LAST MINUTE TIPS

REMEDIAL LAW

CIVIL PROCEDURE

Essay Questions:

Problem I

A, a resident of Manila, and B, a resident of Quezon City, entered into a Lease

Agreement, whereby A undertook to lease B's condominium unit at Seatea Land XX in
Ortigas Center, Pasig City. The lease period is for 2 years, starting on January 1, 2018,
and the rental was set at P60,000.00 per month, covered by post-dated checks. A was
prohibited from sub-leasing the premises without the prior written consent of B. The
agreement also included a venue stipulation, hence: "Should litigation arise from or in
relation to this Lease Agreement, the parties agree that the exclusive venue shall be in
the courts of Makati, unless the parties agree otherwise."

B discovered that A had entered into a sub-lease with C without his written
consent. B wrote A demanding the immediate surrender of the leased premises and
payment of back rentals. A replied and denied the sub-lease. A reasoned that C is his
cousin who is living with him in the leased premises. As for the rental arrears, A
promised to update his account within a week's time. Despite the lapse of one (1) month,
however, A still failed to pay.

B filed a Complaint for Rescission of the Lease Agreement, Recovery of

Possession and Damages against A and C before the Regional Trial Court of Quezon
City. Attached to the Complaint were the Lease Agreement and B's demand letter to
A.

Counsel for A, Atty. X, filed an Entry of Appearance with Motion for Extension
of Time to File an Answer' or a Motion to Dismiss. C, for his part, filed a Motion to
Dismiss alleging lack of cause of action, insisting there is no privity between him and
B.

The RTC granted A a 15-day extension of his period to plead, until March 1,
2018. A submitted a Motion to Dismiss on March 2, 2018, alleging lack of
jurisdiction, first, over his person, considering that the Sheriff failed to personally
serve summons directly to him, and second, over the subject matter of the action, as
the Complaint partakes of the nature of a real action and B failed to allege the assessed
value of the subject property. Additionally, A claims that B failed to pay the correct
docket fees based on such assessed value. The RTC thus failed to acquire jurisdiction over the
case.

B filed a Motion to Declare A in Default due to the late filing of his Motion to
Dismiss. Separately, B opposed the Motion to Dismiss of C, arguing that C is an
indispensable party without whom no final determination of the case can be had.
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Q.l. Which court has jurisdiction over the complaint of B? What is the real nature of
the case filed by B?

Suggested Answer:
The Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts have jurisdiction over the complaint of B, because the real nature of the case is one for
unlawful detainer. [B.P. Blg. 192, Section 19]

In this case, B filed a Complaint for the recovery of possession of the subject property
from A and C, the circumstances of the case satisfies all the elements of unlawful detainer, as
follows:

(a) A previously lawfully possessed the property by lease;

(b) B notified A that his right of possession was terminated for violating the lease, by sub-
leasing the property to C;
(c) A and C remained in possession despite B’s notice and deprived B of its enjoyment; and
(d) B filed a complaint within one year from his demand that A and C vacate the property.
[Sps. Erorita v. Dumlao, G.R. No. 195477

Q.2. Which court is the proper venue for the complaint of B? Is the venue stipulation
in the Lease Agreement exclusive?

Suggested Answer:
The stipulated venue of the courts of Makati City is the proper venue for the complaint
of B. The Supreme Court held that an exclusive venue stipulation is valid and binding, provided
that: (a) the stipulation on the chosen venue is exclusive in nature or in intent; (b) it is expressed
in writing by the parties thereto; and (c) it is entered into before the filing of the suit. [Ley
Construction and Development Corporation, et al. v. Sedano, G.R. No. 222711, 23 August 2017]

In this case, A and B included in their lease contract the stipulation that “Should
litigation arise from or in relation to this Lease Agreement, the parties agree that the exclusive
venue shall be in the courts of Makati, unless the parties agree otherwise.” The stipulation is
valid.

Q.3. Should A be declared in default? What are the consequences of and remedies
from a default declaration?

