SUGGESTED ANSWERS TO 2013 REMEDIAL

LAW BAR EXAM ESSAY QUESTIONS

I.

Alfie Bravo filed with the Regional Trial Court of Caloocan, a

complaint for a sum of money against Charlie Delta. The claim is for Php1.5
Million. The complaint alleges that Charlie borrowed the amount from Alfie
and duly executed a promissory note as evidence of the loan. Charlie’s office
secretary, Esther, received the summons at Charlie’s office.

Charlie failed to file an answer within the required period, and Alfie
moved to declare Charlie in default and to be allowed to present evidence ex
parte. Ten days later, Charlie filed his verified answer, raising the defense of
full payment with interest.

I(A) Was there proper and valid service of summons on Charlie?

(3%)

SUGGESTED ANSWER:

No, there was no proper and valid service of summons on Charlie.

The Supreme Court has held that there must be diligent efforts to
personally serve the summons within a reasonable time before substituted
service of summons may be availed of.

Here there was no showing of diligent efforts to serve summons

personally. Hence the service of summons was not proper and valid.

Nonetheless the court acquired jurisdiction over Charlie’s person when he

filed the answer without raising the ground of lack of personal jurisdiction. Under
Section 20 of Rule 14, a voluntary appearance, such as by filing an answer, is
equivalent to service of summons.

I(B) If declared in default, what can Charlie do to obtain relief?

(4%)

SUGGESTED ANSWER:
 If declared in default, Charlie can file a motion for reconsideration.

The Supreme Court has held that the defendant’s answer even if belatedly
filed should be admitted where it was filed before he was declared in default as
default judgments are frowned upon.

Here Charlie’s answer was filed before he was declared in default. Hence
the same should be admitted.

II.

Yvonne, a young and lonely OFW, had an intimate relationship

abroad with a friend, Percy. Although Yvonne comes home to Manila every
six months, her foreign posting still left her husband Dario lonely so that he
also engaged in his own extramarital activities. In one particularly
exhilarating session with his girlfriend, Dario died. Within 180 days from
Dario’s death, Yvonne gives birth in Manila to a baby boy. Irate relatives of
Dario contemplate criminally charging Yvonne for adultery and they hire
your law firm to handle the case.

II(A) Is the contemplated criminal action a viable option to bring?

(3%)

SUGGESTED ANSWER:

No, the contemplated criminal action is not a viable option to bring.

First. Under the Principle of Territoriality in Criminal Law, a crime

committed abroad cannot be prosecuted in the Philippines.

Here the crime of adultery was committed abroad. Hence the same
cannot be prosecuted in the Philippines and a criminal action would not be
viable.

Second. Under the Rules of Criminal Procedure, the crime of adultery

cannot be prosecuted except upon a complaint filed by the offended party.

Here the offended party, Dario, the husband of Yvonne is dead. Hence
the complaint can no longer be filed.

II(B) Is a civil action to impugn the paternity of the baby boy

feasible, and if so, in what proceeding may such issue be determined? (5%)

SUGGESTED ANSWER:
 Yes, a civil action to impugn the paternity of the baby boy is feasible. The
issue may be determined in a direct proceeding to attack the paternity or
legitimacy of the child.

Under the Family Code, the legitimacy of a child may be impugned on the
ground that it was physically impossible for the husband to have sex with his wife
within the first 120 days of the 300 days which immediately preceded the birth of
the child. The heirs of the husband may bring the action if he should die before
the expiration of the one-year period from the knowledge of the birth or the
recording of the birth in the civil register without bringing the action.

Here it was physically impossible for Dario to have sex with his wife within
the first 120 days of the 300 days which immediately preceded the birth of the
child since she was abroad. Dario also died within one year period for bringing
the action. Hence a civil action to impugn the legitimacy or filiation of the child
may be brought by the heirs. [Art. 170 in rel. to Art. 166(1), Family Code]

III.

While in his Nissan Patrol and hurrying home to Quezon City from
his work in Makati, Gary figured in a vehicular mishap along that portion of
EDSA within the City of Mandaluyong. He was bumped from behind by a
Ford Expedition SUV driven by Horace who was observed using his cellular
phone at the time of the collision. Both vehicles - more than 5 years old –
no longer carried insurance other than the compulsory third party liability
insurance. Gary suffered physical injuries while his Nissan Patrol sustained
damage in excess of Php500,000.

