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BAR EXAMINATION 2006

REMEDIAL LAW
prepared by: FRANCIS DEE

-I1. What is the concept of remedial law? 2%
Answer: The concept of Remedial Law lies at the very core of
procedural due process, which means a law which hears before it
condemns, which proceeds upon inquiry and renders judgment only
after trial, and contemplates an opportunity to be heard before
judgment is rendered (Albert v. University Publishing, G.R. No. L-19118, January 30,
1965).

2. Distinguish between substantive law and remedial law. 2%
Answer: SUBSTANTIVE LAW is that part of the law which creates,
defines and regulates rights concerning life, liberty, or property, or
the powers of agencies or instrumentalities for the administration of
public affairs. This is distinguished from REMEDIAL LAW which
prescribes the method of enforcing rights or obtaining redress for
their invasion
3. How are remedial
government? 2%

laws

implemented

in

our

system

of

Answer: Remedial laws are implemented in our system of
government through the pillars of the judicial system, including the
prosecutory service, our courts of justice and quasi judicial agencies.
4. Distinguish jurisdiction from venue? 2%
Answer: JURISDICTION treats of the power of the Court to decide a
case on the merits, while VENUE refers to the place where the suit
may be filed. In criminal actions, however, venue is jurisdictional.
Jurisdiction is a matter of substantive law; venue, of procedural law.
Jurisdiction may be not be conferred by consent through waiver upon
a court, but venue may be waived, except in criminal cases

5. What do you mean by (a) real actions; and (b) personal actions?

2%
Answer:
a. REAL ACTIONS are actions affecting title to or
possession of real property or an interest therein
b. All other actions are PERSONAL ACTIONS (Rule 4, Section
I) which include those arising from privity of contract
- II What court has jurisdiction over an action for specific performance
filed by a subdivision homeowner against a subdivision developer?
Choose the correct answer. Explain. 2.5%
1. The Housing and Land Use Regulatory Board
2. The Securities and Exchange Commission
3. The Regional Trial Court
4. The Commercial Court or the Regional Trial Court designated by
the Supreme Court to hear and decide "commercial cases".
Answer: An action for specific performance by a subdivision
homeowner against a subdivision developer is within the jurisdiction
of the Housing and Land Use Regulatory Board. Sec. 1 of P.D. 1344
provides that the HLURB has jurisdiction over cases involving specific
performance of contractual and statutory obligations filed by buyers
of subdivision lots and condominium units against the owner,
developer, dealer, broker or salesman
- III 1. What is forum shopping? 2.5%
Answer: Forum shopping is the act of a party which consists of filing
multiple suits, simultaneously or successively, for the purpose of
obtaining a favorable judgment

2. Honey filed with the Regional Trial Court, Taal, Batangas a
complaint for specific performance against Bernie. For lack of a
certification against forum shopping, the judge dismissed the
complaint. Honey's lawyer filed a motion for reconsideration,
attaching thereto an amended complaint with the certification
against forum shopping. If you were the judge, how will you
resolve the motion? 5%
Answer: If I were the judge, the motion should be denied after
hearing because, as expressly provided in the Rules, failure to comply
with the requirement of forum shopping is not curable by mere

amendment of the complaint or other initiatory pleading, but shall be
cause for the dismissal of the case, without prejudice, unless
otherwise provided (Sec. 5, Rule 7, 1997 Rules of Civil Procedure).
However, the trial court in the exercise of its sound discretion, may
choose to be liberal and consider the amendment as substantial
compliance

- IV Jojie filed with the Regional Trial Court of Laguna a complaint for
damages against Joe. During the pre-trial, Jojie and her counsel failed
to appear despite notice to both of them. Upon oral motion of Jojie,
Joe was declared as in default and Jojie was allowed to present her
evidence ex palte. Thereafter, the court rendered its Decision in favor
of Jojie.
Joe hired Jose as his counsel. What are the remedies available to him?
Explain. 5%
Answer: The remedies available to a party against whom a default
decision is rendered are as follows:
1. BEFORE the judgment in default becomes final and executory:
1 Motion for Reconsideration under Rule 37;
2 Motion for New Trial under Rule 37; and
3 Appeal under Rule 41.
2. AFTER the judgment in default becomes final and executory:
1 Petition for Relief under Rule 38;
2 Annulment of Judgment under Rule 47; and
Certiorari under Rule 65.