Suggested Answer:
A should be declared in default for failure to file an Answer within the time allowed
therefor. [Rule 9, Section 1]

The consequences of a judgment of default are as follows:

(a) the court shall proceed to render judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion requires the claimant to
submit evidence. Such reception of evidence may be delegated to the clerk of court.
[Rule 9, Section 3]
(b) A party in default shall be entitled to notice of subsequent proceedings but not to
take part in the trial. [Rule 9, Section 3(a)]

The remedy from a judgment of default is to file a motion, at any time after notice
thereof and before judgment, to set aside the order of default upon proper showing that his

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failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. [Rule 9, Section 3(b)]

Q.4. Rule on A's Motion to Dismiss. Did the RTC acquire jurisdiction over the subject
matter and over A's person?

Suggested Answer:
A’s Motion to Dismiss should be granted for lack of jurisdiction over the subject matter
of the complaint.

(a) The Regional Trial Court did not acquire jurisdiction over the subject matter of the
case, which is one for unlawful detainer over which the Municipal Trial Courts, Metropolitan
Trial Courts and Municipal Circuit Trial Courts have jurisdiction.

The general rule is that the jurisdiction of a court may be questioned at any stage of the
proceedings.  Lack of jurisdiction is one of those excepted grounds where the court may dismiss
a claim or a case at any time when it appears from the pleadings or the evidence on record that
any of those grounds exists, even if they were not raised in the answer or in a motion to dismiss.
So that, whenever it appears that the court has no jurisdiction over the subject matter, the action
shall be dismissed. This defense may be interposed at any time, during appeal or even after
final judgment. Such is understandable, as this kind of jurisdiction is conferred by law and not
within the courts, let alone the parties, to themselves determine or conveniently set aside. [Heirs
of Jose Fernando v. De Belen, G.R. No. 186366, 3 July 2013].

(b) The Regional Trial Court acquired jurisdiction over A’s person.

A cannot interpose the defense that the court did not acquire jurisdiction over his person
him because the sheriff supposedly failed to personally serve summons directly to him, as he
had already filed his Entry of Appearance with Motion for Extension of Time to File an Answer
or a Motion to Dismiss.

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the
coercive power of legal processes exerted over his person, or his voluntary appearance in court.
As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the
filing of motions to admit answer, for additional time to file answer, for reconsideration of a
default judgment, and to lift order of default with motion for reconsideration, is considered
voluntary submission to the court’s jurisdiction.  [Prudential Bank v. Magdamit, Jr., G.R. No.
183795, 12 November 2014]

Q.5. Rule on C's Motion to Dismiss. What is the difference between lack of cause of
action and failure to state a cause of action?

Suggested Answer:
C’s Motion to Dismiss for lack of cause of action should be denied. A cause of action is
an act or omission of one party the defendant in violation of the legal right of the other. A cause
of action is sufficient if a valid judgment may be rendered thereon if the alleged facts were
admitted or proved.

In order to sustain a motion to dismiss for lack of cause of action, the complaint must
show that the claim for relief does not exist, rather than that a claim has been merely defectively

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stated or is ambiguous, indefinite or uncertain. [Relucio v. Mejia Lopez, G.R. No. 138497, 16
January 2002] In this case, B has a cause of action against C, seeing as C is occupying the
property that B owns.

The difference between failure to state a cause of action and a lack of cause of action are
as follows:

Failure to state a cause of action and lack of cause of action are distinct grounds to
dismiss a particular action. The former refers to the insufficiency of the allegations in the
pleading, while the latter to the insufficiency of the factual basis for the action. [Zuniga-Santos v.
Santos-Gran, G.R. No. 197380, 8 October 2014]

Failure to state a cause may be raised in a Motion to Dismiss under Rule 16, while lack of
cause may be raised any time. Dismissal for failure to state a cause can be made at the earliest
stages of an action. Dismissal for lack of cause is usually made after questions of fact have been
resolved on the basis of stipulations, admissions or evidence presented. [Naguit Aquino v.
Quiazon, G.R. No. 201248, 11 March 2015]

Justice Regalado, a recognized commentator on remedial law, has explained the

distinction: xxx What is contemplated, therefore, is a failure to state a cause of action which is
provided in Sec. 1(g) of Rule 16. This is a matter of insufficiency of the pleading. Sec. 5 of Rule
10, which was also included as the last mode for raising the issue to the court, refers to the
situation where the evidence does not prove a cause of action.