III(A) As counsel for Gary, describe the process you need to

undertake starting from the point of the incident if Gary would proceed
criminally against Horace, and identify the court with jurisdiction over the
case. (3%)

SUGGESTED ANSWER:

As counsel for Gary the process I would need to undertake starting from the point
of the incident would be as follows:

1. Interview Gary and the witness who observed Horace using his
cellular phone and then draft the complaint-affidavit of Gary and the affidavit of
the witness.

2. File the complaint-affidavit of Gary attaching thereto the affidavit of the

witness. I would file the complaint-affidavit with the Office of the City Prosecutor
of Mandaluyong City for preliminary examination under Section 3(a) of Rule 112.
No preliminary investigation is needed since the penalty for reckless imprudence
resulting in physical injuries does not exceed 4 years, 2 months and one day.
Nevertheless the complaint-affidavit cannot be filed directly in court but with the
city prosecutor pursuant to S1 R110.

3. The court with jurisdiction over the case would be the Metropolitan Trial
Court of Mandaluyong City. The MeTC has jurisdiction over the offense charged
since the penalty does not exceed 6 years. Venue is in Mandaluyong City as the
crime was committed therein.

III(B) If Gary chooses to file an independent civil action for

damages, explain briefly this type of action: its legal basis; the different
approaches in pursuing this type of action; the evidence you would need;
and types of defenses you could expect. (5%)

SUGGESTED ANSWER:

An independent civil action is an action to enforce the civil liability arising

from the offense charged which by provision of law is considered independent in
that it does not need reservation and it shall proceed regardless of the result of
the criminal action.

The legal basis for an independent civil action is Rule 111 and the Civil
Code provisions on independent civil actions which cover actions for physical
injuries.

Gary may take the approach of filing an independent civil action or

pursuing his claim for damages in the civil aspect of the criminal case. But he
cannot recover damages twice for the same act or omission as provided for in
the Rules of Criminal Procedure.

In either case, the quantum of evidence needed to prove Gary’s case

would be proof beyond reasonable doubt. The statements of Gary and the
witness who observed Horace use the cellphone while driving would amount to a
preponderance of evidence unless rebutted by Horace.

I could expect the defense of fortuitous cause and contributory negligence

alleging that Gary contributed to the accident as he was hurrying home.

IV.

At the Public Attorney's Office station in Taguig where you are

assigned, your work requires you to act as public defender at the local
Regional Trial Court and to handle cases involving indigents.
IV(A) In one criminal action for qualified theft where you are the
defense attorney, you learned that the woman accused has been in detention
for six months, yet she has not been to a courtroom nor seen a judge.

What remedy would you undertake to address the situation and what
forum would you use to invoke this relief? (3%)

SUGGESTED ANSWER:

The remedy I would undertake to address the situation would be to file a

motion to dismiss the information on the ground of denial of my client’s right to
speedy trial and I would invoke this in the court where the criminal case is
pending.

Under the Rules of Criminal Procedure, the accused must be arraigned

within 30 days from the time the court acquires jurisdiction over his person and
violation of this time limit will entitle the accused to move for the dismissal of the
information.

Here my client had not yet been arraigned for six months although the
court had acquired jurisdiction over her person by her arrest. Hence I could
move for the dismissal of the information on the ground of violation of the right to
a speedy trial.

The forum I would invoke would be the court where the criminal case is
pending because it is this court which has jurisdiction and control over the case.

IV(B) In another case, also for qualified theft, the detained young
domestic helper has been brought to court five times in the last six months,
but the prosecution has yet to commence the presentation of its evidence.
You find that the reason for this is the continued absence of the employer-
complainant who is working overseas.

What remedy is appropriate and before which forum would you

invoke this relief? (3%)

SUGGESTED ANSWER:

The remedy which is appropriate is to file a motion to dismiss the

information on the ground of denial of the right to a speedy trial and the forum
where I would invoke this remedy is in the court where the case is pending.

Under the Rules on Criminal Procedure, the unavailability of an essential

witness shall be excluded in computing the time within which trial must
commence. Unavailable under the Rules means that the witness’ presence for
trial cannot be obtained by due diligence.

Here there is no showing that the prosecution exerted due diligence to

obtain the presence of the employer-complainant, an essential witness. Hence
the six-month period is not excluded in computing the time within which the trial
must commence. Hence the accused’s right to a speedy trial has been denied
and thus she may move for the dismissal of the information on this ground.

IV(C) Still in another case, this time for illegal possession of

dangerous drugs, the prosecution has rested but you saw from the records
that the illegal substance allegedly involved has not been identified by any
of the prosecution witnesses nor has it been the subject of any stipulation.