-VMay Congress enact a law providing that a 5,000 square meter lot,
apart of the UST compound in Sampaloc, Manila, be expropriated for
the construction of a park in honor of former City Mayor Arsenio
Lacson? As compensation to UST, the City of Manila shall deliver its 5hectare lot in Sta. Rosa, Laguna originally intended as a residential
subdivision for the Manila City Hall employees. Explain. 5%
Answer: Yes, Congress may enact a law expropriating property
provided that it is for public use and with just compensation. In this
case, the construction of a park is for public use The planned
compensation, however, is not legally tenable as the determination of
just compensation is a judicial function. No statute
- VI -

Explain each mode of certiorari:
a. As a mode of appeal from the Regional Trial Court or the Court
of Appeals to the Supreme Court. 2.5%
Answer: Certiorari as a mode of appeal is governed by Rule 45 of the
Rules of Court which allows appeal from judgment, final order of
resolution of the Court of Appeals, Sandiganbayan, the RTC or other
courts whenever authorized by law to the Supreme Court by verified
petition for review raising only questions of law distinctly set forth.

b. As a special civil action from the Regional Trial Court or the
Court of Appeals to the Supreme Court. 2.5%
Answer: Certiorari as a Special Civil Action is governed by Rule 65 of
the Rules of Court when an aggrieved party may file a verified
petition against a decision, final order or resolution of a tribunal, body
or board that has acted without or in excess of its jurisdiction or
grave abuse of discretion amounting to lack or excess of jurisdiction,
when there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.

c. As a mode of review of the decisions of the National Labor
Relations Commission and the Constitutional Commissions. 2.5%
Answer: Certiorari as a mode of review of the decision of the NLRC is
elevated to the Court of Appeals under Rule 65. Certiorari as a mode
of review from the Commission on Audit (COA) and COMELEC is
elevated to the Supreme Court within 30 days from notice of the
judgment, decision or final order or resolution sought to be reviewed,
as provided for under the Rule 64 of the 1997 Rules of Civil
Procedure. In the case of the Civil Service Commission (CSC), review
of its judgments is through petitions for review under Sec. 5 of Rule
43 of the 1997 Rules of Civil Procedure.

- VII Mark filed with the Bureau of Internal Revenue a complaint for refund
of taxes paid, but it was not acted upon. So, he filed a similar
complaint with the Court of Tax Appeals raffled to one of its Divisions.
Mark's complaint was dismissed. Thus, he filed with the Court of
Appeals a petition for certiorari under Rule 65.
Does the Court of Appeals have jurisdiction over Mark's petition? 2.5
Answer: No. The procedure is governed by Sec. 11 of R. A. 9282.
Decisions of a division of the Court of Tax Appeals must be appealed

to the Court of Tax Appeals en banc. Further, the CTA now has the
same rank as the Court of Appeals and is no longer considered a
quasi-judicial agency. It is likewise provided in the said law that the
decisions of the CTA en bane are cognizable by the Supreme Court
under Rule 45 of the 1997 Rules of Civil Procedure.

- VIII Does the Court of Appeals have jurisdiction to review the Decisions in
criminal and administrative cases of the Ombudsman? 2.5%
Answer: The Supreme Court has exclusive appellate jurisdiction over
decisions of the Ombudsman in criminal cases (Sec. 14, R.A. 6770). In
administrative and disciplinary cases, appeals from the Ombudsman
must be taken to the Court of Appeals under Rule 43

- IX 1. What are the requisites for the issuance of (a) a writ of
preliminary injunction; and (b) a final writ of injunction? 2.5%
Answer: a.
Writ of Preliminary Injunction (Sec. 4, Rule 58 1997
Rules of Civil Procedure) are —
(1) A verified complaint showing;
(2) The existence of a right in esse;
(3) Violation or threat of violation of such right;
(4) Damages or injuries sustained or that will be sustained by reason
of such violation;
(5) Notice to all parties of raffle and of hearing;
(6) Hearing on the application;
(7) Filing of an appropriate bond and service thereof.

2. Distinguish between injunction as an ancillary remedy and
injunction as a main action. 2.5%
Answer: Injunction as an ancillary remedy refers to the preliminary
injunction which requires the existence of a pending principal case;
while injunction as a main action refers to the principal case itself
that prays for the remedy of permanently restraining the adverse

party from doing or not doing the act complained of.

-X1. Define a temporary restraining order (TRO). 2%
Answer: A temporary restraining order is an order issued to restrain
the opposite party and to maintain the status quo until a hearing for
determining the propriety of granting a preliminary injunction (Sec.
4[c] and [d], Rule 58,1997 Rules of Civil Procedure).

2. Maya Regional Trial Court issue injunction without bond? 2%
Answer: Yes, if the injunction that is issued is a final injunction.
Generally, however, preliminary injunction cannot issue without bond
unless exempted by the trial court (Sec. 4[b] of Rule 58).

