REMEDIAL LAW BAR QUESTIONS

WEEKDAYS

Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the ownership
and possession of two parcels of land; one situated in Pampanga, and the other in Bulacan.

a. May the action prosper? Explain. (2%)

b. Will your answer be the same if the action was for foreclosure of the mortgage over the two
parcels of land? Why or why not? (2%)

a. No, the action may not prosper.

Under the Rules of Civil Procedure, venue in case of real actions lies with the court having
jurisdiction over the place where the real property is situated. The action is a real action because it
affects title to or possession of real property,

b. Yes, because an action for foreclosure or real estate mortgage is a real action for it affects
title to or possession over a real property.

II

Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiff's evidence, Dioscoro died. Atty. Cruz, Dioscoro's counsel, then filed a
motion to dismiss the action on the ground of his client's death. The court denied the motion
to dismiss and, instead, directed counsel to furnish the court with the names and addresses
of Dioscoro's heirs and ordered that the designated administrator of Dioscoro's estate be
substituted as representative party.

After trial, the court rendered judgment in favor of Cresencio. When the decision had become
final and executory, Cresencio moved for the issuance of a writ of execution against
Dioscoro's estate to enforce his judgment claim. The court issued the writ of execution. Was
the court's issuance of the writ of execution proper? Explain. (2%)

No. Considering that the defendant was already dead, as stated in the Rules of
Procedure, a judgment for money against a deceased person should be filed as a money
claim with the probate court. The Supreme Court has held that a money claim cannot be
enforced by a writ of execution but should be filed as a money claim.
 III

On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio.

To prove the qualifying circumstance of evident premeditation, the prosecution introduced on

December 11, 2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on
the eve of his death, reading: "Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka
ma tsugi k."

a. A subpoena ad testificandum was served on Gregoria for her to be presented for the

purpose of identifying her cellphone and the text message. Mabini objected to her
presentation on the ground of marital privilege. Resolve. (3%)

b. Suppose Mabini’s objection in question A was sustained. The prosecution thereupon

announced that it would be presenting Emilio’s wife Graciana to identify Emilio’s cellphone
bearing Gregoria’s text message. Mabini objected again. Rule on the objection. (2%)

c. If Mabini’s objection in question B was overruled, can he object to the presentation of the
text message on the ground that it is hearsay? (2%)

d. Suppose that shortly before he expired, Emilio was able to send a text message to his wife
Graciana reading "Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2." Is this
text message admissible as a dying declaration? Explain. (3%)

a. The objection should be sustained.

Under the marital disqualification rule, a spouse may not testify against his or her spouse
without the latter’s consent.

Here, the mere fact that Gregoria was estranged from Mabini is not an exception to the
marital disqualification rule. It still apply for they are still husband and wife under the law.

b. The objection should be overruled. The marital disqualification rule may not be invoked by
Mabini against Graciana because the latter is not his wife.

c. Mabini cannot object to the presentation of text message on the ground that it was hearsay.

The Supreme Court held that statements showing the declarant’s state of mind, such as
knowledge or belief, are considered independently relevant statements and thus not hearsay.
Moreover

d. Yes, the text message is admissible as a dying declaration.

The text message was made by Emilio under consciousness of an impending death. This
shown by his statement that he could no longer breathe. It also related to the cause of death, that is,
his shooting by Mabini.
 IV.

Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court (MTC) of
Candaba, Pampanga. After the issues had been joined, the MTC dismissed the complaint for lack of
jurisdiction after noting that the action was one for accion publiciana.

Anabel appealed the dismissal to the RTC which affirmed it and accordingly dismissed her appeal.
She elevates the case to the Court of Appeals, which remands the case to the RTC. Is the appellate
court correct? Explain. (3%)

The appellate court is not correct.

Under the Rules of Civil Procedure, where the Municipal Trial Court (MTC) dismisses a case
on the ground that it has no jurisdiction, the plaintiff may appeal the order of dismissal to the
Regional Trial court (RTC) which while affirming the dismissal order shall try the case on the merits if
it has jurisdiction thereof and as if the case were originally filed with it.

Here, the RTC had the original jurisdiction over the accion publiciana case; hence it should
have tried the same. Thus, the remand by the Court of Appeals was proper.

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.

(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%)

(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%)

A. 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.
B. 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 states 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.

VI.

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.

(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%)

(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%)

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

Under the Rules of 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
Makati or Silang would have jurisdiction over the criminal cases.

B. 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.