1. Q: Ernie filed a petition for guardianship over the person and properties of his father, Ernesto.

Upon receipt of the notice of hearing, Ernesto filed an opposition to the petition. Ernie, before
the hearing of the petition, filed a motion to order Ernesto to submit himself for mental and
physical examination which the court granted. After Ernie's lawyer completed the
presentation of evidence in support of the petition and the court's ruling on the formal offer of
evidence, Ernesto's lawyer filed a demurrer to evidence. Ernie's lawyer objected on the
ground that a demurrer to evidence is not proper in a special proceeding. Was Ernie's
counsel's objection proper? (2015 BAR)

A: NO. Under the Rule on Special Proceedings, in the absence of special provisions, the rules provided for in
ordinary actions, shall be, as far as practicable, applicable in special proceedings. Here, there are no special
provisions on demurrer to evidence in the rules on guardianship. Hence, the provisions on demurrer to
evidence in ordinary actions are applicable to special proceedings. Such application is practicable since it
would be a waste of time to continue hearing the case if upon the facts and the law, guardianship would not
be proper.

2. Q: The probate court ordered the inclusion of a parcel of land registered in the name of
Richard in the inventory of the properties of the deceased Anna. Richard opposed the
inclusion arguing that the probate court cannot determine the issue of the ownership of the
parcel of land inasmuch as the same was registered in his name. Is Richard correct?

A: YES. In probate proceedings, if a property covered by Torrens title is involved, the presumptive
conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to
the contrary, the holder thereof should be considered as the owner of the property in controversy until his
title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar,
possession of the property itself is in the persons named in the title. (Luy Lim v. CA, G.R. No. 124715, January
24, 2000)

3. Q: Pinoy died without a will. His wife, Rosie, and three children executed a deed of
extrajudicial settlement of his estate. The deed was properly published and registered with
the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the
illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived
of her rightful share in the estate. Rosie and the Three Children contended that (1) the
publication of the deed constituted constructive notice to the whole world and should
therefore bind Suzy; and (2) Suzy’s action had already prescribed. Are Rosie and the Three
Children Correct? Explain. (2009 BAR)

A: NO. Suzy can file a complaint to annul the extrajudicial settlement and she can recover what is due her as
such heir if her status as an illegitimate child of the deceased has been established. The publication of the
settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in
it because the same was notice after the fact of execution. The requirement of publication is intended for the
protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s
estate. She can file the action therefor within 4 years after the settlement was registered.

4. Q: May an order denying probate of will be overturned after period to appeal has lapsed?
Why? (2002 BAR)

A: YES. A petition for relief may be filed on the grounds of fraud, accident, mistake or excusable negligence
within a period of 60 days after the petitioner learns of the judgment or final order and not more than 6
months after such judgment or final order was entered. (Secs. 1&3, Rule 38) An action for annulment may also
be filed on the ground of extrinsic fraud within four (4) years from its discovery, and if based on lack of
jurisdiction, before it is barred by laches or estoppels. (Secs. 2&3, Rule 47)
 5. Q: Johnny, a naturalized citizen of the USA but formerly a Filipino citizen, executed a notarial
will in accordance with the laws of the State of California, USA. Johnny, at the time of his death,
was survived by his niece Anastacia, an American citizen residing at the condominium unit of
Johnny located at Fort Bonifacio, Taguig City; a younger brother, Bartolome, who manages
Johnny’s fish pond in Lingayen, Pangasinan; and a younger sister, Christina, who manages
Johnny’s rental condominium units in Makati City. Johnny’s entire estate which he inherited
from his parents is valued at P200 million. Johnny appointed Anastacia as executrix of his will.
Can Johnny’s notarial will be probated before the proper court in the Philippines? (2014 BAR)

A: YES. Johnny’s notarial will can be probated before the proper court in the Philippines. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad
produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the
place where he resides, or according to the formalities observed in his country. (Palaganas v. Palaganas, G.R.
No. 169144, January 26, 2011).

6. Q: Domencio and Gen lived without benefit of marriage for 20 years, during which time they
purchased properties together. After Domencio died without a will, Gen filed a petition for
letters of administration. Domencio’s siblings opposed the same on the ground that Gen has
no legal personality. Decide. (2008 BAR)

A: A petition for letters of administration may be filed by any “interested person”. (Sec. 2, Rule 79) Gen would
be considered an interested person if she was not married to Domenico, because she can claim co-ownership
of the properties left by him under their property regime of a union without marriage under conditions
provided in the Family Code. (Arts. 147-148, Family Code; San Luis v. San Luis, G.R. No. 133743, February 6,
2007)

7. Q: May the probate court order the forfeiture of the administrator’s bond?

A: YES. The execution or forfeiture of an administrator’s bond is deemed to be necessary and an incident of
administration proceedings, as much as its filing and the fixing of its amount. Therefore, the probate court
may have the bond executed in the same proceedings. (Phil. Trust Co. v. Luzon Surety Co., G.R. No. L- 13031,
May 30, 1961)

8. Q: A borrowed from B a sum of money in the year 1990 as evidenced by a written contract of
loan. A died in 2001. During the probate proceedings of A, the court ordered that all claims
against the estate must be filed from June 2001 to January 2002. When B filed his claim on July
2001, the court granted the same. Is the allowance of the claim correct?