3. What is the duration of a TRO issued by the Executive Judge of a
Regional Trial Court? 2%
Answer: In cases of extreme urgency, when the applicant will suffer
grave injustice and irreparable injury, the duration of a TRO issued ex
parte by an Executive Judge of a Regional Trial Court is 72 hours (2nd
par. of Sec. 5, Rule 58 1997 Rules of Civil Procedure). In the exercise
of his regular functions over cases assigned to his sala, an Executive
Judge may issue a TRO for a duration not exceeding a total of 20 days.

4. Differentiate a TRO from a status quo order. 2%
Answer: A status quo order (SQO) is more in the nature of a cease
and desist order, since it does not direct the doing or undoing of acts,
as in the case of prohibitory or mandatory injunctive relief. A TRO is
only good for 20 days if issued by the RTC; 60 days if issued by the
CA; until further notice if issued by the SC. The SQO is without any
prescriptive period and may be issued without a bond. A TRO dies a
natural death after the allowable period; the SQO does not. A TRO is
provisional. SQO lasts until revoked. A TRO is not extendible, but the
SQO may be subject to agreement of the parties.

5. Maya justice of a Division of the Court of Appeals issue a TRO?
2%
Answer: Yes, a justice of a division of the Court of Appeals may issue
a TRO, as authorized under Rule 58 and by Section 5, Rule IV of the

IRCA which additionally requires that the action shall be submitted on
the next working day to the absent members of the division for the
ratification, modification or recall
- XI 1. What is an interlocutory order?
Answer: An interlocutory order refers to an order issued between the
commencement and the end of the suit which is not a final decision of
the whole controversy and leaves something more to be done on its
merits.

2. What is the difference between a judgment and an opinion of the
court? 2.5%
Answer: The judgment or fallo is the final disposition of the Court
which is reflected in the dispositive portion of the decision. A decision
is directly prepared by a judge and signed by him, containing clearly
and distinctly a statement of the facts proved and the law upon which
the judgment is based
- XII Tina Guerrero filed with the Regional Trial Court of Bifian, Laguna, a
complaint for sum of money amounting to P1 Million against Carlos
Corro. The complaint alleges, among others, that Carlos borrowed
from Tina the said amount as evidenced by a promissory note signed
by Carlos and his wife, jointly and severally. Carlos was served with
summons which was received by Linda, his secretary .However,
Carlos failed to file an answer to the complaint within the 15-day
reglementary period. Hence, Tina filed with the court a motion to
declare Carlos in default and to allow her to present evidence ex
parte. Five days thereafter, Carlos filed his verified answer to the
complaint, denying under oath the genuineness and due execution of
the promissory note; and contending that he has fully paid his loan
with interest at 12% per annum.
1. Was the summons validly served on Carlos? 2.5%
Answer: The summons was not validly served on Carlos because it
was served on his secretary and the requirements for substituted
service have not been followed, such as a showing that efforts have
been exerted to serve the same on Carlos and such attempt has failed
despite due diligence
2. If you were the judge, will you grant Tina's motion to declare
Carlos in default? 2.5%
Answer: If I were the judge, I will not grant Tina's motion to declare
Carlos in default because summons was not properly served and

anyway, a verified answer to the complaint had already been filed.
Moreover, it is better to decide a case on the merits rather than on
technicality.

- XIII Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala
Alabang Village, Muntinlupa City , of sound and disposing mind,
executed a last will and testament in English, a language spoken and
written by him proficiently. He disposed of his estate consisting of a
parcel of land in Makati City and cash deposit at the City Bank in the ,
sum of P300 Million. He bequeathed P50 Million each to his 3 sons
and P150 Million to his wife. He devised apiece of land worth P100
Million to Susan, his favorite daughter-in-Iaw. He named his best
friend, Cancio Vidal, as executor of the will without bond
1. Is Cancio Vidal, after learning of Sergio's death, obliged to file
with the proper court a petition for probate of the latter's last
will and testament? 2%
Answer: Cancio Vidal is obliged to file a petition for probate and for
accepting or refusing the trust within the statutory period of 20 days
under Sec. 3, Rule 75, Rules of Court.

2. Supposing the original copy of the last will and testament was
lost, can Cancio compel Susan to produce a copy in her
possession to be submitted to the probate court? 2%
Answer: Yes, Cancio can compel Susan to produce the copy in her
possession. A person having custody of the will is bound to deliver the
same to the court of competent jurisdiction or to the executor, as
provided in Sec. 2, Rule 75, Rules of Court.

