THE TOP BARRISTERS’ NOTES

POSSIBLE QUESTIONS

1. What is the meaning of ‘s.s.’ in any duly notarized Affidavit?

Scilicet. It is a Latin term for ‘namely, to wit or in particular’. This is found in the
upper left-hand portion of any notarized documents which is allocated to signify
the venue or jurisdiction where the act of notarization is done between the affiant
and attorney. Note that ‘s.s.’ may be left out or deleted but its absence will not
invalidate the notarized affidavit as a public instrument.

2. What is ‘jurat’?

A jurat is where the lawyer certifies that the document was "sworn" before him
personally by the affiant in order to attest to the content of the affidavit or
pleadings in court. It is a certification on an affidavit declaring when, where and
before whom it was sworn. It is usually executed under penalty of perjury or lying
under oath. Moreover, jurat notarizations do not prove the truth, validity, legality
or enforceability of the document thus executed. Only the courts can.

3. Distinguish ‘jurat’ and ‘acknowledgment’.

A jurat is used when the signer is swearing to the content of the document. The
notary must administer an oath or affirmation to the signer in order to complete
the jurat. A jurat also requires that the signer signs in the presence of the notary.
It is possible to glean this information from the jurat certificate itself. The wording
states “Subscribed and sworn to before me…” – subscribed meaning “signed”
and sworn meaning that an oral oath or affirmation was given. “Before me”
means that both were done in the presence of the notary public.

On the other hand, an acknowledgement is used to verify the identity of the

affiant and to confirm that he indeed signed the document in the presence of the
notary public.

4. What is an affidavit?

An affidavit is a written statement filed by an affiant as evidence in court. In order

to be admissible, affidavits must be notarized by a notary public. Once the affiant
acknowledges signing the document for its intended purpose and signs the
affidavit, the document is notarized and becomes a sworn affidavit.

5. May a notary public be disbarred for signing an affidavit without the affiant’s
personal appearance?
 Yes. The Notarial Law states that “[a] notary public is duty bound to require the
person executing a document to be personally present, to swear before him that
he is that person and ask the latter if he has voluntarily and freely executed the
same.” Any breach thereof may be alleged and proved by the complainant. The
lawyer being charged of Falsification of Public Document by a Notary Public
however still enjoys the presumption of innocence until the contrary is proved,
and that he regularly performed his duty as an officer of the Court in accordance
with his oath.

The act of notarizing the document without the presence of the affiant is
prohibited by the 2004 Rules on Notarial Practice which provides:

Section 2 (b), Rule IV. Powers and Limitations of Notaries Public

“A person shall not perform a notarial act if the person involved as signatory to
the instrument or document -
(1) is not in the notary's presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the
notary public or otherwise identified by the notary public through competent
evidence of identity as defined by these Rules.

6. Who may practice law?

According to Section 1, Rule 141 of the Rules of Court, any person heretofore
duly admitted as a member of the bar, or hereafter admitted as such in
accordance with the provisions of this rule, and who is in good and regular
standing, is entitled to practice law.

Section 2, thereof, also prescribes certain requirements for all applicants for
admission to the bar: That every applicant for admission as a member of the bar
must be a citizen of the Philippines, at least twenty-one years of age, of good
moral character, and resident of the Philippines; and must produce before the
Supreme Court satisfactory evidence of good moral character, and that no
charges against him, involving moral turpitude, have been filed or are pending in
any court in the Philippines.

Furthermore, Section 5 provides additional requirements for other applicants, to

wit: all applicants for admission other than those referred to in the two preceding
section shall, before being admitted to the examination, satisfactorily show that
they have regularly studied law for four years, and successfully completed all
prescribed courses, in a law school or university, officially approved and
recognized by the CHED. The affidavit of the candidate, accompanied by a
certificate from the university or school of law, shall be filed as evidence of such
facts, and further evidence may be required by the court.
 No applicant shall be admitted to the bar examinations unless he has
satisfactorily completed the following courses in a law school or university duly
recognized by the government: civil law, commercial law, remedial law, criminal
law, public and private international law, political law, labor and social legislation,
medical jurisprudence, taxation and legal ethics.