Should you now proceed posthaste to the presentation of defense

evidence or consider some other remedy? Explain the remedial steps you
propose to undertake. (3%)

SUGGESTED ANSWER:

No, I would not proceed posthaste to the presentation of defense evidence

but would consider the remedy of filing a motion for leave to file a demurrer to
evidence.

Under the Rules of Criminal Procedure, after the prosecution has rested
its case, a demurrer to evidence may be availed of on the ground of insufficiency
of evidence.

Here the prosecution’s evidence is insufficient for conviction since the

illegal substance involved which is the crucial evidence has not been identified by
any of the prosecution’s witnesses nor has it been the subject of any stipulation.

The remedial steps I propose to undertake are the following:

Within 5 days from the time the prosecution has rested its case, I would
file a motion for leave to file demurrer to evidence. I would obtain leave first
since if a demurrer is filed without leave and denied, the accused is deemed to
have waived the presentation of his evidence.

If leave is granted, I will file the demurrer within ten days from notice of the
order granting leave. If leave is denied, that is the time I will present defense
evidence.

IV(D) In one other case, an indigent mother seeks assistance for her
14-year old son who has been arrested and detained for malicious mischief.

Would an application for bail be the appropriate remedy or is there

another remedy available? Justify your chosen remedy and outline the
appropriate steps to take. (3%)

SUGGESTED ANSWER:

An application for bail is not the appropriate remedy.

Under the Juvenile Justice and Welfare Act, a child below 15 is below the
age of criminal responsibility and should not be detained by a court.

Hence the 14-year-old should not have been detained in the first place
and thus bail would not have been appropriate.

The appropriate remedy is a petition for the issuance of a writ of habeas

corpus if the detention of the 14-year-old is not by virtue of a court order or
process.

Under the Rules on Special Proceedings, the writ of habeas corpus is

available in cases of illegal detention of a person.

Here the 14-year-old has been illegally detained because he is below the
age of criminal responsibility. Hence the writ of habeas corpus would be proper.

I would draft a verified petition for habeas corpus to be signed by the

mother and I would file it with any Regional Trial Court in the National Capital
Judicial Region, the region where the writ is sought to be enforced.

If the 14-year-old is detained by virtue of a court order or process, the

appropriate remedy would be a motion with the court for the release of the 14-
year-old in line with the Juvenile Justice and Welfare Act. The motion should be
set for hearing and with notice to the prosecutor. In the hearing of the motion, I
would argue that a child below the age of criminal responsibility cannot be
detained by a court pursuant to the Juvenile Justice and Welfare Act.

V.

The spouses Juan reside in Quezon City. With their lottery winnings,
they purchased a parcel of land in Tagaytay City for P100,000.00. In a
recent trip to their Tagaytay property, they were surprised to see hastily
assembled shelters of light materials occupied by several families of
informal settlers who were not there when they last visited the property three
(3) months ago.
To rid the spouses’ Tagaytay property of these informal settlers,
briefly discuss the legal remedy you, as their counsel, would use; the steps
you would take; the court where you would file your remedy if the need
arises; and the reason/s for your actions. (7%)

SUGGESTED ANSWER:

I would avail of the legal remedy of the special civil action for forcible entry
in order to rid the spouses’ property of the informal settlers.

Under the Rules of Civil Procedure, the special civil action for forcible
entry is available where the plaintiff had been dispossessed of his property
through stealth.

Here the informal settlers had taken possession of the property through
stealth by entering into the same when the spouses were not in the property and
without their knowledge and consent.

The steps I would take are the following:

I would immediately file in behalf of my client a verified complaint for

forcible entry with the Municipal Trial Court of Tagaytay. Prior demand is not
necessary in forcible entry. Jurisdiction is with the MTC pursuant to B.P. Blg.
129 and the venue is in Tagaytay since forcible entry is a real action.

I would file the action within one year from the discovery of the
dispossession through stealth.

I would include in the complaint an application for preliminary mandatory

injunction. Thus my client can go directly to court without undergoing barangay
conciliation.

VI.

While leisurely walking along the street near her house in Marikina,
Patty unknowingly stepped on a garden tool left behind by CCC, a
construction company based in Makati. She lost her balance as a
consequence and fell into an open manhole. Fortunately, Patty suffered no
major injuries except for contusions, bruises and scratches that did not
require any hospitalization. However, she lost self-esteem, suffered
embarrassment and ridicule, and had bouts of anxiety and bad dreams about
the accident. She wants vindication for her uncalled for experience and hires
you to act as counsel for her and to do whatever is necessary to recover at
least Php100,000 for what she suffered.
What action or actions may Patty pursue, against whom, where (court
and venue), and under what legal basis? (7%)

SUGGESTED ANSWER:

Patty may pursue an action for quasi-delict against CCC before the MeTC
of either Marikina or Makati.

