2008 Remedial Law Bar Questions and Suggested Answers

I
Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of
Manila against her sister Mary Rose, who is a resident of Singapore and is not found in
the Philippines. Upon motion, the court ordered the publication of the summons for
three weeks in a local tabloid, Bulgar. Linda, an OFW vacationing in the Philippines,
saw the summons in Bulgar and brought a copy of the tabloid when she returned to
Singapore. Linda showed the tabloid and the page containing the summons to Mary
Rose, who said, "Yes I know, my kumare Anita scanned and e-mailed that page of
Bulgar to me!"
Did the court acquire jurisdiction over Mary Rose? (4%)
Answer:
No. As a rule in constructive service, summons by publication is available only in
actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction
over the person of the defendant in an action in personam. Summons by publication
against a nonresident in an action in personam is not a proper mode of service.
II
Fe filed a suit for collection of P387,000 against Ramon in the RTC of Davao City. Aside
from alleging payment as a defense, Ramon in his answer set up counterclaims for
P100,000 as damages and P30,000 as attorney's fees as a result of the baseless filing
of the complaint, as well as for P250,000 as the balance of the purchase price of the 30
units of air conditioners he sold to Fe. Does the RTC have jurisdiction over Ramon's
counterclaims, and if so, does he have to pay docket fees therefor? (3%)
Under the same premise as paragraph (b) above, suppose that instead of alleging
payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at
the same time setting up his counterclaims, and the court grants his motion. What will
happen to his counterclaims? (3%)
ANSWER:
The court acquires jurisdiction over the Counterclaim of Ramon, it arising out of the
same transaction out of which the main action arose out of and Ramons counterclaim
involves the same parties, subject matter and issues.
According to Professor Rene Callantas notebank (collected by his students) the
following is a summation of the rules on whether or not a counterclaim is subject to
docket fees.
Rule #14: Filing fees:
Rule #1: payment of filing fees is jurisdictional in civil cases
Rule #2: how does the court determine filing fees?
You include interest, damages, attorneys fees etc. pay everything that you allege for
court fees but for jurisdictional purposes, just the principal claim
Rule #3: Sun Insurance - Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory counterclaims), or else it is deemed
prescribed
Rule #4: Alday v. FGU Insurance - Permissive counterclaims require docket fees
The claim does not arise from the principal action, but involves the same parties. This
could easily have been filed separately. Compulsory counterclaims do not require
docket fees .
In Korean Technologies case of 2009 this is how you answer the question whether
compulsory counterclaims require filing fees
From nowhere, this case required that even compulsory counterclaims have docket
fees paid. Korean Technologies cited Rule 141.
But in practice, based on an SC Resolution, the collection of filing fees on compulsory
counterclaims is suspended. This has not been lifted yet.
Alday: Payment of filing fees for compulsory counterclaims is not required. But you
have to take note of Korean Technologies now
To sum it up, the counterclaim of Ramon is subject to payment of filing fees by virtue of
Rule 141 (law), Korean Technologies (case law) and an SC Resolution (administrative
issuances).
Suppose Ramons counterclaim for the unpaid balance is P310,000, what will happen to
his counterclaims if the court dismisses the complaint after holding a preliminary hearing
on Ramons affirmative defenses? (3%)
Answer:
According to the Rules of Court, within the time provided for in the rules, you must
signify to the court either
1. You choose to pursue in a separate case the filing of your counterclaim, or
2. You wish to resolve your counterclaim in the same case as the main complaint.

SEC. 6. Counterclaim.A counterclaim is any claim which a defending party may have
against an opposing party. (6a)
SEC. 7. Compulsory counterclaim.A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out of or is connected with the
transaction or occurrence constituting the subject matter of the opposing partys claim
and does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the
court both as to the amount and the nature thereof, except that in an original action
before the Regional Trial Court, the counterclaim may be considered compulsory
regardless of the amount.
Under the same premise as paragraph (b) above, suppose that instead of alleging
payment as a defense in his answer, Ramon filed a motion to dismiss on that ground, at
the same time setting up his counterclaims, and the court grants his motion. What will
happen to his counterclaims? (3%)
Answer:
Again for variety, I cite Prof Callantas notebank that states that a counterclaim which in
practice is not executed in a separate pleading1, this counterclaim must be answered
within ten (10) days from receipt by the plaintiff (or adverse party). According to Sir
Callanta, in practice a litigant only answers a permissive counterclaim and compulsory
counterclaims are rarely answered. A counterclaim is not an answer, nor is it part of the
answer. It is a distinct cause of action which must be answered by the adverse party
within 10 days from service.