7. What is the definition of law?

Law is a binding custom or practice of a community: a rule of conduct or action

prescribed or formally recognized as binding or enforced by authorities for the
common observance of all. Laws protect our general safety, and ensure our
rights as citizens against abuses by other people, by organizations, and by the
government itself.

8. What is the ‘practice of law’? Cite jurisprudence.

Supreme Court is constitutionally mandated under Section 5 (5), Article VIII to

promulgate rules on the practice of law and admission to the bar. In this regard,
Rule 138 of the Rules of Court states that only Filipino citizens may be admitted
to the Philippine bar and therefore “practice law.” The celebrated case of
Cayetano v. Monsod provided for a liberal definition of the practice of law. A
portion of the decision states:

“… any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. ‘To engage in the practice of law
is to perform those acts which are characteristics of the profession. Generally, to
practice law is to give notice or render any kind of service, which device or
service requires the use in any degree of legal knowledge or skill.”

9. What are the salient facts, issues and ruling of the Court in Tanada vs Tuvera
case with regard to the effectivity of laws in the Philippines?

Hereunder provided are the antecedent facts of the case:

Petitioners Lorenzo M. Tanada, et. al. invoked due process in demanding the
disclosure of a number of Presidential Decrees which they claimed had not been
published as required by Law. The government argued that while publication was
necessary as a rule, it was not so when it was otherwise provided, as when the
decrees themselves declared that they were to become effective immediately
upon approval. The court decided on April 24, 1985 in affirming the necessity for
publication of some of the decrees. The court ordered the respondents to publish
in the official gazette all unpublished Presidential Issuances which are of general
force and effect. The petitioners suggest that there should be no distinction
between laws of general applicability and those which are not. The publication
means complete publication, and that publication must be made in the official
gazette. In a comment required by the solicitor general, he claimed first that the
 motion was a request for an advisory opinion and therefore be dismissed. And on
the clause “unless otherwise provided” in Article 2 of the new civil code meant
that the publication required therein was not always imperative, that the
publication when necessary, did not have to be made in the official gazette.

The salient issues are the following:

(1) Whether or not all laws shall be published in the official gazette.

(2) Whether or not publication in the official gazette must be in full.

Based of the foregoing, the Court held that (1) all statutes including those of
local application shall be published as condition for their effectivity, which shall
begin 15 days after publication unless a different effectivity date is fixed by the
legislature and (2) that the publication must be full or no publication at all since its
purpose is to inform the public of the content of the laws. Otherwise, the public
will not be constructively notified of the existence of such laws and it will violate a
person’s right to due process if he is penalized for violating thereof, given the
provision of Article 3 of the New Civil Code that ignorance of the law excuses no
one from compliance therewith – ignorantia legis non excusat.

10. In the case of Farinas vs Executve Secretary, the Court ruled that equal
protection of the law under Section 1, Article III of the 1987 Constitution was not
violated since there is a valid distinction or classification between the elective and
appointive officials seeking elections. What are the basic facts of the case and
how did the Supreme Court rule on the petition?

In said case, a petition was filed seeking the Court to declare unconstitutional
Section 14 of RA 9006 or “The Act to Enhance the Holding of Free, Orderly,
Honest, Peaceful and Credible Elections Through Fair Election Practices” as it
repealed Section 67 of the Omnibus Election Code mandating the ipso facto
resignation from public office of one who filed his certificate of candidacy, except
for President and Vice-President. It is the petitioners’ contention that the repeal of
Section 67 is a rider on the said law, the same embracing more than one subject,
inconsistent to what the constitution mandates. Further, it violated the equal
protection clause since the said law didn’t repeal provision relating to appointive
officials. Appointive officials would still be considered ipso jure resigned upon
filing of their respective certificates of candidacy.

