997, 275 SCRA 176)
5. In what exceptional cases may the prosecution of a criminal offense be
a For the orderly administration of justice;
b To prevent the use of the strong arm of the law in an oppressive
and vindictive manner;

To avoid multiplicity of actions;

d To afford adequate protection of constitutional rights;

e In proper cases because the statute relied upon is
unconstitutional or was held invalid (Justiniani v. Castillo,No.
L-41114, June 21, 1988, 162 SCRA 378);

Where the constitutionality of the Chinese Book Keeping Law

was questioned (Yu Cong Eng v. Trinidad, 47 Phil. 385

g Where the hearing of the libel case was enjoined by permanent

injunction after the Supreme Court in a separate case found the
communication alleged to be libelous as privileged and not
libelous (Ang v. Castro, G.R. No. L-66371, May 15, 1985, 136
SCRA 453; Justiniani v. Castillo, supra, note 345);
h Where a traffic ordinance was found to be invalid (Primicias v.
Municipality of Urdaneta, Pangasinan, No. L-26702, October
18, 1979, 93 SCRA 462); and

Where the fiscal was restrained from further proceeding with

criminal case found to be civil in nature (Guingona v. City

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Fiscal of Manila, No. L-60033, April 4, 1984, 128 SCRA 577).

Note: This was later on reconsidered (Guingona v. City Fiscal
of Manila, Reconsidered, Resolution, 137 SCRA 597).
6. When may support Pendente Lite be granted?
Ans: Support pendent elite can be granted by the court in two (2)
a civil action for support; and
b criminal action where civil liability includes support for the
offspring as a consequence of the crime.

1. What are the requisites for Declaratory Relief and Similar Remedies?
Ans: The following:
a There must be a justiciable controversy (Obiles v. Republic, 92
Phil. 864 [1953]);
b The controversy must be between persons whose interest is

The parties must have legal interest in the controversy;

d The controversy must be ripe for judicial determination (Board

of optometry v. Colet, G.R. No. 122241, July 30, 1996, 260
SCRA 88); and
e The petition must be filed before there is a breach or violation
(Rules of Court, Rule 63, Sec. 1).
2. When may an action for Declaratory Relief be converted into an ordinary
Ans: The prime specification of an action for declaratory relief is that it
must be brought before breach or violation of the statute has been
committed. Rule 63 Sec. ___ allows the court to treat an action for
declaratory relief as an ordinary action, applies only if the breach or
violation occurs after the filing of the action but before the
termination thereof and not if the breach occurred before the filing
of the action. (Gomez vs. Palomar, G.R. No. L-23645, October
29, 1968)
3. What are the contents of a judgment for Foreclosure of Real Estate
Ans: The judgment in a judicial foreclosure proceeding should:
a make a finding of the amount due the plaintiff including interest,
cost and other charges approved by the court;

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b order defendant to pay said amount within a period of not less

than ninety (90) days nor more than one hundred twenty (120)
days from entry of judgment; and

if the defendant defaults, the court should order the sale at

public auction of the mortgaged property.

4. Distinguish between the Right of Redemption and Equity of Redemption.

Ans: Equity of Redemption is the right of the defendant mortgagor to
extinguish the mortgage and retain ownership of the property by
paying the amount fixed in the decision of the court within ninety
(90) to one hundred twenty (120) days after entry of judgment or
even after the foreclosure sale but prior to its confirmation (Rules of
Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court,
No. L-70987, September 29, 1988, 166 SCRA 87). On the other
hand, right of redemption is the right granted to the debtormortgagor, his successor-in-interest or any judicial creditor of said
debtor-mortgagor or any person having a lien in the property
subsequent to its mortgage or deed of trust under which the
property is sold to redeem the property within one (1) year from the
registration of the sheriffs certificate of foreclosure sale (Rules of
Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate
Court, No. L-73859, September 26, 1988, 165 SCRA 654).
For as long as the sale have not been validly confirmed, the equity
of redemption may be exercised by the mortgagor or his
successors-in-interest (Limpin v. Intermediate Appellate Court,
supra, note 447)
5. Explain the 2 stages involved in Partition.
a First Stage Determination of the propriety of partition.
This involves a determination of whether the subject property is
owned in common and whether all the co-owners are made
parties in the case. The order may also require an accounting of
rents and profits recovered by the defendant. This order of
partition is appealable (Miranda v. Court of Appeals, No. L33007, June 18, 1976, 71 SCRA 295). If not appealed, then the
parties may partition the common property in the way they want.
If they cannot agree, then the case goes into the second stage.
However, the order of accounting may in the meantime be
executed (De Mesa v. Court of Appeals, G.R. No. 109387,
April 25, 1994, 231 SCRA 773).
b Second Stage The actual partitioning of the subject property.
This is also a complete proceeding and the order or decision is
6. Accion Interdictal. Forcible Entry and Unlawful Detainer.
a Is an action for ejectment abated by the death of the defendant?