Under the Civil Code provisions on Torts, an employer is subsidiarily liable

for the negligent acts of its employees. Here the garden tool was negligently left
behind on a street by CCC which was a negligent act since people could walk
and trip over it.

Patty may claim for moral damages for the embarrassment, loss of self-
esteem, etc. since moral damages may be claimed in an action for quasi-delict.

Since the amount claimed is only P100,000 it is the MeTC which has
jurisdiction. An action for quasi-delict is a personal action and thus venue lies
with the residence of either the plaintiff (Marikina) or the defendant (Makati).

VII.

You are the defense counsel of Angela Bituin who has been charged
under RA 3019 (Anti-Graft and Corrupt Practices Act) before the
Sandiganbayan. While Angela has posted bail, she has yet to be arraigned.
Angela revealed to you that she has not been investigated for any offense
and that it was only when police officers showed up at her residence with a
warrant of arrest that she learned of the pending case against her. She
wonders why she has been charged before the Sandiganbayan when she is
not in government service.

VII(A) What “before-trial” remedy would you invoke in Angela’s

behalf to address the fact that she had not been investigated at all, and how
would you avail of this remedy? (4%)

SUGGESTED ANSWER:

The “before-trial” remedy I would invoke in Angela’s behalf is to file a

motion to remand the case to the investigating prosecutor for preliminary
investigation.
The Supreme Court has held that the remedy of an accused if there is
absence or lack of preliminary investigation is not a motion to quash but a motion
to remand the case for preliminary investigation.
I will also study the information and file a motion to quash if there is no
allegation that Angela acted as a co-principal, an accomplice, or an accessory to
an office-related crime committed by a public official.
VII(B) What “during-trial” remedy can you use to allow an early
evaluation of the prosecution evidence without the need of presenting
defense evidence; when and how can you avail of this remedy? (4%)

SUGGESTED ANSWER:

The “during-trial” remedy that I can use to allow an early evaluation of the
prosecution evidence without the presentation of defense evidence is a demurrer
to evidence on the ground of insufficiency of evidence.
I can avail of this remedy by filing a motion for leave to file demurrer to
evidence within 5 days after the prosecution rests its case and which motion for
leave shall specifically state its grounds. While I can file the demurrer to
evidence without leave of court, such would be risky since if the demurrer is
denied I would be deemed to have waived the presentation of evidence and to
submit the case for judgment based on the prosecution’s evidence alone.

VIII.

On his way to the PNP Academy in Silang, Cavite on board a public

transport bus as a passenger, Police Inspector Masigasig of the Valenzuela
Police witnessed an on-going armed robbery while the bus was traversing
Makati. His alertness and training enabled him to foil the robbery and to
subdue the malefactor. He disarmed the felon and while frisking him,
discovered another handgun tucked in his waist. He seized both handguns
and the malefactor was later charged with the separate crimes of robbery and
illegal possession of firearm.

VIII(A) Where should Police Inspector Masigasig bring the felon for
criminal processing? To Silang, Cavite where he is bound; to Makati where
the bus actually was when the felonies took place; or back to Valenzuela
where he is stationed? Which court has jurisdiction over the criminal cases?
(3%)

SUGGESTED ANSWER:

Police Inspector Masigasis should bring the felon to Makati for criminal
processing.

Under the Rule on Criminal Procedure, in case of a warrantless arrest the

person arrested shall forthwith be delivered to the nearest police station or jail.
Hence Police Inspector Masigasig should bring the felon to the nearest police
station or jail in Makati for criminal processing.
 The court which has jurisdiction over the criminal cases is the court of any
place where the vehicle or bus passed including the place of departure and
arrival.

The penalty for armed robbery and illegal possession of firearms exceeds
6 years’ imprisonment and the bus passed through Makati and arrived in Silang,
Cavite. Hence the RTC of either Makati or Silang would have jurisdiction over
the criminal cases.

VIII(B) May the charges of robbery and illegal possession of firearm

be filed directly by the investigating prosecutor with the appropriate court
without a preliminary investigation? (4%)

SUGGESTED ANSWER:

Yes the charges of robbery and illegal possession of firearms may be

filed directly with the appropriate court without undergoing a preliminary
investigation.