Ruling of the Court

Section 14 is not a rider. The purported dissimilarity of Section 67 of the Omnibus

Election Code, which imposes a limitation on elective officials who run for an
office other than the one they are holding, to the other provisions of the contested
law, which deal with the lifting of the ban on the use of media for election
propaganda, doesn’t violate the “one subject- one title rule”. The Court has held
 that an act having a single general subject, indicated in its title, may contain any
number of provisions, no matter how diverse they may be, so long as they are
not inconsistent with or foreign to the general subject, and they may be
considered in furtherance of such subject by providing for the method and means
of carrying out the general subject.

The repeal of Section 67 is not violative of the equal protection clause. Equal
protection is not absolute especially if the classification is reasonable. There is
reasonable classification between an elective official and an appointive one. The
former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority. Another
substantial distinction is that by law, appointed officials are prohibited from
engaging in partisan political activity or take part in any election except to vote.

11. May an invalid effectivity clause of a statute invalidate the entirety of the law?

No. It does not invalidate the whole statute because Congress has the sole
discretion to shorten the date of effectivity provided the indispensable
requirement of publication under Article 2 of the Civil Code, as enunciated in the
case of Tanada vs Tuvera, is substantially met.

CASES

Gonzalez vs Gonzalez (1933)

Note: The old Civil Code (1879) is applicable in the case since the marriage and/or
other incidents thereto were contracted before the revision of the Civil Code in 1930.

Facts:

Defendant appealed the decision of CFI-Manila granting relief sought by ex-wife for the
dissolution of marriage and child support plus alimony as stipulated in the divorce
decree issued by the court in Nevada.

Issue: Whether or not the absolute divorce obtained in Nevada is valid in the
Philippines.

Ruling:
No. The Philippines has primary jurisdiction over divorce matters. It cannot recognize
the validity of a divorce obtained abroad for reason of public policy.

Article 9 of the Civil Code provides that even though residing in a foreign country, the
laws relating to family rights and duties, or to the status, condition and legal capacity or
persons are binding.

Furthermore, under Article 11 thereof, prohibitive laws concerning persons, their acts
and their property, and those intended to promote public order and good morals, shall
not be rendered without effect by any foreign laws or judgments, or by anything done or
any agreements entered into a foreign country.

Both parties in the given case are citizens of the Philippine Islands. Thus being married
here, the CFI has jurisdiction over applications for the dissolution of matrimonial bond.
The defendant’s temporary residence in Nevada, USA does not give rise to a right or
standing to file for divorce in its court. And neither can the absolute divorce decree
thereby granted be considered valid in our local jurisdiction as it is prohibited by Article
11 of the Civil Code of the Philippines.

Therefore, reversal to CFI’s grant of relief is justified.

Possible Questions:

1. What are the antecedent facts of the case?

Defendant husband filed for an absolute divorce in the State of Nevada (USA)
and returned home thereafter. The ex-wife then filed for a civil action seeking to
nullify their marriage based on the divorce decree issued by a foreign court.
Meanwhile, the four minor children thru guardian ad litem (someone appointed to
act in a lawsuit due to the party’s minority) intervened for purposes of enforcing
child support.

The Court of First Instance ruled in their favor. Defendant, however, sought
reversal of the inferior court’s decision, hence the case was elevated to the
Supreme Court.

2. What is the main issue in the given case?

The validity of the absolute divorce decree, if and when obtained in a foreign
country.

3. What was the legal bases of the Court to reverse the CFI decision?

Articles 9 & 11 of the (old) Civil Code of the Philippines. The Court ruled that
one’s original domicile – not temporary residency in a foreign country – is a
binding legal justification to retain a person’s family rights and duties, or to the
 status, condition and his legal capacity. The Philippine court thus have jurisdiction
to resolve any petition for the absolute dissolution of marriage. Any decree
purporting to nullify the matrimonial bond originally forged here in the country, if
secured from and granted by a foreign court, is therefore not valid. This,
however, does not excuse the defendant to provide support to his minor children
in accordance with the prior agreement entered into for the purpose.