3. Can the probate court appoint the widow as executor of the will?
2%
Answer: Yes, the probate court can appoint the widow as executor of
the will if the executor does not qualify, as when he is incompetent,
refuses the trust, or fails to give bond (Sec. 6, Rule 78, Rules of
Court).

4. Can the widow and her children settle extrajudicially among
themselves the estate of the deceased? 2%

Answer: No, the widow and her children cannot settle the estate
extrajudicially because of the existence of the Will. No will shall pass
either real or personal estate unless it is proved and allowed in the
proper court

5. Can the widow and her children initiate a separate petition for
partition of the estate pending the probate of the last will and
testament by the proper court? 2%
Answer: No, the widow and her children cannot file a separate
petition for partition pending the probate of the will. Partition is a
mode of settlement of the estate (Sec. 1,
Rule 75, Rules of Court).

- XIV When is bail a matter of right and when is it a matter of discretion ?
5%
Answer: Bail is a matter of right (a) before or after conviction by the
inferior courts; (b) before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life imprisonment., when
the evidence of guilt is not strong (Sec. 4, Rule 114, 2000 Rules of
Criminal Procedure).
Bail is discretionary: Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life imprisonment (Sec. 5,
Rule 114, 2000 Rules
of Criminal Procedure).

- XV Leticia was estranged from her husband Paul for more than a year
due to his suspicion that she was having an affair with Manuel, their
neighbor. She was temporarily living with her sister in Pasig City.
For unknown reasons, the house of Leticia's sister was burned, killing
the latter. Leticia survived. She saw her husband in the vicinity during
the incident. Later, he was charged with arson in an Information filed
with the Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the witness stand
and offered her testimony to prove that her husband committed
arson.
Can Leticia testify over the objection of her husband on the ground of
martial privilege? 5%
Answer: No, Leticia cannot testify over the objection of her husband,

not under marital privilege which is inapplicable and which can be
waived, but she would be barred under Sec. 22 of Rule 130, which
prohibits her from testifying and which cannot be waived

- XVI 1. What are the requirements in order that an admission of guilt of
an accused during a custodial investigation be admitted in
evidence? 2.5%
Answer:
1 The admission must be voluntary.
2 The admission must be in writing.
3 The admission must be made with the assistance of competent,
independent counsel.
4.

The admission must be express

5.
In case the accused waives his rights to silence and to counsel,
such waiver must be in writing, executed with the assistance of
competent, independent counsel.

2. As counsel of an accused charged with homicide, you are
convinced that he can be utilized as a state witness. What
procedure will you take? Explain. 2.5%
Answer: As counsel of an accused charged with homicide, the
procedure that can be followed for the accused to be utilized as a
state witness is to ask the Prosecutor to recommend that the accused
be made a state witness
- XVII In 1996, Congress passed Republic Act No.8189, otherwise known as
the Voters' Registration Act of 1996, providing for computerization of
elections. Pursuant thereto, the COMELEC approved the Voters'
Registration and Identification System (VRIS) Project. It issued
invitations to pre-qualify and bid for the project. After the public
bidding, Fotokina was declared the winning bidder with a bid of P6
Billion and was issued a Notice of Award. But COMELEC Chairman
Gener Go objected to the award on the ground that under the
Appropriations Act, the budget for the COMELEC's modernization is
only P1 Billion. He announced to the public that the VRIS project has
been set aside. Two Commissioners sided with Chairman Go, but the
majority voted to uphold the contract.
Meanwhile, Fotokina filed with the RTC a petition for mandamus to
compel the COMELEC to implement the contract. The Office of the

Solicitor General (OSG), representing Chairman Go, opposed the
petition on the ground that mandamus does not lie to enforce
contractual obligations. During the proceedings, the majority
Commissioners filed a manifestation that Chairman Go was not
authorized by the COMELEC En Banc to oppose the petition.
1. May the OSG represent Chairman Go before the RTC
notwithstanding that his position is contrary to that of the
majority? 5%.
Answer: Yes, the OSG may represent the COMELEC Chairman before
the RTC notwithstanding that his position is contrary to that of a
majority of the Commission members in the COMELEC because the
OSG is an independent office; it's hands are not shackled to the cause
of its client agency. The primordial concern of the OSG is to see to it
that the best interest of the government is upheld ( COMELECv. QuyanoPadilla, September 18, 2002).

2. Is a petition for mandamus an appropriate remedy to enforce
contractual obligations? 5%
Answer: No, the petition for mandamus is not an appropriate
remedy because it is not available to enforce a contractual
obligation. Mandamus is directed only to ministerial acts,
directing or commanding a person to do a legal duty ( COMELECv.
Quyano-Padilla, September 18, 2002

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