The motion is not an implied admission of the allegations of the complaint but
interposes the affirmative defense of payment. Under section 3 Rule 11 the plaintiff
shall answer the same within fifteen (15) days after being served with a copy thereof.
SEC. 3. Answer to amended complaint.-Where the plaintiff files an amended complaint
as a matter of right, the defendant shall answer the same within fifteen (15) days after
being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended
complaint within ten (10) days from notice of the Order admitting the same. An answer
earlier filed may serve as the answer to the amended complaint, if no new answer is
filed.
This Rule shall apply to the answer to an amended counterclaim amended cross-claim,
amended third (fourth, etc.)- party complaint, and amended complaint-in-intervention.
III
Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the
RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and
Nueva Ecija, respectively. May her action prosper? (3%)
The SC in Munoz vs Go Chan, a 2011 case declared that an action for declaration of
nullity of title and recovery of ownership of real property, or re-conveyance, is a real
action but it is an action in personam, for it binds a particular individual only although it
concerns the right to a tangible thing. Any judgment therein is binding only upon the
parties properly impleaded.
Since they were not impleaded as parties and given the opportunity to participate in
Civil Case No. Q-28580, the final judgment in said case cannot bind BPI Family and the
spouses Chan. The effect of the said judgment cannot be extended to BPI Family and
the spouses Chan by simply issuing an alias writ of execution against them. No man
shall be affected by any proceeding to which he is a stranger, and strangers to a case
are not bound by any judgment rendered by the court. In the same manner, a writ of
execution can be issued only against a party and not against one who did not have his
day in court. Only real parties in interest in an action are bound by the judgment therein
and by writs of execution issued pursuant thereto.
Therefore determination of venue follows the general rule that it follows the residence of
either the plaintiff or the defendant, at the option of the plaintiff, actions for
reconveyance of land being by its very nature only an ordinary civil action.
Assuming that the action was for foreclosure on the mortgage of the same parcels of
land, what is the proper venue for the action? (3%)
Answer:
There are two views as to determination of jurisdiction and venue of foreclosures on
mortgage of real property. One view states that jurisdiction always lie with the RTC
becaue it only covers the security of the property. The original action is always for
recovery of money.
The other view is that jurisdiction determination must be governed by the value of the
security.
As to venue, it lies with the location of the property foreclosed.
IV
Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against
Marcelino pleading two causes of action. The first was a demand for the recovery of
physical possession of a parcel of land situated in Pasay City with an assessed value of
P40,000; the second was a claim for damages of P500,000 for Marcelinos unlawful
retention of the property. Marcelino filed a motion to dismiss on the ground that the total
amount involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is
Marcelino correct? (4%)
ANSWER:
Under the law when the action refers to rights, title or interest over real property where
the value is 20,000 for locations outside Metro Manila and 50,000.00 within Metro
Manila area, more particularly in cases of Recovery of possession of real property, the
assessed value is the basis for determining the value of the real property subject of the
dispute.
In the Ouano case, there was a discussion as to which of Fair Market Value or
Assessed value should be used as basis for determining jurisdiction for Actions for
Recovery of possession of real property. Assessed value won.
In Ouano vs. PGTT International Investment Corporation, the Court ruled that the
jurisdiction over the subject mater of the claim is determined by the assessed value and
not the market value since the action involves ownership and possession of real
property. BP # 129 provides that MTC has jurisdiction over cases on real property
where the assessed value of the property or interest therein exclusive of damages does
not exceed P20,000 or P50,000 in civil actions in Metro Manila. the RTC on the other
hand has jurisdiction if the assessed value exceeds P20,000 or P50,000 in civil actions
in Metro Manila. Thus, the amount of damages claimed should not be added in the
computation as the law explicitly excludes from the determination of jurisdictional
amount the demand for interest, damages of whatever kind, atorneys fees, litigation
expenses, and cost. The said damages are merely incidental to, or a consequence of,
the real property. However, Administrative Circular No. 09-94 provides that in cases
where the claim for damages is the main cause of action, or one of the causes of
action, the amount of such claim shall be considered in determining the jurisdiction of
the court.
V
Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was
surprised to find on the date set for hearing that the trial court had already denied the
motion on the day of its filing, stating that the allegations of the complaint were
sufficiently made.
Did the judge gravely abuse his discretion in acting on the motion without waiting for the
hearing set for the motion? (3%)
Answer:
When a party litigant files a Motion for a Bill of Particulars, that party aims to secure a
more definite statement of facts that appear in the complaint that are not averred with
sufficient particularity. As party litigant the Motion must identify the defects in the
Complaint and details desired.