4. What is the principle of lex loci celebrationis?

This is a Latin phrase for “the law of the place where marriage was contracted”.
In the above-cited case, the original marriage was celebrated here in the
Philippines. Thus, our marital law on dissolution of marriage applies, not any
foreign country, even if one of the parties established residence therein.

Likewise, under Article 15 of the New Civil Code (RA 386), regardless of where a
Philippine citizen is, he/she will be governed by Philippine laws with respect to
his/her family rights and duties, status, condition and legal capacity. Therefore,
nationality rule follows wherever one goes.

5. Is there any exception to obtaining an absolute divorce under our Philippine law?

Yes. Article 26 of the Family Code. This provision recognizes any absolute
divorce if obtained by the alien spouse of a Philippine citizen. Otherwise, if the
Filipino spouse marries again, the Filipino spouse is liable for adultery (wife) or
concubinage (husband).

Victor Que vs People of the Philippines & Intermediate Appellate Court

(1987)

Facts:

Appellant issued a check as a guarantee for payment of supplies he procured

from plaintiff. Due to insufficient funds, the check he issued bounced. Plaintiff
thus filed a civil action for the recovery of the sum of money before the RTC of
Quezon City which convicted him for the crime of violating BP No. 22 or the anti-
bouncing checks law. On appeal before the Court of Appeals (CA), the lower
court’s decision was affirmed. Appellant then filed a Petition for Review on
Certiorari before the Supreme Court which likewise sustained the CA’s earlier
resolution of the case. Not satisfied, Appellant filed a Motion for Reconsideration
(MR) of the Minute Resolution issued by the SC denying the main Petition for
Review on Certiorari.
 Issue: Whether the RTC and CA decisions and the denial of MR by the SC are in
accordance with law and evidence?

Ruling:

The Appellant’s MR is without merit. First, the RTC has jurisdiction over the case,
since the issuance of the check was in Quezon City as he himself inferentially
admitted in his testimony. Second, the legislative intent to sanction the issuance
of checks without sufficient funds, regardless of purpose, is to hold the issuer
accountable as a matter of public policy. And third, the Minute Resolution which
stated no reason for the denial of the MR depends upon the sound discretion of
the Court. After all, appeal is not a constitutional right but merely a statutory
privilege.

Possible Questions:

1. What is ratio legis?

It is the reason for the enactment of the law. In the given case, BP No. 22 was
passed by the legislature to proscribe the act of issuing a worthless check. In the
originally approved bill (Journal), the issuance of a check as guarantee ‘only’ for
future payment may be a valid defense. However, the enrolled version of the bill
which was signed into law (Final Version) deleted such qualifying proviso, hence
the final approved measure prevails over the records of the proceedings. (Note:
This part of lawmaking was discussed by Gov. Edgar Lara yesterday)

2. Is appeal a constitutional right?

No. It is only a statutory privilege. Thus the remedy falls within the sound
discretion of the appellate court whether to grant due course to the appeal or not.
Section 2, Rule 41 of the Rules of Court provides for the different modes of
appeal, to wit:

a. Ordinary Appeal – to CA
b. Petition for Review – to CA
c. Appeal by Certiorari – to SC, in all cases where only questions of law are
raised or involved by way of a Petition for Review on Certiorari under Rule 45.