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Ans: No. An action for ejectment is not abated by the death of the
defendan (Vda. de Salazar v. Court of Appeals, G.R. No. 121510,
November 23, 1995, 250 SCRA 305). The heirs become the
substitute defendants (Caiza v. Court of Appeals, G.R. No.
110427, February 24, 1997, 268 SCRA 640).
b How about the death of the plaintiff?
Ans: The action is in personam by the plaintiff against the defendants.
The action does not survive the death of the plaintiff (2005

The lessee cannot deny the lessors title (Rule 131, Sec. 3[b]; Reyes
v. Villaflor, No. L-15755, May 30, 1961, 2 SCRA 247).

7. State the concept of Contempt of Court.

Ans: Contempt of court is a defiance of the authority, justice or dignity of
the court, such conduct as tends to bring the authority and
administration of the law into disrespect of, to interfere with, or
prejudice parties litigant or their witnesses during litigation. It is
defined as a disobedience to the court by setting up an opposition
to its authority, justice and dignity. It signifies not only a willful
disregard or disobedience to the courts order but such conduct as
tends to bring the authority of the court and the administration of
law into disrepute or in some manner to impede the due
administration of justice. (Halili v. Court of Industrial Relations,
No. L-24864, April 30, 1985, 136 SCRA 112)
8. Distinguish Direct from Indirect Contempt.



1. Where the act In the presence of or so near

is committed
the court or judge as to
proceedings thereon.

Out of or not in the presence of

the court but which tends to
impede, obstruct or degrade
the administration of justice.

2. Necessity of a Not necessary.


A written charge or a show

cause order is necessary.

3. Necessity of a No need the court can There is a need of a hearing.

summarily impose a sanction
upon the respondent.

4. Appealability Not appealable but may be Appealable

of judgment
challenged in a petition for
5. Sanctions

exceeding a.
Php200.00 in the Municipal, Php5,000.00 in the Municipal,
Metropolitan and Municipal Metropolitan and Municipal

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Circuit Trial Court and not

exceeding Php2,000.00 in the
Regional Trial Court, Court of
Appeals and Supreme Court.

Circuit Trial Courts and not

exceeding Php30,000.00 in the
Regional Trial Court, Court of
Appeals and Supreme Court.

exceeding one (1) day in the
Municipal, Metropolitan and
Municipal Circuit Trial Courts
and not exceeding ten (10)
days in the Regional Trial
Court, Court of Appeals and
Supreme Court.

b. Imprisonment not exceeding

one (1) month in the Municipal,
Metropolitan and Municipal
Circuit Trial Courts and not
exceeding six (6) months in the
Regional Trial Court, Court of
Appeals and Supreme Court.
c. Both fine and imprisonment.




9. Distinguish civil from criminal contempt.

Ans: Two (2) Aspects of Contempt:
1 Civil Contempt is the failure to do something ordered to be done by a
court or a judge for the benefit of the opposing party therein (People
vs. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64).
2 Criminal Contempt is conduct directed against the authority and dignity
of a court or of a judge, as in unlawfully assailing or discrediting the
authority and dignity of a court or a judge or in doing a forbidden act
10. A files an unlawful detainer suit against B to eject the latter from his land. A
interposes the defense of tenancy. What must the MTC Judge do?
Ans: He must receive evidence to determine the allegations of tenancy
and if after hearing tenancy appears to be a real issue, he must
dismiss the case for lack of jurisdiction (Sumawang vs. de
Guzman, Sept. 8, 2004)

1. May a lost will and testament be probated?
Ans: Yes, if it may be established by secondary evidence. An ordinary
will may be established by the instrumental witnesses as to the due
execution and its contents after the fact of loss is proven.
If the holographic will has been lost or destroyed and not other copy
is available, the will cannot be probated because the best and
only evidence is the handwriting of the testator in said will.
However, a photostatic or Xerox copy of the lost or destroyed
holographic will may be admitted. (Rodelas vs. Aranza, G.R. No.
L-58509, December 7, 1982)
2. Is the best evidence rule applicable to photocopy of the marked money?