A: NO. The period to collect has already prescribed. When A died in 2001, the prescriptive period of 10 years
from the time A borrowed money from B in 1990 has already lapsed. Thus, even if the claim was filed within
the statute of non-claims, the statute of limitations has already barred the filing of the claim.

9. Q: The trial court admitted to probate the holographic will of Alice and thereafter issued an
order for all the creditors to file their respective claims against the estate. Alan filed a
contingent claim for agent's commission due him in the event of the sale of certain parcels of
land belonging to the estate and reimbursement for expenses incurred. The executrix of the
estate moved for the dismissal of said money claim against the estate on the grounds that Alan
failed to attach a certification against non-forum shopping. The trial court dismissed the case.
Is the trial court correct?

A: NO. A money claim is only an incidental matter in the main action for the settlement of the decedent's
estate. Hence, Alan’s contingent money claim, not being an initiatory pleading, does not require a certification
against non-forum shopping. (Sheker v. Estate of Alice O. Sheker, G.R. No.157912, December 13, 2007)
 10. Q: Can the possession of the trustee of the property ripen into ownership?

A: GR: An action to compel a trustee to convey property registered in his name in trust for the benefit of the
cestui qui trust does not prescribe. The trustee’s possession is not adverse because of the specific duties
imposed upon him by the Rules and therefore cannot ripen into title by prescription.

XPN: Prescription may arise where there is adverse possession of the property. To constitute adverse
possession, the following must be present:

1. That the trustee has performed unequivocal acts amounting to an ouster of the cestui que trust;
2. That such positive acts of repudiation had been made known to the cestui que trust; and
3. That the evidence thereon should be clear and conclusive. (Ceniza v. CA, G.R. No. L-46345, January
30,1990)

11. Q: Luis Ramos initiated a complaint-affidavit for deportation before the Bureau of
Immigration and Deportation (BID) against Jimmy Go alleging that the latter is an illegal and
undesirable alien. The complaint for deportation was dismissed but was subsequently
reversed by the Board of Commissioners; hence the corresponding Charge Sheet was filed
against Jimmy, charging him of violating the Philippine Immigration Act of 1940. The Board of
Commissioners issued a warrant of deportation which led to the apprehension of Jimmy.
Jimmy commenced a petition for habeas corpus. Should the petition be granted?

A: NO. Once a person detained is duly charged in court, he may no longer question his detention through a
petition for issuance of a writ of habeas corpus. His remedy would be to quash the information and/or the
warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be
released had been charged before any court. The term “court” in this context includes quasi-judicial bodies of
governmental agencies authorized to order the person’s confinement, like the Deportation Board of the
Bureau of Immigration. (Go, Sr. v. Ramos, G.R. No. 167569, Fernandez v. Jimmy Go, G.R. No. 167570, September 4,
2009)

12. Q: A municipal trial judge, who is related within the third degree of consanguinity to Archie,
complainant, has conducted an ex parte preliminary investigation without affording Ben,
accused, opportunity to be heard and thereafter issued a warrant of arrest, pursuant to which
Ben has been detained, and subsequently forwarded the records of the case to the provincial
prosecutor for appropriate action. Will habeas corpus and certiorari lie?

A: YES. A petition for habeas corpus to relieve Ben under the illegal warrant of arrest, and for certiorari to
assail the warrant of arrest may be filed, and the judge may properly be made respondent, even though the
accused has been in physical custody of the Provincial warden, as the judge has constructive custody of the
accused. For the illegal order and warrant of arrest issued by the judge subsists and Ben is offered no speedy,
adequate remedy or appeal in the ordinary course of law. The writ of habeas corpus, although not designed to
interrupt the orderly administration of justice, can be invoked, in fine, by the attendance of special
circumstance that requires immediate action. (Calvan v. CA, G.R. No.140823, October 3, 2000)

13. Q: Rita Labriaga was caught selling two tea bags of marijuana in Daraga, Albay in a buy-bust
operation conducted by the Narcotics Command. Rita was found in possession of 115 grams of
marijuana. Rita was convicted for violation of RA 6425 and was sentenced for life
imprisonment. Rita filed a motion for reconsideration with modification of sentence. Rita
prays for the retroactive application to her case of RA 7659 which imposes imprisonment of
prision correccional for less than 250 grams of marijuana and for her eventual release from
confinement at the Correctional Institution for Women in Mandaluyong as a consequence of
the application of the new law to her case. It appears that she already served sentence for a
more than a year. Should the motion be granted?
A: YES. The appropriate remedy is to file a petition for habeas corpus considering that the decision in this case
is final. However, in accordance with the ruling in Angeles v. Bilibid Prison (G.R. No. 117568, January 4, 1995)
and People v. Agustin (G.R. No. 98362, September 5, 1995), in which the SC held that the rules on habeas corpus
should be liberally applied in cases which are sufficient in substance, the motion in this case must be treated
as a substantial compliance with the rules on habeas corpus. Rita Labriaga, having served more than the
maximum imposable penalty of prision correccional, should be released. (People v. Labriaga, G.R. No. 92418,
November 20, 1995)

14. Q: Hercules was walking near a police station when a police officer signaled for him to
approach. As soon as Hercules came near, the police officer frisked him but the latter found no
contraband. The police officer told Hercules to get inside the police station. Inside the police
station, Hercules asked the police officer, "Sir, may problema po ba?" Instead of replying, the
police officer locked up Hercules inside the police station jail.