This is, therefore, a matter of insufficiency of evidence. Failure to state a cause of action
is different from failure to prove a cause of action. The remedy in the first is to move for
dismissal of the pleading, while the remedy in the second is to demur to the evidence, hence
reference to Sec. 5 of Rule 10 has been eliminated in this section. The procedure would
consequently be to require the pleading to state a cause of action, by timely objection to its
deficiency; or, at the trial, to file a demurrer to evidence, if such motion is warranted. [Pacañas-
Contreras v. Rovila Water Supply, Inc., G.R. No. 168979, 2 December 2013].

Q.6. Is C an indispensable party? Assuming that C's impleader is improper, is

dismissal the right course of action?

Suggested Answer:
C is an indispensable party, since his interest will be affected by the current action, as he
is currently occupying the property which B is seeking to recover.

An indispensable party is one whose interest will be affected by the court’s action in the
litigation, and without whom no final determination of the case can be had. [Divinagracia v.
Parilla, G.R. No. 196750, 11 March 2015].

The party’s interest in the subject matter of the suit and in the relief sought are so
inextricably intertwined with the other parties’ that his legal presence as a party to the
proceeding is an absolute necessity. In his absence, there cannot be a resolution of the dispute of
the parties before the court which is effective, complete, or equitable. Thus, the absence of an
indispensable party renders all subsequent actions of the court null and void, for want of
authority to act, not only as to the absent parties but even as to those present. [Divinagracia v.
Parilla, G.R. No. 196750, 11 March 2015].

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Assuming that C’s impleader is improper, dismissal is not the right course of action in
this case.

Neither misjoinder nor non-joinder of parties is ground for dismissal of an action.

Parties may be dropped or added by order of the court on motion of any party or on its own
initiative at any stage the action and on such terms as are just. Any claim against a misjoined
party may be severed and proceeded with separately. [Rule 3, Section 11]

Q.7. Assume that the RTC denied the Motion to Declare A in Default and B files a
petition for certiorari under Rule 65 with the Supreme Court, arguing only a pure
question of law, should the Supreme Court give the petition due course?

Suggested Answer:
No, the Supreme Court should not give due course to B’s petition for certiorari, because
it is an improper remedy.

The proper remedy to assail the denial of an interlocutory order on a pure question of
law is under Rule 45. [Rule 45, Section 1]
However, even if the Supreme Court treats the petition for certiorari as a petition for
certiorari under Rule 65, the same still cannot be given due course, due to the principle of
hierarchy of court. That hierarchy is determinative of the venue of appeals, and also serves as a
general determinant of the appropriate forum for petitions for the extraordinary writs.
[Candelaria v. Regional Trial Court, Branch 42, City of San Fernando, G.R. No. 173861, 14 July 2014]

Q.8. Are the Lease Agreement and demand letter actionable documents? If so, how
are they supposed to be addressed by A in his answer?

Suggested Answer:
The Lease Agreement and demand letter are actionable documents, as B’s action in the
Complaint for C’s alleged improper occupancy is based thereon.

Whenever an action or defense is based upon a written instrument or document, the

substance of such instrument or document shall be set forth in the pleading, and the original or
a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part
of the pleading, or said copy may with like effect be set forth in the pleading. [Rule 8, Section 7]

Problem II

Rodrigo sued Lourdes for Collection of a Sum of Money before the

Metropolitan Trial Court (MeTC) of Manila. Because no answer was filed, the
MeTC declared Lourdes in default, upon motion of Rodrigo, and rendered
judgment by default, awarding the amounts prayed for by Rodrigo in his
Complaint.

Armed with a writ of execution of the judgment by default, the MeTC

Sheriff waited for Lourdes at her office and then and there seized her motor vehicle.

Lourdes was shocked to learn for the very first time that a judgment had already been
rendered against her.

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Lourdes filed an Omnibus Motion for Reconsideration and New Trial. She
alleged collusion on the part of Rodrigo and the MeTC Sheriff in giving her
address in the Complaint as “123 Matahimik Street,” when her true address, which
is known to Rodrigo, is “128 Matahimik Street.” Thus, the MeTC failed to acquire
jurisdiction over her person and the judgment is void.

Q.l. Rule on the Omnibus Motion of Lourdes.

Suggested Answer:
The Motion to Dismiss is without merit and therefore should be denied. Lourdes cannot
assail the court’s jurisdiction over her by filing a motion for reconsideration of a default
judgment and to lift order of default with motion for reconsideration, as this is considered as
voluntary submission to the court’s jurisdiction.