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Ans: The best evidence rule applies only when the contents of the
document is the subject of inquiry not when the issue relates only to
its execution. Held not applicable to photocopy of marked money.
(Herrera vs. Albag, G.R. No. 148220, June 15, 2005)
3. State the priorities in the appointment of Administrators.
Ans: Administration may be granted:
a) To the surviving spouse, or next of kin, or both, or to such
person as such surviving spouse or next of kin, requests to be
appointed, if competent and willing to serve.
b) To one or more of the principal creditors, if competent and
willing to serve, in default of the foregoing or if the surviving
spouse or next of kin, neglects for thirty (30) days after the
death of the deceased to file a petition for administration or the
request that administration be granted to some other person.
c) To such other person as the court may select, in default of the
Note: The court may disregard the preference above enumerated in
its sound discretion and its decision will not be interfered with on
appeal unless it appears that it is in error. (Silverio, Sr. v. Court of
Appeals, G.R. No. 109979, March 11, 1999, 304 SCRA 541)
4. When should a special administrator be appointed?
Ans: A special administration may be appointed (w)hen there is delay in
granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will.
(Rules of Court, Rule 80, Sec. 1) The special administrator shall
take possession and charge of the estate of the deceased until
questions causing the delay are decided and executors or
administrators appointed.
5. Does a probate court have jurisdiction to resolve questions of title?
Ans: No. A probate court can resolve questions of title only provisionally.
All that the court can do is to determine whether the properties
should or should not be included in the inventory or list of properties
to be administered by the administrator. If there is no dispute, well
and good, but if there is, then the parties, the administrator and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate
court cannot do so. (Sanchez v. Court of Appeals, G.R. No.
108947, September 29, 1997, 279 SCRA 647)
6. May legitimate minor children be allowed to adopt
a) the surname of their mothers second husband?
b) their mothers maiden name?

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a) No, because there would be a false impression of their family

relations, as it could result in confusion in their paternity.
(Padilla v. Republic, No. L-28274, April 30, 1982, 113 SCRA
b) No, because there will be confusion as to parentage as it might
create the impression that the minors were illegitimate since
they would carry the maternal surname only, which is
inconsistent with their legitimate status in their birth records.
(Naldoza v. Republic, G.R. No. L-55538, March 15, 1982, 112
SCRA 568)