Under the Rules of Criminal Procedure, in case of a warrantless arrest the

information may be filed in court without conducting a preliminary investigation.

Here there was a warrantless arrest since the accused was arrested while
committing the crimes. Hence the charges may be directly filed in court. [S6
R112]

IX.

For over a year, Nenita had been estranged from her husband Walter
because of the latter’s suspicion that she was having an affair with Vladimir,
a barangay kagawad who lived in nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day, the house of Nenita’s sister
inexplicably burned almost to the ground. Nenita and her sister were caught
inside the house but Nenita survived as she fled in time, while her sister tried
to save belongings and was caught inside when the house collapsed.

As she was running away from the burning house, Nenita was
surprised to see her husband also running away from the scene. Dr. Carlos,
Walter’s psychiatrist who lived near the burned house and whom Walter
medically consulted after the fire, also saw Walter in the vicinity some
minutes before the fire. Coincidentally, Fr. Platino, the parish priest who
regularly hears Walter’s confession and who heard it after the fire, also
encountered him not too far away from the burned house.

Walter was charged with arson and at his trial, the prosecution moved
to introduce the testimonies of Nenita, the doctor and the priest-confessor,
who all saw Walter at the vicinity of the fire at about the time of the fire.

IX(A) May the testimony of Nenita be allowed over the objection of

Walter? (3%)

SUGGESTED ANSWER:

Yes the testimony of Nenita may be allowed over the objection of Walter.

Under the Rules of Evidence, an exception to the marital disqualification

rule is in a criminal case committed by one spouse against the other.

Here the criminal case was for arson committed by Walter against Nenita
and her sister. Hence Nenita’s testimony is admissible over the objection that
the same is violative of the marital disqualification rule. The fact that Nenita has
been estranged from her husband Walter for over a year is of no consequence
since Nenita and Walter are still married to each other.

IX(B) May the testimony of Dr. Carlos, Walter’s psychiatrist, be

allowed over Walter’s objection? (3%)

SUGGESTED ANSWER:

Yes the testimony of Dr. Carlos may be allowed over Walter’s objection.

Under the Rules of Evidence, the physician-patient privilege applies only

to civil cases.

Here the testimony is being offered in a criminal case for arson. Hence
Dr. Carlos’ testimony may be allowed over Walter’s objection.

IX(C) May the testimony of Fr. Platino, the priest-confessor, be

allowed over Walter’s objection? (3%)

SUGGESTED ANSWER:

Fr. Platino’s testimony that he encountered Walter not too far away from
the burned house may be allowed over Walter’s objection.

Under the Rules of Evidence, the priest-penitent privilege applies only to a

confession made to or advice given by the priest in his professional character.
Evidently Fr. Platino was not hearing any confession when he encountered
Walter.
 Fr. Platino however may not testify regarding Walter’s confession over his
objection that the same is covered by the priest-penitent privilege.

Under the Rules of Evidence, a confession made by a penitent to a priest

is privileged and may not be testified to by the priest without the consent of the
penitent.

X.

As a new lawyer, Attorney Novato limited his practice to small claims

cases, legal counseling and the notarization of documents. He put up a solo
practice law office and was assisted by his wife who served as his
secretary/helper. He used a makeshift hut in a vacant lot near the local courts
and a local transport regulatory agency. With this practice and location, he
did not have big-time clients but enjoyed heavy patronage assisting walk-in
clients.

X(A) What role can Attorney Novato play in small claims cases when
lawyers are not allowed to appear as counsel in these cases? (3%)

SUGGESTED ANSWER:

The role that Attorney Novato can play in a small claims case is to advise
a party on the relevant law and on the evidence he needs to present to prove his
case. He can also after draft the pleadings or papers for a party or review the
pleadings or papers a party will file.

X(B) What legal remedy, if any, may Attorney Novato pursue for a
client who loses in a small claims case and before which tribunal or court
may this be pursued? (4%)

SUGGESTED ANSWER:

The remedy that Attorney Novato may pursue for a client who loses in a
smalls claims case is to file a special civil action for certiorari with the RTC.

Under the Rules on Small Claims Cases, the decision therein is final and
unappealable. Under the Rules of Civil Procedure, the special civil action for
certiorari is proper in cases where there is no appeal or any other plain, speedy,
or adequate remedy.

Hence Attorney Novato may pursue the remedy of a special civil action for
certiorari if the decision or judgment was rendered with grave abuse of discretion
amounting to lack of or excess of jurisdiction. [A.L. Ang Network, Inc. v Mondejar,
22 January 2014].
-oOo-