The judge gravely abused his discretion without waiting for the date set for the hearing
of the motion because how can he make a hasty determination as to the sufficiency of
the evidence for the plaintiff when the issues have not as yet been joined, the defendant
was not yet at this stage able to submit his responsive pleading.
The filing of a motion for Bill of Particulars interrupts the period to file an answer and in
no case shall the party litigant have less than five days to file the answer after his
motion for Bill of Particulars have been denied.
If the judge grants the motion and orders the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss the case if the plaintiff does not comply with the
order? (3%)
Answer:
Yes. The court can dismiss the case according to the case of Virata vs Sandiganbayan
that cites Rule 17, section 3 on non-compliance of a court order by a party.
VI
After his properties were attached, defendant Porfirio filed a sufficient counterbond. The
trial court discharged the attachment. Nonetheless, Porfirio suffered substantial
prejudice due to the unwarranted attachment. In the end, the trial court rendered a
judgment in Porfirios favor by ordering the plaintiff to pay damages because the plaintiff
was not entitled to the attachment. Porfirio moved to charge the plaintiffs attachment
bond. The plaintiff and his sureties opposed the motion, claiming that the filing of the
counterbond had relieved the plaintiffs attachment bond from all liability for the
damages. Rule on Porfirios motion. (4%)
Answer:
At the outset the purpose of filing a counterbond is to indemnify the officer of the court
charged with releasing property previously attached by a party litigant through the writ
of attachment. It is by these merits of a counterbond that the Supreme Court elucidated
in the case of Magaling vs Ong that the mere filing of a counterbond does not
automatically discharge the attachment. There must be a specific resolution for the
discharge.
VII
The writ of execution was returned unsatisfied. The judgment obligee subsequently
received information that a bank holds a substantial deposit belonging to the judgment
obligor. If you are the counsel of the judgment obligee, what steps would you take to
reach the deposit to satisfy the judgment? (3%)
Answer:
According to Section 9 of the Rules of Court on Execution of judgments for money, If
the judgment obligor cannot pay all or part of the obligation in cash, certified bank check
or other mode of payment acceptable to the judgment obligee, the officer shall levy
upon the properties of the judgment obligor of every kind and nature whatsoever which
may be disposed of for value and the court officer shall first levy on the personal
properties. Debts and Credits may also be garnished and the court officer may levy on
debts due the judgment obligor and other credits, including bank deposits not capable
of manual delivery in the possession or control of third parties. Levy shall be made by
serving notice upon the person having in his possession or control such credits to which
the judgment obligor is entitled.
The garnishee shall make a written report to the court within five days from service of
the notice of garnishment stating whether or not the judgment obligor has sufficient
funds or credits to satisfy the amount of the judgment. If not, the report shall state how
much funds or credits the garnishee holds for the judgment obligor. The garnished
amount in cash, or certified bank check issued issued in the name of the judgment
obligee, shall be delivered directly to the judgment obligee within ten (10 working days
from service of notice on said garnishee requiring such delivery.
Based on the foregoing, the sheriff is required to first make a demand of the obligor the
immediate payment of the full amount stated in the writ of execution before a levy can
be made. In a case, respondent had shown that he caused the service of the writ of
execution pending appeal upon PAL thru its legal department on December 11, 2002 at
3:25 p.m. Records will show that while PAL received the copy of the writ on December
11, 2002, its depository banks received copies of the writ as well as notices of
garnishment on the same day at an earlier time than PAL received the writ of execution
as shown by the stamped receipt thereon, thus, China Bank at 2:32 p.m., JPMorgan
Chase Bank at 2:48 p.m., Hongkong and Shanghai Bank at 2:54 p.m., and Allied
Banking Corporation at 3:20 p.m. Notably, respondent did not observe the procedure
mandated under the Rules of Court that he should first make a demand of the obligor
the immediate payment of the full amount stated in the writ of execution.
An expeditious execution of the writ should not be done at the expense of depriving the
obligor the chance to pay the judgment debt.
If the bank denies holding the deposit in the name of the judgment obligor but your
clients informant is certain that the deposit belongs to the judgment obligor under an
assumed name, what is your remedy to reach the deposit? (3%)
Answer:
As counsel I will cause the service of copies of the writ as well as the notice for
garnishment on the bank that my clients informant will point out as possible
depositaries of funds belonging to the judgment obligor and funds held in accounts
bearing possible assumed names or identities of the judgment obligor. This is legal
because we are not exactly requiring the bank to divulge the amounts held but only the
information as to whether or not funds exist in their institution that belongs to the
judgment obligor.
VIII
Bembol was charged with rape. Bembols father, Ramil, approached Artemon, the
victims father, during the preliminary investigation and offered P1 Million to Artemon to
settle the case. Artemon refused the offer.