1. Does Entrapment operation need Warrant of Arrest and Search Warrant?
Ans: No warrant was needed considering that the mission was not a
search but an entrapment. An arrest made after an entrapment
does not require a warrant inasmuch as it is considered a valid
warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules
of Court. Any search resulting from a lawful warrantless arrest is
valid because the accused committed a crime in flagrante delicto,
that is, the person arrested committed a crime in the presence of
the arresting officers. (Teodosio vs. CA, G.R. No. 124346. June
8, 2004)
2. When should the objection to the legality of the arrest be made?
Ans: Any objection against an arrest or the procedure in the acquisition
by the court of jurisdiction over the person of an accused should be
made at or before the arraignment; otherwise the objection is
deemed waived. (People vs. Lozada, G.R. No. 141121. July 17,
2003; People vs. Cachola, G.R. Nos. 148712-15. January 21,
3. What is the effect of posting a bail and plea of not guilty on the illegality of
the arrest?
Ans: While appellant was taken into police custody without a valid
warrant of arrest, such illegality was, however, deemed cured when
appellant applied for bail, entered a plea of "not guilty" during his
arraignment, and actively participated in the trial of his case. By so
doing, appellant submitted himself to the jurisdiction of the trial
court. (People vs. Hipol, G.R. No. 140549. July 22, 2003)
4. Which Court has authority to grant bail?
Ans: Section 17 (a), Rule 114 of the Rules of Court anticipates 2
situations. First, the accused is arrested in the same province, city
or municipality where his case is pending. Second, the accused is
arrested in the province, city or municipality other than where his
case is pending. In the first situation, the accused may file bail in
the court where his case is pending or, in the absence or
unavailability of the judge thereof, with another branch of the same
court within the province or city. In the second situation, the
accused has 2 options. First, he may file bail in the court where his
Prof. Arturo M. de Castro
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case is pending or, second, he may file bail with any regional trial
court in the province, city or municipality where he was arrested.
When no regional trial court judge is available, he may file bail with
any metropolitan trial judge, municipal trial judge or municipal circuit
trial judge therein. (De Los Santos vs. Mangino, A.M. No. MTJ03-1496. July 10, 2003)
5. Explain the concept of double jeopardy.
Ans: The proscription against double jeopardy presupposes that an
accused has been previously charged with an offense, and the
case against him is terminated either by his acquittal or conviction,
or dismissed in any other manner without his consent. As a general
rule, the following requisites must be present for double jeopardy to
attach: (1) a valid indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4) a valid plea
entered by him, and (5) the acquittal or conviction of the accused,
or the dismissal or termination of the case against him without his
express consent. However, there are two exceptions to the
foregoing rule, and double jeopardy may attach even if the
dismissal of the case was with the consent of the accused: first,
when there is insufficiency of evidence to support the charge
against him; and second, where there has been an unreasonable
delay in the proceedings, in violation of the accuseds right to
speedy trial. (Condrada Vs. People, February 28, 2003; People
vs. Billaber, G.R. Nos. 114967-68, January 26, 2004)
6. May the defense of double jeopardy be invoked even when the accused
moved for the dismissal on the ground of violation his constitutional right
to speedy trial and the dismissal by the court is provisional?
Ans: Yes. Even if the petitioners, after invoking their right to a speedy
trial, moved for the dismissal of the case and, therefore, consented
to it, the dismissal would still place them in jeopardy. The use of the
word provisional would not change the legal effect of the dismissal
(Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero,
88 Phil. 299).
If the defendant wants to exercise his constitutional right to a
speedy trial, he should ask, not for the dismissal, but for the trial of
the case. After the prosecutions motion for postponement of the
trial is denied and upon order of the court the fiscal does not or
cannot produce his evidence and, consequently, fails to prove the
defendants guilt, the court upon defendants motion shall dismiss
the case, such dismissal amounting to an acquittal of the
defendant (4 Morans Comments on the Rules of Court, 1980 Ed.,
p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People
vs Diaz, 94 Phil. 714, 717)
The dismissal of a criminal case upon motion of the accused
because the prosecution was not prepared for trial since the
complainant and his witnesses did not appear at the trial is a
dismissal equivalent to an acquittal that would bar further
prosecution of the defendant for the same offense (Salcedo vs.
Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilla
vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs.
Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016.
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2010 bar review predictions in remedial law I



See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55

SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16,
1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines
Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs.
Cloribel, 120 Phil. 775; People vs. Abao, 97 Phil. 28; People vs.
Labatete, 107 Phil. 697). (Esmea vs. Pogoy, 102 SCRA 866867 [1981])
7. Prejudicial Question (Torres vs. Garchitorina, December 27, 2003)
A marries B while As marriage to C has not been dissolved. C sues A
for Bigamy. Thereafter, A files a case for annulment of marriage against C
on the ground of fraud.
May the criminal action be suspended on the ground of Prejudicial
Question? Give 2 reasons.
Ans: No. (1) Under the new rule, the civil action must have been filed
ahead of the criminal action for prejudicial question to apply.
(2) The issue in the civil case is not determinative of the guilt or
innocence of A in the criminal case. Bigamy is committed by a
person who contracts a second marriage while the first marriage is
subsisting and has not been dissolved. Whether the prior marriage
is dissolved or not, bigamy may be committed.
8. Does the doctrine of prejudicial question apply to criminal and civil actions
which under the law may be prosecuted separately?
Ans: No. There is no prejudicial question if the civil and the criminal
action can, according to law, proceed independently of each other.
Under Rule 111, Section 3 of the Revised Rules on Criminal
Procedure, in the cases provided in Articles 32, 33, 34 and 2176 of
the Civil Code, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action
and shall require only a preponderance of evidence. (Samson vs.
Daway, G.R. Nos. 160054-55. July 21, 2004)
9. What is the concept of probable cause?
Ans: Probable cause is meant such set of facts and circumstances which
would lead a reasonably discreet and prudent man to believe that
the offense charged in the Information or any offense included
therein has been committed by the person sought to be arrested. In
determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on
common sense. A finding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been
committed and that it was committed by the accused. Probable
cause demands more than bare suspicion, it requires less than
evidence which would justify conviction. (Okabe vs. Gutierrez,
G.R. No. 150185. May 27, 2004)