a. What is the remedy available to Hercules to secure his immediate release from detention?
b. If Hercules opts to file a civil action against the police officer, will he have a cause of action?
(2015 BAR)

A:

a. The remedy available to Hercules to secure his immediate release from detention is a petition for
writ of habeas corpus. Under Rule 102, the writ of habeas corpus is available in cases of illegal
detention. Section 5 of Rule 102 provides that a court or judge authorized to grant the writ must,
when the petition therefor is presented and it appears that the writ ought to issue, grant the same
forthwith, and immediately thereupon the clerk of court shall issue the writ or in case of emergency,
the judge may issue the writ under his own hand and may depute any officer or person to serve it.
The court or judge before whom the writ is returned must immediately proceed to hear and examine
the return. (Section 12, Rule 102)

b. YES. Hercules will have a cause of action. Under Article 32(4) of the Civil Code, any public officer
who violates the right of a person to freedom from arbitrary or illegal detention shall be liable to the
latter for damages. The action to recover damages is an independent civil action. Here Hercules was
illegally detained as there was no probable cause to arrest him without warrant.

15. Q: When the soldier’s defense to a petition for habeas corpus is that they released the
detainees for whom the petition was filed, but the allegation of release is disputed by the
parents of the detainees, and it is not denied that the detainees have not been seen or heard
from since their supposed release, do the parents have the burden in law of proving that their
children are still detained by the soldiers or does the burden shifts to the soldiers?

A: The general rule in the number of cases is that the release of a detained person renders moot and academic
the petition for habeas corpus. The cited general rule postulates that the release of the detainees is an
established fact and not in dispute, and they do not constitute to be missing persons. Where, however, there
are grounds for grave doubts about the alleged release of the detainees, where the standard and prescribed
procedure has not been followed, then the burden of proving by clear and convincing evidence the alleged
release is shifted to the soldiers, as the respondents to the petition. (Dizon v. Eduardo, G.R. No. L-59118, March
3, 1988)

16. Q: SSgt. Osario, together with his superior officer, was charged in two informations for
allegedly kidnapping two University of the Philippines students. Warrants of arrest were
issued against his which caused his arrest and was later turned over to the Criminal
Investigation and Detection Unit Group in Camp Crame, Quezon City and was detained in
 Bulacan Provincial Jail. He was later transferred to the Philippine Army Custodial Center in
Fort Bonifacio, Taguig City. Contending that he was being illegally deprived of his liberty, SSgt.
Osorio filed a Petition for Habeas Corpus. He mainly argued that courts- martial, not a civil
court such as the Regional Trial Court, had jurisdiction to try the criminal case considering
that he was a soldier on active duty and that the offense charged was allegedly "service-
connected." Is a writ of habeas corpus the proper remedy for SSgt. Osario?

A: NO. A writ of habeas corpus may no longer be issued if the person allegedly deprived of liberty is
restrained under a lawful process or order of the court. The restraint then has become legal. Therefore, the
remedy of habeas corpus is rendered moot and academic. SSgt. Osorio's proper remedy is to pursue the
orderly course of trial and exhaust the usual remedies. (SSgt. Esgardo Osario vs. Asst. State Prosecutor Juan
Pedro Navera, G.R. No. 223272, February 26, 2018, as penned by J. Leonen)

17. Q: Can the State reserve the power to re-arrest a person for an offense after a court of
competent jurisdiction has absolved him of the offense?

A: NO. Such a reservation is repugnant to the principle that the government is one of laws and not of men.
Under this principle, the moment a person is acquitted of a criminal charge he can no longer be detained or
re-arrested for the same offense. (Toyoto v. Ramos, G.R. No. L-69270, October 15, 1985)

18. Q: Mariano was convicted by the RTC for raping Victoria and meted the penalty of reclusion
perpetua. While serving sentence, Mariano and Victoria got married. Mariano filed a motion in
said court for his release from the penitentiary on his claim that under RA 8353, his marriage
to Victoria extinguished the criminal action against him for rape, as well as the penalty
imposed on him. The court denied the motion on the ground that it had lost jurisdiction over
the case after its decision had become final and executory. What remedy/ies should the
counsel of Mariano take to secure his proper and most expeditious release from the National
Penitentiary? Explain. (2005 BAR)

A: His counsel should file a petition for habeas corpus for the illegal confinement of Mariano or a motion in the
court which convicted Mariano to nullify the execution of his sentence or the order of his commitment on the
ground that a supervening development had occurred.

19. Q: Edward Serapio is under detention pursuant to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended
information for plunder against Serapio and his co-accused. Edward had in fact voluntarily
surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his
arrest had been issued. He filed a petition for habeas corpus contending that he is entitled to
the issuance of said writ because the State, through the prosecution's refusal to present
evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its
burden of proving that as against him, evidence of guilt for the capital offense of plunder is
strong. He also maintains that the issuance by the Sandiganbayan of new orders cancelling the
bail hearings which it had earlier set did not render moot and academic the petition for
issuance of a writ of habeas corpus, since said orders have resulted in a continuing
deprivation of Serapio's right to bail. Should the petition for habeas corpus be granted?