During trial, the prosecution presented Artemon to testify on Ramils offer and thereby
establish an implied admission of guilt. Is Ramils offer to settle admissible in evidence?
(3%)
During the pre-trial, Bembol personally offered to settle the case for P1 Million to the
private prosecutor, who immediately put the offer on record in the presence of the trial
judge. Is Bembols offer a judicial admission of his guilt? (3%)
Answer:
No. An offer to compromise does not, as a general rule, amount to an admission of
liability
It is an implied admission of guilt.
However prosecution must prove by preponderance of evidence that there is an
admission of liability th reason being that there is no presumption and due to the fact
that the proof will only result in a judgment of pecuniary damages or establish civil right.
Guilt beyond reasonable doubt is still required to convict Bembol.
Moreover during pre-trial proceedings, it is mandatory for parties to thresh out
preliminary issues, define terms, explore the possibility of a compromise so as to aid
the courts in unclogging its dockets by mapping out undefined territories before both
parties could go to trial.
IX
The search warrant authorized the seizure of undetermined quantity of shabu. During
the service of the search warrant, the raiding team also recovered a kilo of dried
marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana
leaves as evidence for the violation of Section 11 of the Comprehensive Dangerous
Drugs Act of 2002 since they were not covered by the search warrant. The State
justified the seizure of the marijuana leaves under the plain view doctrine. There was
no indication of whether the marijuana leaves were discovered and seized before or
after the seizure of the shabu. If you are the judge, how would you rule on the motion to
suppress? (4%
Answer:
Motion to quash a search warrant or to suppress evidence (Section 14 of Rule 126)
- A motion to quash a search warrant and/or to suppress evidence obtained thereby
may be filed in and acted upon only by the court where the action has been instituted. If
no criminal action has been instituted, the motion may be filed in and resolved by the
court that issued search warrant. However, if such court failed to resolve the motion and
a criminal case is subsequently filed in another court, the motion shall be resolved by
the latter court.
In a case,Atty. Oliver Lozano defended an alleged drug lord by filing a motion to
suppress the States evidence, a shipload of drugs. Atty. Lozano argued that there was
no evidence linking the boatload of drugs to the accused, that the ship was registered in
another persons name, etc. The judge agreed with this contention and dismissed the
complaint without a full-blown trial.
As for Motions for judicial determination of probable cause, the case of People of the
Philippines vs. Castillo et al, G.R. No.1188, June 19, 2009 gives an instruction on this
point.
There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary investigation.
It is a function that properly pertains to the public prosecutor who is given a broad
discretion to determine whether probable cause exists and to charge those whom he
believes to have committed the crime as defined by law and thus should be held for
trial. Otherwise stated, such official has the quasi-judicial authority to determine whether
or not a criminal case must be filed in court. Whether or not that function has been
correctly discharged by the public prosecutor, i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the
trial court itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the
judge to ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted there is necessity
for placing the accused under custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.
Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if
he or she deems that there is no probable cause for doing so, the judge in turn should
not override the public prosecutors determination of probable cause to hold an accused
for trial on the ground that the evidence presented to substantiate the issuance of an
arrest warrant was insufficient. It must be stressed that in our criminal justice system,
the public prosecutor exercises a wide latitude of discretion in determining whether a
criminal case should be filed in court, and that courts must respect the exercise of such
discretion when the information filed against the person charged is valid on its face, and
that no manifest error or grave abuse of discretion can be imputed to the public
prosecutor.
Summing up, a judicial determination of probable cause is concerned with the matter of
whether the judge should issue a warrant of arrest against the accused or not. As to
whether there is probable cause for the filing of the case in court, that is the
responsibility, not of the judge, but of the prosecutors office. Defense lawyers should
now refrain from filing a motion for judicial determination of probable cause for three
reasons:
The judge is already duty-bound to determine whether there is probable cause for the
issuance of a warrant of arrest. He studies the records of the preliminary investigation
(complaint, counter-affidavit, affidavit of witnesses, documentary evidences, etc. He
then decides whether to issue a warrant of arrest or not. There is therefore no need for
a defense lawyer to file a motion for judicial determination of probable cause. By filing
such a motion, the defense lawyer disrespects or even insults the judge.
As discussed above, the defense lawyers intention for filing this motion is actually to
shortcut the proceedings by asking the judge to rule whether the accused should be
held for trial or not, even without a full-blown trial. As the Supreme Court ruled in this
case, whether or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may not be
compelled to pass upon.