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2010 bar review predictions in remedial law I



10. Can the judge rely solely on the certification of the Prosecutor on the
existence of a probable cause?
Ans: No. He has to make his own independent determination of the
existence of probable cause taking into account the supporting
documents (such as the complaint, affidavits, counter-affidavits,
sworn statements of witnesses or transcripts of stenographic notes,
if any) upon which to make his independent judgment or, at the very
least, upon which to verify the findings of the prosecutor as to the
existence of probable cause. The point is: he cannot rely solely
and entirely on the prosecutors recommendation. (Okabe vs.
Gutierrez, G.R. No. 150185. May 27, 2004)
11. What is the purpose of pre-trial in a criminal case?
Ans: The purpose of pre-trial is to consider the following: (a) plea
bargaining; (b) stipulation of facts; (c) marking for identification of
evidence of the parties; (d) waiver of objections to admissibility of
evidence; (e) modification of the order of trial if the accused admits
the charge but interposes lawful defenses; and (f) such matters as
will promote a fair and expeditious trial of the criminal and civil
aspects of the case. Facts stipulated and evidence admitted during
pre-trial bind the parties. (People Vs. Perez, February 5, 2003)
12. Does the constitutional right to bail apply to extradition proceedings?
Ans: The constitutional provision on Bail as well as Sec. 4 of Rule 114
applies only when a person has been arrested and detained for
violation of Philippine Criminal laws. It does not apply to extradition
proceedings because extradition courts do not render judgments of
conviction or acquittal. An extradition proceeding is sui generis. It
is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin
with, the process of extradition does not involve the determination
of the guilt or innocence of an accused. His guilt or innocence will
be adjudged in the court of the state where he will be extradited.
Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked
by an extraditee. (Govt. of US vs. Judge Purganan, G.R. No.
148571, September 24, 2002)
However, in Rodriguez vs. RTC Mla., Branch 17, G.R. No.
157977, February 27, 2006, the Supreme Court reversed the above
ruling and held that bail may granted to a possible extraditee upon
clear and convincing showing : (1) that he will not a flight risk or a
danger to the community, and (2) that there exist special,
humanitarian and compelling circumstances.
1. State the collateral facts doctrine. Is the best evidence rule applicable thereto?

No. Closely related to the best evidence rule is the rule that a document
or writing which is merely collateral to the issue involved in the case on
trial need not be produced. This is the collateral facts rule. Thus, where
the purpose of presenting a document is not to prove its contents, but
merely to give coherence to, or to make intelligible, the testimony of a
witness regarding a fact contemporaneous to the writing, the original of

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the document need not be presented. In this case, the contents of the
document are not sought to be proven, but are simply incidental to the
fact being testified to. Thus, the best evidence rule cannot apply. (Air
France v. Carrascoso, G.R. No. 21438, September 28, 1966, 18 SCRA
2. Is a stranger to a contract bound by the Parol Evidence rule?

Parol Evidence Rule applies only to contractual documents (Cruz v.

Court of Appeals, G.R. No. 79962, December 10, 1990, 192 SCRA
209). However, it does not apply where at least one party to the suit is not
a party nor a privy to a party to the written instrument and does not
base his claim, nor assert a right arising from the instrument or
established therein. Thus, a total stranger to the writing is not bound by its
terms and is allowed to introduce extrinsic or parol evidence against
the efficacy of the writing. (Lechugas v. Court of Appeals, Nos. L-39972
and L-40300, August 6, 1986, 143 SCRA 335)
In order that parol evidence maybe admissible, the exceptional situation,
including the fact of a subsequent agreement, must be put in issue in the
pleading. Otherwise, no parol evidence can be admissible. When the
defendant invokes such exceptional situations in his answer, such facts
are sufficiently put in issue as to allow the presentation of parol evidence.
However, if, when presented, the parol evidence is not objected to, such
objection is deemed waived.