A: NO. The general rule that habeas corpus does not lie where the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the
same applies. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting one's
right to bail. It cannot be availed of where accused is entitled to bail not as a matter of right but on the
discretion of the court and the latter has not abused such discretion in refusing to grant bail or has not
even exercised said discretion. The proper recourse is to file an application for bail with the court where
the criminal case is pending and to allow hearings thereon to proceed.
The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the
Sandiganbayan's resolution of the pending application for bail of Serapio. The recourse of Serapio is to
forthwith proceed with the hearing on his application for bail. (Serapio v. Sandiganbayan, G.R. No. 148468,
January 28, 2003)

20. Q: After Alma had started serving her sentence for violation of BP 22, she filed a petition of
writ of habeas corpus, citing Vaca v. 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 Sec. 14, Rule
102, 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 decision of the trial court correct under Rule 102? (2008 BAR)

A: NO. Section 4, Rule 102 of the Rules of Court (habeas corpus) does not authorize a court to discharge by
writ of habeas corpus a person charged with or convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.

21. Q: Upon a complaint that he is issuing fake Alien Certificate Registration, Morgan, a British
national was arrested by the Bureau of Immigration and Deportation (BID). The Board of
Commissioners (BOC) of the BID issued a deportation order against Morgan. A week after,
Elisa, Morgan’s wife, filed a petition for the issuance of a writ of habeas corpus with the Manila
RTC naming the Immigration Commissioner as respondent. After trial, the RTC dismissed
Elisa’s petition on the ground that a petition for the issuance of a writ of habeas corpus is not
the proper remedy. Is the RTC correct?

A: YES. The power to deport aliens is vested on the President of the Philippines, subject to the requirements
of due process. The Immigration Commissioner is vested with authority to deport aliens under Section 37 of
the Philippine Immigration Act of 1940, as amended. Thus, a party aggrieved by a Deportation Order issued
by the BOC is proscribed from assailing said order in the RTC via a petition for a writ of habeas corpus.

In case such motion for reconsideration is denied by the BOC, the aggrieved party may appeal to the Secretary
of Justice and, if the latter denies the appeal, to the Office of the President of the Philippines. The party may
also choose to file a petition for certiorari with the CA under Rule 65 of the Rules of Court, on the ground that
the Secretary of Justice acted with grave abuse of discretion amounting to excess or lack of jurisdiction in
dismissing the appeal, the remedy of appeal not being an adequate and speedy remedy. In case the Secretary
of Justice dismisses the appeal, the aggrieved party may also resort to filing a petition for review under Rule
43 of the Rules of Court, as amended. (Johnson v. Makalino, G.R. No. 139255, November 24, 2003)

22. Q: Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City.
Wife W files a petition for habeas corpus before the RTC of Pasay City, praying for custody over
their minor child. H files a motion to dismiss the wife’s petition on the ground of the pendency
of the other case. Rule. (2007 BAR)

A: The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity of suits. The
question of who between the spouses should have custody of their minor child could also be determined in
the petition for declaration of nullity of their marriage which is already pending in the RTC of Pasig City. In
other words, the petition filed in Pasay City, praying for custody of the minor child is unnecessary and
violates only the cardinal rule of procedure against multiplicity of suits. Hence, the latter suit may be abated
by a motion to dismiss on the ground of litis pendentia. (Yu v. Yu, G.R. No. 164915, March 10, 2006)
 23. Q: In a petition for habeas corpus which he filed before the CA, Joey sought custody of his
minor son from his former live-in partner, Loreta. Joey alleged that the child's mother was
abroad most of the time and thus, he should be given joint custody over their son. The CA
however denied the petition, and on the basis of Art. 213, par (2) of the Family Code, awarded
custody of the child in favor of the mother. Was the CA correct in denying Joey’s petition for
habeas corpus for the custody of his minor son?

A: YES. Under Art. 176 of the FC, parental authority over an illegitimate child is vested solely in the mother,
and this is true notwithstanding that the child has been recognized by the father as his offspring. At most,
such recognition by the father would be a ground for ordering the latter to give support to, but not custody of,
the child. (David v. CA, 250 SCRA 82) Custody over the minor in this case was therefore awarded correctly to
the mother, and this is all the more so in view of Art. 213 of the Family Code which lays down the Maternal
Preference Rule. There is also no showing that Joey was able to show proof of any compelling reason to wrest
from the mother parental authority over their minor child.

24. Q: In a petition for habeas corpus that was filed by Loran against his estranged wife, as well as
against his parents-in-law whom he alleged were unlawfully restraining him from having
custody of his child, the trial court issued an order directing the aforesaid persons to appear
in court and produce the child in question and to show cause why the said child should not be
discharged from restraint. Does the trial court's Order run counter to Art.213 of the Family
Code?