(In one controversial case extensively covered by the media, the judge has already
issued a warrant of arrest and the accused has posted bail. But the judge re-set the
arraignment because the defense lawyer has filed a motion for judicial determination of
probable cause. I wonder if the defense lawyer and the judge are aware of the
Supreme Court ruling in the People of the Philippines vs. Castillo et al case.
If the defense lawyer thinks that the information filed against the accused is not valid on
its face and that there was manifst error or grave abuse of discretion on the part of the
public prosecutor, the proper remedy is to file a motion for re-investigation, not a
motion for judicial determination of probable cause.
X
Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the
RTC judge issued the warrants for their arrest. Learning of the issuance of the warrants,
the three accused jointly filed a motion for reinvestigation and for the recall of the
warrants of arrest. On the date set for hearing of their motion, none of the accused
showed up in court for fear of being arrested. The RTC judge denied their motion
because the RTC did not acquire jurisdiction over the persons of the movants. Did the
RTC rule correctly? (4%)
Answer:
No. The RTC erred in denying the motion. Under the law, voluntary appearance is one
of the modes of acquiring jurisdiction over the reinvestigation and for the recall of the
warrants of arrest is equivalent to voluntary appearance. Hence, when the accused filed
their motion, the court acquired jurisdiction over their person.
Basically, it just says the court acquires jurisdiction over the person of the accused
when he/she submits motions, etc even if hes not detained. But the exception is the
petition for admission to bail - the accused has to be held in detention in such case.
The voluntary appearance of the accused, whereby the court acquires jurisdiction over
his person, is accomplished either by his pleading to the merits (such as by filing a
motion to quash or other pleadings requiring the exercise of the courts jurisdiction
thereover, appearing for arraignment, entering trial) or by filing bail.
XI
Arturo lent P1 Million to his friend Robert on the condition that Robert execute a
promissory note for the loan and a real estate mortgage over his property located in
Tagaytay City. Robert complied. In his promissory note dated September 20, 2006,
Robert undertook to pay the loan within a year from its date at 12% per annum interest.
In June 2007, Arturo requested Robert to pay ahead of time but the latter refused and
insisted on the agreement. Arturo issued a demand letter and when Robert did not
comply, Arturo filed an action to foreclose the mortgage. Robert moved to dismiss the
complaint for lack of cause of action as the debt was not yet due. The resolution of the
motion to dismiss was delayed because of the retirement of the judge.
On October 1, 2007, pending resolution of the motion to dismiss, Arturo filed an
amended complaint alleging that Roberts debt had in the meantime become due but
that Robert still refused to pay. Should the amended complaint be allowed considering
that no answer has been filed? (3%)
Answer:
No. In the instant case, the original complaint was for the FORECLOSURE of the real
estate mortgage executed in favor of ARTURO. Arturo prayed for the foreclosure on the
mortage constituted by Roberto as security for the payment of his loan to Arturo which
matures on September 2007, months before the Foreclosure action was instituted by
Arturo. Realizing his mistake now Arturo amends his comlaint and runs after the
mortgaged properties under the theory of matured loans only now becoming due and
demanda
Parenthetically, the amendments sought altered the cause of action of the original
complaint. This cannot be done.
Roberts contentions are anchored on the following:
I
Section 2, Rule 1 0 of the Rules of Court gives a party a right to amend his pleading
once as a matter of right.
II
The mere filing of a motion to dismiss does not deprive plaintiffs of their right to amend
as a matter of course.
Sections 1 and 2, Rule 10 of the Revised Rules of Court provide:
Section 1. Amendments in general. Pleadings may be amended by adding or striking
out an allegation or the name of any party, or by correcting a mistake in the name of a
party or a mistaken or inadequate allegation or description in any other respect, so that
the actual merits of the controversy may speedily be determined, without regard to
technicalities, and in the most expeditious and inexpensive manner.
Section 2. When amendments allowed as a matter of right A party may amend his
pleading once as a matter of course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is permitted and the action
has not been placed upon the trial calendar, he may so amend it at any time within ten
(10) days after it is served.
Taking into consideration these two provisions, we have ruled that amendments of
pleadings may be resorted to subject to the condition that the amendments sought do
not alter the cause of action of the original complaint (Alger Electric v. Court of Appeals,
135 SCRA 37) or are not inconsistent with the allegations in the original complaint, but
are obviously intended to clarify the intrinsic ambiguity in them with respect to the time
of the accrual of the movants cause of action Guino v. Ver, 16 SCRA 638).
Would your answer be different had Arturo filed instead a supplemental complaint
stating that the debt became due after the filing of the original complaint? (2%)
Answer:
Yes. The supplemental complaint alleged petitioners subsequent acts in asserting its
rights as such purported obligee and mortgagor. Thus, the acts complained of under the
supplemental complaint, namely: that ARTURO makes a second demand on the
amounts owing and due from Roberto are acts calculated to exercise Arturos rights,
validly or invalidly.