3. What is an independent relevant statement as an exception to the hearsay

Ans: It is the second kind of res gestae consisting of a statement
explaining the ambiguous act accompanied by such statement. It is
only its tenor, not the truth of the statement, that is material and
relevant to the issue regardless of whether the statement is true or
Thus, the statement of a person fencing his property that he is
fencing the property because he owns it and he wants to protect it
from intruders is an independent relevant statement material to the
issue of the character of his possession in the concept of an owner.
4. What is a voire dire examination?
Ans: If a party against whom a witness is presented believes that the
witness is incompetent or is not aware of his obligation and
responsibility to tell the truth and the consequence of him testifying
falsely, such party may pray for leave to conduct a voire dire
examination on such witness to test his competency. The court may
motu proprio conduct the voir dire examination. The competency of
a person to take the prescribed oath is a question for the trial court
to decide. (People vs. Bisda, G.R. No. 140895. July 17, 2003)
5. Distinguish English Exchequer Rule from Harmless Error Rule.
Ans: Error in admission of evidence is presumed to have cause
prejudice and automatically results in new trial, which has been
abandoned and has given way now to the harmless error rule,
i.e., to disregard error in admission of evidence, unless substantive
wrong or miscarriage of justice has been occasioned.

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6. What is ephemeral electronics communication? Are text messages

admissible in evidence?
Ans: Complainant was able to prove, by his testimony, in conjunction
with the text messages from respondent, duly presented before the
Committee that the latter asked for One Million Pesos
(Php1,000,000.00) in exchange for a favorable decision of the
complainants criminal case with the CA. The text messages were
properly admitted by the Committee since the same are now
covered by Section 1(k), Rule 2 of the Rules on Electronic
Evidence which provides ephemeral electronic communication
refers to telephone conversations, text messages and other
electronic forms of communication the evidence of which is not
recorded or retained.
Under Section 2, Rule 11 of the Rules on Electronic Evidence,
Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or who has
personal knowledge thereof In this case, complainant who
was the recipient of said messages and therefore had personal
knowledge thereof testified on their contents and import. (Zaldy
Nuez vs. Elvira Cruz-Apao, A.M. No. CA-05-18-P, April 12, 2005)

1. What action will the Court of Appeals take if in the review of capital
a) The Court of Appeals affirms the judgment of conviction?
b) The Court of Appeals reverses the judgment of conviction?
Ans: a) The Court of Appeals will render judgment but shall not enter it
and instead shall forward the records to the Supreme Court for its
final disposition.
b) The Court of Appeals shall acquit the Accused/dismiss the case.
2. As a general rule, the filing of a motion for reconsideration is mandatory
before a Petition for Certiorari under Rule 65 may be filed. What are the
Ans: Indeed, it is settled that the filing of a motion for reconsideration is a
prerequisite to the filing of a special civil action for certiorari. This is
to give the lower court the opportunity to correct itself. It is also the
rule that since an order denying a motion to dismiss is only
interlocutory, which is neither appealable until final judgment nor
could it generally be assailed on certiorari, the remedy of the
aggrieved party is to file an answer and interpose as defenses the
objections raised in his motion to dismiss.
However, the following have been recognized as exceptions to the
general rule:
a where the order is a patent nullity, as where the court a quo has
no jurisdiction;
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2010 bar review predictions in remedial law I



b where the questions raised in the certiorari proceedings

have been duly raised and passed upon by the lower court,
or are the same as those raised and passed upon in the
lower court;

where there is an urgent necessity for the resolution of the

question and any further delay would prejudice the interests of
the Government or of the petitioner or the subject matter of the
action is perishable;

d where, under the circumstances,

reconsideration would be useless;



e where petitioner was deprived of due process and there is

extreme urgency for relief;

where, in a criminal case, relief from an order of arrest is urgent

and the granting of such relief by the trial court is improbable;

g where the proceedings in the lower court are a nullity for lack of
due process;
h where the proceeding was ex parte or in which the petitioner
had no opportunity to object; and

where the issue raised is one purely of law or where public

interest is involved. (Emphasis supplied)(Abacan, Jr., et. al. vs.
Northwestern University, Inc., G.R. No. 140777, April 8, 2005,