A: NO. The assailed order of the trial court did not grant custody of the minor to any of the parties but was
merely a procedural directive addressed to the petitioners for them to produce the minor in court and explain
why they are restraining his liberty. Moreover, Art. 213 of the Family Code deals with the adjudication of
custody and serves as a guideline for the proper award of-custody by the court. While the petitioners can
raise it as a counter argument in the custody suit, it may not however be invoked by them to prevent the
father from seeing the child.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto.
Under Art. 211 of the Family Code, both parents in this case have joint parental authority over their child and
consequently joint custody over him. Further, although the couple is separated de facto, the issue of custody
has yet to be adjudicated by the court. In the absence of a judicial grant of custody, both parents are still
entitled to the custody of their child. (Salientes, et al. v. Abanilla, et al., G.R. No. 162734, August 29, 2006)

25. Q: Virginia Pardico, in search of her missing husband, Ben Pardico, filed a Petition for Writ of
Amparo before the RTC of Malolos City against Navia, Dio, and Buising who were all security
guards of Grand Royale Subdivision. Allegedly, Ben was then invited to the security
department of the Grand Royale Subdivision for investigation after he and Bong Lapore were
suspected of theft of electric wires and lamps in the subdivision. Navia, et al. assert that they
had released Ben together with Bong on the same night of the investigation. Navia. et al.
prayed for the denial of the petition for lack of merit. The RTC, however, granted the privilege
of the writ of amparo. Is Virginia entitled to the privilege of the writ of amparo?

A: NO. For the protective writ of amparo to issue in enforced disappearance cases, allegation and proof that
the persons subject thereof are missing are not enough. The petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of government participation which differentiates
an enforced disappearance case from an ordinary case of a missing person.

Here, the petition does not contain any allegation of State complicity, and none of the evidence presented tend
to show that the government or any of its agents orchestrated Ben’s disappearance or that they failed to
exercise extraordinary diligence in investigating his case. While a writ of amparo may lie against a private
individual or entity, government involvement in the disappearance remains an indispensable element. Navia,
et al. are mere security guards and their principal, the Asian Land, is a private entity. They do not work for the
government and nothing has been presented that would link or connect them to some covert police, military
or governmental operation. (Navia v. Pardico, G.R. No. 184467, June 19, 2012)

26. Q: The residents of Mt. Ahohoy, headed by Masigasig, formed a nongovernmental organization
- Alyansa Laban sa Minahan sa Ahohoy (ALMA) to protest the mining operations of Oro Negro
Mining in the mountain. ALMA members picketed daily at the entrance of the mining site
blocking the ingress and egress of trucks and equipment of Oro Negro, hampering its
operations. Masigasig had an altercation with Mapusok arising from the complaint of the
mining engineer of Oro Negro that one of their trucks was destroyed by ALMA members.
Mapusok is the leader of the Association of Peace Keepers of Ahohoy (APKA), a civilian
volunteer organization serving as auxiliary force of the local police to maintain peace and
order in the area. Subsequently, Masigasig disappeared.

Mayumi, the wife of Masigasig, and the members of ALMA searched for Masigasig, but all their
efforts proved futile. Mapagmatyag, a member of ALMA, learned from Maingay, a member of
APKA, during their binge drinking that Masigasig was abducted by other members of APKA, on
order of Mapusok. Mayumi and ALMA sought the assistance of the local police to search for
Masigasig, but they refused to extend their cooperation.

Immediately, Mayumi filed with the RTC, a petition for the issuance of the writ of amparo
against Mapusok and APKA. ALMA also filed a petition for the issuance of the writ of amparo
with the Court of Appeals against Mapusok and APKA. Respondents Mapusok and APKA, in
their Return filed with the RTC, raised among their defenses that they are not agents of the
State; hence, cannot be impleaded as respondents in an amparo petition.

a. Is their defense tenable? Respondents Mapusok and APKA, in their Return filed with
the Court of Appeals, raised as their defense that the petition should be dismissed on
the ground that ALMA cannot file the petition because of the earlier petition filed by
Mayumi with the RTC.
b. Are respondents correct in raising their defense?
c. Mayumi later filed separate criminal and civil actions against Mapusok. How will the
cases affect the amparo petition she earlier filed? (2015 BAR)

A:

1. NO. The defense of Mapusok and APKA that they are not agents of the State and hence cannot be
impleaded as respondents in an amparo petition is not tenable. The writ of amparo is available in
cases where the enforced or involuntary disappearance of a persons is with the authorization,
support or acquiescence of the State. (Sec. 3[g], R.A. No. 9851; Navia v. Pardico, G.R. No. 184467, June
19, 2012)

Here, Mapusok and APKA may be considered as acting with the support or at least the acquiescence
of the State since APKA serves as an auxiliary force of the police and the police refused to assist in the
search for Masigasig.

2. YES. Respondents are correct in raising their defense. Under Section 2(c) of the Rule on the Writ of
Amparo, the filing of a petition by an authorized party on behalf of the aggrieved party suspends the
right of all others, observing the order in Section 2 of the Rule on the Writ of Amparo. Here the
petition for writ of amparo had earlier been filed by the spouse of the aggrieved party Masigasig.
Thus, it suspends the right of all others, including ALMA, to file the petition.
3. The amparo petition shall be consolidated with the criminal action. (Section 23, Rule on the Writ of
Amparo)
 27. Q: A was adopted by B and C when A was only a toddler. Later on in life, A filed with the RTC a
petition for change of name under Rule 103, as he wanted to reassume the surname of his
natural parents because the surname of his adoptive parents sounded offensive and was
seriously affecting his business and social life. The adoptive parents gave their consent to the
petition for change of name. May A file a petition for change of name? If the RTC grants the
petition for change of name, what, if any, will be the effect on the respective relations of A with
his adoptive parents and with his natural parents? Discuss. (2014 BAR)

A: A should be allowed to change his surname because the reasons he invoked are proper and reasonable
under the circumstances. Besides, his adoptive parents have agreed on the change of his surname.