The cause of action raised in the supplemental complaint did not substantially change
the case theory or that the theory of the case altered the causes of action contained in
the original complaint. If at all, the new allegations in the supplemental complaint sought
remedies only for subsequent acts perpetrated by Roberto, his not filing of an answer to
the original complaint, to protect his rights or in furtherance of his interests.
XII
After receiving the adverse decision rendered against his client, the defendant, Atty.
Sikat duly filed a notice of appeal. For his part, the plaintiff timely filed a motion for
partial new trial to seek an increase in the monetary damages awarded. The RTC
instead rendered an amended decision further reducing the monetary awards. Is it
necessary for Atty. Sikat to file a second notice of appeal after receiving the amended
decision? (3%)
Answer:
Fresh period rule shall also apply to Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or make the appeal period uniform, to
be counted from receipt of the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final order or resolution.
The final order already finally disposed of the issues involved in the case. Special Civil
Action for Certiorari against the judge is the proper remedy of Atty Sikats client in this
case.
XIII
An heir/oppositor in a probate proceeding filed a motion to remove the administrator on
the grounds of neglect of duties as administrator and absence from the country. On his
part the heir/oppositor served written interrogatories to the administrator preparatory to
presenting the latter as a witness. The administrator objected, insisting that the modes
of discovery apply only to ordinary civil actions, not special proceedings. Rule on the
matter. (4%)
Answer:
Section 2 of Rule 73 Rules of Court provides that in the absence of special provisions
the rules provided for in ordinary actions shall be, as far as practicable, applicable in
special proceedings. When, therefore, the rules on ordinary civil actions are not
inconsistent with or when they may serve to supplement the provisions relating to
special proceedings, the former are applicable to the latter.
Thus rules regarding preparation, filing and service of applications, motions and
otherpapers are the same as in civil actions made applicable to that in special
proceedings. The provisons regarding omnibus motion, subpoena, computation of time,
motion for new trial, discovery, trial before commissioners also apply in special
proceedings.
XIV
On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which
found that Edgardo had visited his lawyer twice, the first time on August 14, 2008 and
the second on August 16, 2008; and that both visits concerned the swindling of
Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad testificandum to
Edgardos lawyer for him to testify on the conversations during their first and second
meetings. May the subpoena be quashed on the ground of privileged communication?
Explain fully. (4%)
Answer:
The usual practice that subpoenas are issued perfunctorily ex parte to compel
production of testimonial and/or documentary evidence germane to the allegations
made in a pleading (so long as they are not privileged). Nobody is sent to jail for
procuring subpoenas in aid of prosecuting or defending cases. The paramount interest
is the search for the truth. It is up to the court to determine the weight (or lack of it) of
the evidence produced thereby.
Exceptions to the privilege are:
1.When a lawyer is accused by the client and he needs to reveal information to defend
himself
2.When the client discloses the intention to commit a crime or unlawful act (Future
Crime).
For attorney-client privilege to apply, however,the period to be considered is the date
when the privileged communication was made by the client to the attorney in relation to
either a crime committed in the past or with respect to a crime intended to be committed
in the future. (if past, privilege applies; if future, does not apply) In the present case,
testimony sought to be elicited from Sansaet are communications made to him by
physical acts and/or accompanying words of Paredes at the time he and Honrada,
either with active or passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents.
For attorney-client privilege to apply, however, the period to be considered is the date
when the privileged communication was made by the client to the attorney in relation to
either a crime committed in the past or with respect to a crime intended to be committed
in the future. (if past, privilege applies; if future, does not apply) In the present case,
testimony sought to be elicited from Sansaet are communications made to him by
physical acts and/or accompanying words of Paredes at the time he and Honrada,
either with active or passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents which were later filed by Sansaet in the
Tanodbayan. Crime of falsification had not yet been committed, hence, they are not
covered by the privilege. It could also not have been covered by the privilege because
Sansaet was himself a conspirator in the commission of the crime of falsification. In
order that a communication between a lawyer and his client be privileged, it must be for
a lawful purpose or in the furtherance of a lawful end. On the contrary, Sansaet, as
lawyer, may be bound to disclose the info at once in the interest of justice. (People v.
Sandiganbayan (1997))

XV
Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and
transferring the tax declaration thereon in his name. Roscoe sold the northern half to
Bono, Salvios cousin. Upon learning of the sale, Salvio asked Roscoe to convey the
southern half to him. Roscoe refused as he even sold one-third of the southern half
along the West to Carlo. Thereupon, Salvio filed an action for the reconveyance of the
southern half against Roscoe only. Carlo was not impleaded. After filing his answer,
Roscoe sold the middle third of the southern half to Nina. Salvio did not amend the
complaint to implead Nina.