3. Is the issuance of a bouncing check a malum prohibitum or malum in se?

Violation of BP No. 22 is a crime malum prohibitum simply because it is

prohibited by law. Even if a crime is wrong or evil in and of itself ( malum in se), it
is not a crime unless there is a law that prohibits its commission. (Note: nullum
crimen nulla poene sine lege)

4. Distinguish jurisdiction and venue?

 ‘Jurisdiction’ refers to the power or authority given by law to a court or tribunal to
hear and determine actual legal controversies involving rights which are
demandable and enforceable. Jurisdiction is granted by law or by the
Constitution and cannot be waived or stipulated. ‘Venue’, on the other hand,
refers to the particular geographical area in which a court with jurisdiction may
hear or decide a case. Procedurally, venue may be waived in civil cases but it
may be transferred only upon the permission of the SC in criminal cases.

Arsenio T. Mendiola vs CA, NLRC, Pacific Forest Resources, Phil., Inc.

and/or CELLMARK AB (2006)

Facts:

Pacfor is a California-based corporation and a subsidiary company of Sweden-

based Cellmark. It established a resident office in the Philippines for its paper
product operations with Petitioner as representative. In the course of time,
Arsenio T. Mendiola asked for his shares in the equity of the business, payment
of unpaid commissions and furniture and equipment rentals to which Pacfor
denied. Petioner claimed that he is a partner in the business entitled to such
share. In response, Pacfor ordered for the turn-over of assets, including the
company car allocated to the Petitioner, and demanded the latter to show cause
why he should not be meted with disciplinary action. Subsequently, their
business relationship turned sour, thus Petitioner filed action before the Labor
Arbiter (LA). LA ruled in favor of the Petitioner stating that there was constructive
dismissal.

On appeal by Pacfor before the NLRC, the labor arbiter’s decision was set aside
for lack of jurisdiction and lack of merit. The NLRC in fact argued that Petitioner
is a co-owner and not an employee of Pacfor. The CA for its part affirmed the
ruling of the NLRC and likewise denied the Petitioner’s MR, hence the instant
appeal before the Supreme Court.

Issues:

1. Whether or not an employer-employee exists between Petitioner and private

respondent Pacfor; and,

2. Whether or not Petitioner was constructively dismissed from employment.

Ruling:

Petitioner is an employee of Pacfor and no partnership or co-ownership exists between

the parties. Petitioner is merely an employee due to the following elements:

a. The selection and engagement of the employee;

 b. Payment of wages;
c. Power of dismissal by Pacfor;
d. The employer’s power to control the employees conduct.

These elements are present in the case. First, Petitioner was chosen by Pacfor as
resident representative in its operations here in the Philippines. Second, Petitioner
regularly received his salary and other commissions. Third, in view of the letters
purporting to command Petitioner to show cause, and the communications by Pacfor to
client companies not to deal with Petitioner, it demonstrates the power of an employer to
dismiss its employee. And fourth, by these characterizations, the employer’s power of
control is evident. Therefore, Petitioner is not a partner. Otherwise, he should have
exercised management prerogatives and share in the equity of the business.

Furthermore, Petitioner was constructively dismissed by Pacfor. By undue harassments

against Petitioner, the latter’s position is rendered untenable to effectively discharge his
function as resident representative of Pacfor in the country.
The decisions of NLRC and CA are thus annulled and set aside while that of the Labor
Arbiter is reinstated and modified with respect to the grant of separation pay.

Possible Questions:

1. What is the essential element of partnership as discussed in the ruling of the

case?

Community of interest, or co-ownership of, or joint interest in partnership

property. None of these features exist in the given case and sharing of profit
derived out of the local operations does not make a partnership, hence the ruling
of the Court that the Petitioner is merely an employee of the California-based
paper product company.

2. What are the core issues in the given case?

First, whether there exists an employer-employee relationship between Petitioner

and private Respondent, and not a joint-venture partnership as claimed by
Petitioner; and,
Second, whether Petitioner was constructively dismissed as an employee, thus
entitles the latter of separation pay.

3. Is management prerogative absolute?

No, it is not absolute. Such prerogative must not be used as a tool to circumvent
our laws and oppress employees. Accordingly, it must be exercised in good faith
and with due regard to the rights of labor with the principles of fair play and
justice.