In a case with similar facts, Republic v. Wong (G.R. No. 97906, May 21, 1992) the Supreme Court allowed
Maximo Wong to change his name to Maximo Alcala, Jr. Maximo was the natural child of Spouses Maximo
Alcala, Sr. and Segundina Y. Alcala. When he was adopted by Spouses Hoong Wong and Conception Ty, his
name was changed to Maximo Wong. Upon reaching the age of 22, he filed a petition to change his name to
Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his
relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino
residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that
he is being ridiculed for carrying a Chinese surname, thus hampering business and social life; and that his
adoptive mother does not oppose his desire to revert to his former surname.

28. Q: Is there a need for change of name by a married woman?

A: NO. In case of annulment of marriage or divorce, there is no need to file a petition for resumption of
maiden name or surname. The true and real name of a person is that given to him and entered in the civil
register which a woman may continue to use despite her marriage or cessation of marriage for whatever
cause. The use of the husband’s name is merely permissive which the wife may continue to use except in case
of legal separation. (Yasin v. Judge, Sharia District Court, G.R. No. 94986, February 23, 1995)

Under Art. 370 of the Civil Code, a married woman may use:

1. Her maiden first name and surname and add her husband’s surname;
2. Her maiden first name and her husband’s surname; or
3. Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”

On the other hand, Art. 372 of the Civil Code provides: When legal separation has been granted, the wife
shall continue using her name and surname employed before the legal separation.

29. Q: Petitioner sought to drop his middle name and have his registered name changed from
Julian Lin Carulasan Wang to Julian Lin Wang. Since in Singapore, middle names or the maiden
surname of the mother are not carried in a person’s name, they anticipate that Julian Lin
Carulasan Wang will be discriminated against because of his current registered name which
carries a middle name. Julian and his sister might also be asking whether they are brother and
sister since they have different surnames. Carulasan sounds funny in Singapore’s Mandarin
language since they do not have the letter “R” but if there is, they pronounce it as “L.” It is for
these reasons that the name of Julian Lin Carulasan Wang is requested to be changed to Julian
Lin Wang. Should the petition be granted?

A: NO. Middle names serve to identify the maternal lineage or filiation of a person as well as further
distinguish him from others who may have the same given name and surname as he has. In the case at bar,
the only reason advanced by petitioner for the dropping his middle name is convenience.
However, how such change of name would make his integration into Singaporean society easier and
convenient is not clearly established. That the continued use of his middle name would cause confusion and
difficulty does not constitute proper and reasonable cause to drop it from his registered complete name. (In
Re Petition for Change of Name and/or Correction/Cancellation of Entry of Civil Registry of Julian Lin Carulasan
Wang, G.R. No. 159966, March 30, 2005)

30. Q: As may be gleaned from the petition, the reasons offered for changing the name of
petitioner's daughter are: (1) that "her daughter grew up with, and learned to love and
recognize Alfredo de la Cruz as her own father"; (2) to afford her daughter a feeling of
security; and (3) that "Alfredo de la Cruz agrees to this petition, and has signified his
conformity at the foot of this pleading". Should the petition be granted?

A: NO. Clearly, these are not valid reasons for a change of name. The general rule is that a change of name
should not be permitted if it will give a false impression of family relationship to another where none actually
exists. In Padilla v. Republic (G.R. No. L-28274, April 30, 1982), it was specifically held that our laws do not
authorize legitimate children to adopt the surname of a person not their father, for to allow them to adopt the
surname of their mother's husband, who is not their father, can result in confusion of their paternity.
(Republic v. Marcos G.R. No. 31065, February 15, 1990)

31. Q: Petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto”
to “Mely,” and his sex from “male” to “female.” Petitioner’s basis in praying for the change of
his first name was his sex reassignment. He intended to make his first name compatible with
the sex he thought he transformed himself into through surgery. Can a person’s first name be
changed on the ground of sex reassignment?

A: NO. A change of name does not alter one’s legal capacity or civil status. RA 9048 does not sanction a change
of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in the civil registry and the public
interest. Also, there is no such special law in the Philippines governing sex reassignment and its effects. In our
system of government, it is for the legislature, should it choose to do so, to determine what guidelines should
govern the recognition of the effects of sex reassignment. (Silverio v. Republic, G.R. No. 174689, October 22,
2007)

32. Q: Jennifer was born on January 13, 1981 and was registered as a female in the Certificate of
Live Birth but while growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons
thus afflicted possess both male and female characteristics. Jennifer filed a Petition for
Correction of Entries in Birth Certificate before the RTC, praying that her birth certificate be
corrected such that her gender be changed from female to male and her first name be changed
from Jennifer to Jeff. Rule on the petition.