After trial, the court rendered judgment ordering Roscoe to reconvey the entire southern
half to Salvio. The judgment became final and executory. A writ of execution having
been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the southern half
and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused,
contending that they are not bound by the judgment as they are not parties to the case.
Is the contention tenable? Explain fully. (4%)
Answer:
Since they were not impleaded as parties and given the opportunity to participate in the
Reconveyance case, the final judgment in said case cannot bind the three vendees.
The effect of the said judgment cannot be extended to the three vendees by simply
issuing an alias writ of execution against them. No man shall be affected by any
proceeding to which he is a stranger, and strangers to a case are not bound by any
judgment rendered by the court. In the same manner, a writ of execution can be issued
only against a party and not against one who did not have his day in court. Only real
parties in interest in an action are bound by the judgment therein and by writs of
execution issued pursuant thereto. EMERITA MUOZ,Petitioner,- versus -SPOUSES
SAMUEL GO CHAN and AIDA C. CHAN, and THE BANK OF THE PHILIPPINE
ISLANDS,Respondents.G.R. No. 142676 G.R. No. 146718
XVI
The mutilated cadaver of a woman was discovered near a creek. Due to witnesses
attesting that he was the last person seen with the woman when she was still alive,
Carlito was arrested within five hours after the discovery of the cadaver and brought to
the police station. The crime laboratory determined that the woman had been raped.
While in police custody, Carlito broke down in the presence of an assisting counsel and
orally confessed to the investigator that he had raped and killed the woman, detailing
the acts he had performed up to his dumping of the body near the creek. He was
genuinely remorseful. During the trial, the State presented the investigator to testify on
the oral confession of Carlito. Is the oral confession admissible as evidence of guilt?
(4%)
Answer:
No. Normally a confession is only admissible against its maker, unless the defense
consents.
XVII
Ben sold a parcel of land to Del with right to repurchase within one (1) year. Ben
remained in possession of the property. When Ben failed to repurchase the same, title
was consolidated in favor of Del. Despite demand, Ben refused to vacate the land,
constraining Del to file a complaint for unlawful detainer. In his defense, Ben averred
that the case should be dismissed because Del had never been in possession of the
property. Is Ben correct? (4%)
Answer:
Ben occupied the property not in the concept of an owner for his stay was merely
tolerated by Del.
In the case of Garcia vs. Court of Appeals (G.R. No. 133140, August 10, 1999), the
court had occasion to explain the difference of Possession from Ownerhsip and
subsequently detailed out the two different kinds of Possession. Possession and
ownership are distinct legal concepts. Ownership exists when a thing pertaining to one
person is completely subjected to his will in a manner not prohibited by law and
consistent with the rights of others. Ownership confers certain rights to the owner, one
of which is the right to dispose of the thing by way of sale.
Literally, to possess means to actually and physically occupy a thing with or without
right. Possession may be had in one of two ways: possession in the concept of an
owner and possession of a holder. A possessor in the concept of an owner may be the
owner himself or one who claims to be so. On the other hand, one who possesses as a
mere holder acknowledges in another a superior right which he believes to be
ownership, whether his belief be right or wrong.
Ben acknowledges Dels superior right over the property.
XVIII
Domenico and Gen lived without benefit of marriage for twenty years, during which time
they purchased properties together. After Domenico died without a will, Gen filed a
petition for letters of administration. Domenicos siblings opposed the same on the
ground that Gen has no legal personality. Decide. (4%)
Answer:
In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if the formers efforts consisted in the
care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation like through death, therefore the
surviving party can be appointed as administrator.
XIX
After Alma had started serving her sentence for violation of Batas Pambansa Blg. 22
(BP 22), she filed a petition for writ of habeas corpus, citing Vaca vs. CA where the
sentence of imprisonment of a party found guilty of violation of BP 22 was reduced to a
fine equal to double the amount of the check involved. She prayed that her sentence be
similarly modified and that she be immediately released from detention. In the
alternative, she prayed that pending determination on whether the Vaca ruling applies to
her, she be allowed to post bail pursuant to Rule 102, Sec.14, which provides that if a
person is lawfully imprisoned or restrained on a charge of having committed an offense
not punishable by death, he may be admitted to bail in the discretion of the court.
Accordingly, the trial court allowed Alma to post bail and then ordered her release. In
your opinion, is the order of the trial court correct - Under Rule 102? (2%)
Answer:
Yes. The trial court is correct.