3. May consolidation of an ordinary civil action and Petition for issuance of

Writ of Possession be consolidated?
Ans: Yes. Petitioner claims that the Court of Appeals erred in sustaining
the trial courts order consolidating Civil Case No. 53967 with LRC
Case No. R-3951, arguing that consolidation is proper only when it
involves actions, which means an ordinary suit in a court of justice
by which one party prosecutes another for the enforcement or
protection of a right, or a prevention of a wrong. Citing A.G.
Development Corp. vs. Court of Appeals, petitioner posits that
LRC Case No. R-3951, being summary in nature and not being an
action within the contemplation of the Rules of Court, should not
have been consolidated with Civil Case No. 53967.
We do not agree. In Active Wood Products Co., Inc. vs. Court of
Appeals, this Court also deemed it proper to consolidate Civil Case
No. 6518-M, which was an ordinary civil action, with LRC Case No.
P-39-84, which was a petition for the issuance of a writ of
possession. The Court held that while a petition for a writ of
possession is an ex parte proceeding, being made on a presumed
right of ownership, when such presumed right of ownership is
contested and is made the basis of another action, then the
proceedings for writ of possession would also become groundless.
The entire case must be litigated and if need must be consolidated
with a related case so as to thresh out thoroughly all related issues.

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In the same case, the Court likewise rejected the contention that
under the Rules of Court only actions can be consolidated. The
Court held that the technical difference between an action and a
proceeding, which involve the same parties and subject matter,
becomes insignificant and consolidation becomes a logical
conclusion in order to avoid confusion and unnecessary expenses
with the multiplicity of suits.
In the instant case, the consolidation of Civil Case No. 53967 with
LRC Case No. R-3951 is more in consonance with the rationale
behind the consolidation of cases which is to promote a more
expeditious and less expensive resolution of the controversy than if
they were heard independently by separate branches of the trial
court. Hence, the technical difference between Civil Case No.
53967 and LRC Case No. R-3951 must be disregarded in order to
promote the ends of justice. (PSB vs. Sps. Maalac, Jr., G.R. No.
145441, April 26, 2005; Ynares-Santiago)
4. Explain the inherent power of the Court to amend and control its
processes and orders and cause modification of final and executory
decision to harmonize it with the facts.
Ans: The general rule is that it is the ministerial duty of the court to order
the execution of its final judgment. However, Rule 135, Section 5(g)
of the Rules of Court provides that the trial court may amend and
control its process and orders so as to make them conformable to
law and justice. It has the inherent power to control, in furtherance
of justice, the conduct of its ministerial offices, and of all other
persons in any manner connected with a case before it, in every
manner appertaining thereto. The inherent power of the court
carries with it the right to determine every question of fact and law
which may be involved in the execution. The court may stay or
suspend the execution of its judgment if warranted by the higher
interest of justice. It has the authority to cause a modification of the
decision when it becomes imperative in the higher interest of justice
or when supervening events warrant it. The court is also vested
with inherent power to stay the enforcement of its decision based
on antecedent facts which show fraud in its rendition or want of
jurisdiction of the trial court apparent on the record. In another
case, the Court held that an execution will ordinarily be stayed
pending the termination of the proceedings connected with the
principal case.
In this case, the RTC ruled that it did not amend its decision but
merely harmonized it with the December 27, 1996 Order of the
DAR Secretary and suspended its enforcement until after the said
order shall have been implemented.(Mejia vs. Gabayan, et. al.,
G.R. No. 149765, April 12, 2005; Callejo)
5. What is the basis for determining jurisdiction of the Court over action
involving title or possession of levels?
Ans: The assessed value, not the market value. MTC if the assessed
value is Php20,000.00 or less; RTC if the assessed value exceeds
6. May supplemental pleading introduce new and different causes of action?
Prof. Arturo M. de Castro
2010 bar review predictions in remedial law I



Ans: No. The parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action. In Leobrera v. Court of
Appeals, the Court ruled that when the cause of action stated in
the supplemental complaint is different from the causes of action
mentioned in the original complaint, the court should not admit the
supplemental complaint. However, a broad definition of causes of
action should be applied. (Planters Development Bank vs. LZK
Holdings and Development Corporation, G.R. No. 153777, April
15, 2005, Callejo)

1. Where may annulment of judgment of the Regional Trial Court be filed?
Ans: Court of Appeals. What are the grounds and when may it be filed
(requisites), see pages 290-291 of 1 st (green) Study Guide and
page 267 of 2nd (blue) Study Guide for the Bar.
2. When is certiorari available despite the existence of an appeal that
lapsed? (See pp. 291-292, 1st (green) Study Guide for 2003-2004
numerous decisions)
3. Explain the doctrine of judicial hierarchy of courts and its rationale. (See
pp. 238 et seq., 1st (green) Study Guide, May 6, 2006 Rex Edition)

Prof. Arturo M. de Castro

2010 bar review predictions in remedial law I