A: A change of name is not a matter of right but of judicial discretion, to be exercised in the light of the
reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of
name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the
consequence that respondent’s change of name merely recognizes his preferred gender, there is merit in
respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate
from female to male. Here, it is noteworthy to emphasize that Jennifer has simply let nature take its course
and has not taken unnatural steps to arrest or interfere with what he was born with. To him belongs the
human right to the pursuit of happiness and of health. (Republic v. Cagandahan, G.R. No. 166676, September
12, 2008)

33. Q: The allegations of the petition filed before the trial court clearly show that petitioners seek
to nullify the marriage with which they ask the court to order Patrick to be subjected to a DNA
 test. Petitioners insist, however, that the main cause of action is for the correction of Patrick's
birth records and that the rest of the prayers are merely incidental thereto. Should it prosper?

A: NO. Petitioners' position does not lie. Their cause of action is actually to seek the declaration of Pablo and
Lucille's marriage as void for being bigamous and impugn Patrick's legitimacy, which causes of action are
governed not by Rule 108 but by A.M. No. 02-11-10-SC which took effect on March 15, 2003, and Art. 171 of
the Family Code, respectively, hence, the petition should be filed in a Family Court as expressly provided in
said Code. In a special proceeding for correction of entry under Rule 108, the trial court has no jurisdiction to
nullify marriages and rule on legitimacy and filiation. (Braza v. City Civil Registrar of Himamaylan City, Negros
Occidental, G.R. No. 181174, December 4, 2009)

34. Q: Celine files a petition for cancellation of the birth certificate of her daughter Jeanie on the
ground of falsified material entries therein made by Celine’s husband as the informant. The
publication of the order once a week for 3 consecutive weeks in a newspaper of general
circulation. Summons was served on the Civil Registrar but there was no appearance during
the hearing. The RTC granted the petition. Jeanie filed a petition for annulment of judgment
before the CA, saying that she was not notified of the petition and hence, the decision was
issued in violation of due process. Celine opposed saying that the publication of the court
order was sufficient compliance with due process rule. (2007 BAR)

A: It should not be granted. The publication of an order of hearing under Section 4 of Rule 108 cured the
failure to implead an indispensable party. A petition for correction is an action in rem, an action against a
thing and not against a person. Publication is notice to the whole world that the proceeding has for its object
to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be
established. It is the publication of such notice that brings in the whole as a party in the case and vests the
court with jurisdiction to hear and decide it. (Republic v. Kho, G.R. No. 170340, June 29, 2007; Alba v. CA, G.R.
No. 164041, July 29, 2005; Barco v. CA, G.R. No. 120587, January 20, 2004)

35. Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another
woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony
and Eliza and that she is a Chinese citizen. Helen wants her birth certificate corrected by
changing her filiation from "legitimate" to "illegitimate" and her citizenship from “Chinese" to
"Filipino" because her parents were not married. What petition should Helen file and what
procedural requirements must be observed? Explain. (2005 BAR)

A: A petition has to be filed in a proceeding under Rule 108 of the Rules of Court. A petition to change the
record of birth by changing the filiation from “legitimate” to “illegitimate” and petitioner’s citizenship from
“Chinese” to “Filipino” does not involve a simple summary correction which could otherwise be done under
the authority of RA 9048.

Procedural requirements include:

1. Filing a verified petition;

2. Naming as parties all persons who have or claim any interest which would be affected;
3. Issuance of an order fixing the time and place of hearing;
4. Giving reasonable notice to the parties named in the petition; and
5. Publication of the order once a week for 3 consecutive weeks in a newspaper of general circulation.

36. Q: Mary Jane met Shiela May at the recruitment agency where they both applied for overseas
employment. They exchanged pleasantries, including details of their personal circumstances.
Fortunately, Mary Jane was deployed to work as front desk receptionist at a hotel in Abu
Dhabi where she met Sultan Ahmed who proposed marriage, to which she readily accepted.
Unfortunately for Shiela May, she was not deployed to work abroad, and this made her
 envious of Mary Jane. Mary Jane returned to the Philippines to prepare for her wedding. She
secured from the National Statistics Office (NSO) a Certificate of No Marriage. It turned out
from the NSO records that Mary Jane had previously contracted marriage with John Starr, a
British citizen, which she never did. The purported marriage between Mary Jane and John
Starr contained all the required pertinent details on Mary Jane. Mary Jane later on learned
that Shiela May is the best friend of John Starr. As a lawyer, Mary Jane seeks your advice on
her predicament. What legal remedy will you avail to enable Mary Jane to contract marriage
with Sultan Ahmed? (2014 BAR)

A: A Petition for Correction or Cancellation of Entry under Rule 108 may be filed by Mary Jane because what
she sought to be corrected is only the record of such marriage in the Civil Registry Office in order to reflect
the truth as set forth by the evidence, and not the nullification of marriage as there was no marriage in the
first place. (Republic v. Olaybar, G.R. No. 189538, February 10, 2014)

37. Q: Hades, an American citizen, through a dating website, got acquainted with Persephone, A
Filipina. Hades came to the Philippines and proceeded to Baguio City where Persephone
resides. Hades and Persephone contracted marriage, solemnized by the Metropolitan Trial
Court judge of Makati City. After the wedding, Hades flew back to California, United States of
America, to wind up his business affairs. On his return to the Philippines, Hades discovered
that Persephone had an illicit affair with Phanes. Immediately, Hades returned to the United
States and was able to obtain a valid divorce decree from the Superior Court of the County of
San Mateo, California, a court of competent jurisdiction against Persephone. Hades desires to
marry Hestia, also a Filipina, whom he met at Baccus Grill in Pasay City.