The Rules of Criminal Procedure provides that, all persons in custody shall be admitted
to bail as a matter of right, with sufficient sureties, or released on recognizance as
prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial court of an offense not punishable
by death, reclusion perpetua, or life imprisonment.
In the case at bar, violation of BP 22 is cognizable by the MTC where bail may be
availed as a matter of right before or after conviction. Hence, the Court is correct when
it allowed Alma to post bail even after she started to serve her sentence.
Under the Rules of Criminal Procedure? (2%)
Answer:
The writ of habeas corpus applies to all cases of illegal confinement or detention in
which individuals are deprived of liberty.[30] It was devised as a speedy and effectual
remedy to relieve persons from unlawful restraint; or, more specifically, to obtain
immediate relief for those who may have been illegally confined or imprisoned without
sufficient cause and thus deliver them from unlawful custody.[31] It is therefore a writ of
inquiry intended to test the circumstances under which a person is detained.[32]
The writ may not be availed of when the person in custody is under a judicial process or
by virtue of a valid judgment.[33] However, as a post-conviction remedy, it may be
allowed when, as a consequence of a judicial proceeding, any of the following
exceptional circumstances is attendant: (1) there has been a deprivation of a
constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction
to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding
the sentence as to such excess.
However, in this case, we find that there was no violation of the constitutional rights of
the accused and a resultant deprivation of liberty or due process of law.
any illegality attendant during the arrest is deemed cured when the accused voluntarily
submitted themselves to the jurisdiction of the court by entering their plea.
XX
A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping
tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the
maritime board inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend
it against potential claims and to sue the company owning the other vessel for damages
to the tug. Ely obtained signed statements from the survivors. He also interviewed other
persons, in some instance making memoranda. The heirs of the five (5) victims filed an
action for damages against SPS.
Plaintiffs counsel sent written interrogatories to Ely, asking whether statements of
witnesses were obtained; if written, copies were to be furnished; if oral, the exact
provisions were to be set forth in detail. Ely refused to comply, arguing that the
documents and information asked are privileged communication. Is the contention
tenable? Explain. (4%)
Answer:
The usual praxis that subpoenas are issued perfunctorily ex parte to compel production
of testimonial and/or documentary evidence germane to the allegations made in a
pleading (so long as they are not privileged). Nobody is sent to jail for procuring
subpoenas in aid of prosecuting or defending cases. The paramount interest is the
search for the truth. It is up to the court to determine the weight (or lack of it) of the
evidence produced thereby.
Exceptions to the privilege are:
1.When a lawyer is accused by the client and he needs to reveal information to defend
himself
2.When the client discloses the intention to commit a crime or unlawful act (Future
Crime).
For attorney-client privilege to apply, however,the period to be considered is the date
when the privileged communication was made by the client to the attorney in relation to
either a crime committed in the past or with respect to a crime intended to be committed
in the future. (if past, privilege applies; if future, does not apply) In the present case,
testimony sought to be elicited from Sansaet are communications made to him by
physical acts and/or accompanying words of Paredes at the time he and Honrada,
either with active or passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents.
XXI
Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that
under Rule 65 of the Rules of Civil Procedure. (4%)
Give at least three instances where the Court of Appeals may act as a trial court. (3%)
Answer:
In the case Delia R. Nerves vs CSC, Petition filed by Nerves with the Court of Appeals
substantially complied with Revised Administrative Circular 1-95. That it was
erroneously labelled as a petition for certiorari under Rule 65 of the Rules of Court is
only a minor procedural lapse, not fatal to the appeal. Although it is stated in par. 1 of
her petition it is one for certiorari filed pursuant to Article IX-A, Section 7 of the
Constitution of the Philippines, and, additionally, under Rule 65 of the Rules of Court.
The same par. 1 is explained by par. 2 which states that, But per Supreme Court
Revised Administrative Circular No. 1-95 (Revised Circular No. 1-91) petitioner is filing
the instant petition with this Honorable Court (Court of Appeals) instead of the Supreme
Court. It must be emphasized that as long as there is substantial compliance with
Revised Administrative Circular No. 1-95, the petition should be given due course.
Moreover, the circular must be so interpreted and applied as to attain, not defeat, the
ultimate purpose of all rules of procedure which is to achieve substantial justice as
expeditiously as possible.
Therefore if what Delia had in mind is the action under section 7 Article IX-A of the
Constitution, her court is the SC not the CA, a marked difference among other things.

Group Members: Angelito Gatillo

Alinogen Cuizon
Alain Paul Sumagang
Roland Alivio
Celso Afable, Jr.
Rolando Caete