1. As Hades’ lawyer, what petition should you file in order that your client can avoid prosecution
for bigamy if he desires to marry Hestia?
2. In what court should you file the petition?
3. What is the essential requisite that you must comply with for the purpose of establishing
jurisdictional facts before the court can hear the petition? (2015 BAR)

A:

1. As Hades’ lawyer, I would file a petition for recognition of a foreign divorce decree, or at least a
special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the
Rules of Court and include therein a prayer for recognition of the aforementioned divorced decree.

In Corpus v. Sto. Tomas (G.R. No. 186571, August 11, 2010), the High Court declared that the
recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object
of special proceedings (such that in Rule 108 of the Rules of Court) is precisely to establish the status
of a party or a particular fact. (Fujiki v. Marinay, G.R. No. 196049, June 26, 2013)

2. Petition for cancellation or correction of entries under Rule 108 should be filed in the Regional Trial
Court of Makati City, where the corresponding Local Civil Registry is located.
3. Before the court can hear the petition under Rule 108 of the Rules of Court, Hades must satisfy the
following procedural requirements:
i. Filing a verified petition;
ii. Naming as parties all persons who have or claim any interest which would be affected;
iii. Issuance of an order fixing the time and place of hearing;
iv. Giving reasonable notice to the parties named in the petition; and
v. Publication of the order once a week for 3 consecutive weeks in a newspaper of general
circulation. (Rule 108, Rules of Court; Co v. Civil Register of Manila, G.R. No. 138496, February
23, 2004, 423 SCRA 420; Corpuz v. Tirol, G.R. No. 186571, August 11,2010)
 38. Q: From the allegations in her petition, Mercadera clearly prayed for the lower court "to
remove the faults or error" from her registered given name "MARILYN," and "to make or set
aright" the same to conform to the one she grew up to, "MERLYN." The OSG posits that the
conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous error but a
material correction tantamount to a change of name which entails a modification or increase
in substantive rights. For the OSG, this is a substantial error that requires compliance with the
procedure under Rule 103, and not Rule 108. The petition filed by Mercadera before the RTC
correctly falls under Rule 108 as it simply sought a correction of a misspelled given name. Is
the contention of OSG correct?

A: The use of the letter "a" for the letter "e," and the deletion of the letter "i," so that what appears as
"Marilyn" would read as "Merlyn" is patently a rectification of a name that is clearly misspelled. The similarity
between "Marilyn" and "Merlyn" may well be the object of a mix- up that blemished Mercadera’s Certificate of
Live Birth until her adulthood, thus, her interest to correct the same. Besides, granting that Rule 103 applies
to this case and that compliance with the procedural requirements under Rule 108 falls short of what is
mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial
proceeding before the lower court. The publication and posting of the notice of hearing in a newspaper of
general circulation and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an
adverse proceeding. The fact that no one opposed the petition, including the OSG, did not deprive the court of
its jurisdiction to hear the same and did not make the proceeding less adversarial in nature. Considering that
the OSG did not oppose the petition and the motion to present its evidence ex parte when it had the
opportunity to do so, it cannot now complain that the proceedings in the lower court were procedurally
defective. (Republic v. Mercadera, G.R. No. 186027, December 8, 2010)

39. Q: Carla was born with two genitals, one for male and one for female. Only after maturity did
his male dominant features becomes manifest. Carla filed a petition for change of name to
Carlo. The available evidence presented in court including the fact that Carla thinks of himself
as a male and as to the statement made by the doctor that Carla’s body produces high levels of
male hormones, which is preponderant biological support for considering him as male.
Should the petition be granted?

A: YES. Compassion calls for recognition of the various degrees of intersex as variations should not be subject
to outright denial. The court must give respect to:

1. The diversity of nature; and

2. How an individual deals with what nature has handed out.

His congenital condition and his mature decision to be a male must be considered. (Republic v. Cagandahan,
G.R. No. 166676, September 12, 2008)

40. Q: Can an illegitimate child whose filiation is not recognized by the father bear both the
mother’s surname as his middle name and his father’s surname as surname?

A: An illegitimate child whose filiation is not recognized by the father bears only a given name and his
mother’s surname and does not have a middle name. The name of the unrecognized illegitimate child
therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public document or private handwritten
instrument that he bears both his mother’s surname as his middle name and his father’s surname as his
surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the
registration in the civil registry of the birth of such individuals requires that the middle name be indicated in
the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains
a given or proper name, a middle name, and a surname. (In Re: Petition for Change of Name and/or
Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30,
2005)

41. Q: In estate proceedings, may the court pending a controversy or appeal, allow an advance
distribution?

A: YES. The court may in its discretion and upon proper and just terms, allow advance distribution subject to
the following requirements:

1. Advance distribution shall pertain only to such part of the estate as may not be affected by the
controvery or appeal.
2. The debts, funeral charges, administration expenses, and estate taxes must first have been paid,
unless the distributees or any of them give a bond to secure such payment. (Riguera, 2020, citing Sec.
2, Rule 109)

42. Q: Is the probate court’s order denying a motion for advance distribution appealable?

A: NO. Such order is merely interlocutory and thus, not appealable. (Riguera, 2020, citing Ignacio v. Reyes, G.R.
No. 213192, July 12, 2017)