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the
coercive power of legal processes exerted over his person, or his voluntary appearance in court.
As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the
filing of motions to admit answer, for additional time to file answer, for reconsideration of a
default judgment, and to lift order of default with motion for reconsideration, is considered
voluntary submission to the court's jurisdiction. This, however, is tempered by the concept of
conditional appearance, such that a party who makes a special appearance to challenge,
among others, the court's jurisdiction over his person cannot be considered to have
submitted to its authority. [Philippine Commercial Bank v. Sps. Pi and Dy, G.R. No. 171137, 5 June
2009]

The MeTC issued an Order setting the Omnibus Motion for hearing and required
Rodgrigo to file a comment.

Rodrigo challenged the Omnibus Motion for being pro forma. He argued
that the Omnibus Motion did not contain the notice of hearing required under Rule
15 because it was addressed to the Branch Clerk of Court, and not to his counsel.
Also, no hearing was set as the notice merely stated “submitted for the immediate consideration
of the Honorable Court.”

Q.2. Rule on Rodrigo’s objection to the motion.

Suggested Answer:
Except for motions which the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by the applicant. (4a) [Rule 15,
Section 4]

Rodrigo’s objections to the lack of notice of hearing in Lourdes’ Omnibus Motions

should be sustained. Lourdes’ Omnibus Motion is a motion which could prejudice the rights of
an adverse party, and should thus be set for hearing.

The MeTC denied Lourdes' Omnibus Motion. She filed a Motion for Reconsideration of
the Order of denial. The MeTC denied the motion outright for being a second motion for
reconsideration.

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Q.3. Was the MeTC correct?

Suggested Answer:
The MeTC was correct in denying Lourdes’ Second Motion for Reconsideration.

A second motion for reconsideration, as a rule, is a prohibited pleading which shall not
be allowed except for extraordinarily persuasive reasons and only after an express leave shall
have first been obtained. Considering that a second motion for reconsideration is a pro forma
motion and does not toll the reglementary period for an appeal, the period to appeal lapsed.
[Roasters Philippines, Inc. v. Ga Viola, G.R. No. 191874, 2 September 2015]

Lourdes filed a Notice of Appeal with the Regional Trial Court, from the
judgment by default, simultaneously paying the docket fees.

However, Lourdes also filed a Petition for Injunction with application for a
writ of preliminary injunction assailing that denial of her motion for
reconsideration. She alleged that it was grave abuse of discretion for the MeTC to
deny her motion outright for being a second motion for reconsideration considering
that the Omnibus Motion sought reconsideration of the judgment by default, and so
the subject matter of the two motions are different.

Q.4(a). Rodrigo moved to dismiss the appeal for being time-barred, considering
that the judgment has long become final and executory. It was also the incorrect
remedy.

Should the appeal be dismissed?

Suggested Answer:
Lourdes’ appeal should be dismissed because it is an incorrect remedy.

The proper remedy from a judgment of default is to file a motion to lift said order of
default. A party declared in default may at any time after notice thereof and before judgment
file a motion under oath to set aside the order of default upon proper showing that his failure to
answer was due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default may be set aside on such terms and
conditions as the judge may impose in the interest of justice. [Rule 9, Section 3(b)]

Q.4(b). Rodrigo also moved to dismiss the Rule 65 petition on ground of forum
shopping. Moreover, he posited that the order of denial of the motion for
reconsideration is not the proper subject of a petition for certiorari under Rule 65.

Rule on Rodrigo's motion.

Suggested Answer:
Rodrigo’s motion should be denied because there is no forum shopping in this case.

There is forum shopping "when a party repetitively avails of several judicial remedies in
different courts, simultaneously or successively, all substantially founded on the same
transactions and the same essential facts and circumstances, and all raising substantially the

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same issues either pending in or already resolved adversely by some other court.” [Heirs of
Marcelo Sotto v. Palicte, G.R. No. 159691, 17 February 2014]

Lourdes’ Rule 65 petition did not violate the rules against forum shopping because she is
asking for two (2) different reliefs in the filing of her Notice of Appeal and the Petition for
Injunction.

Moreover, Rodrigo’s argument that Rule 65 is an improper remedy is incorrect. A

Petition for certiorari under Rule 65 is a proper remedy to assail an order attended by grave
abuse of discretion.

The exercise of the power to correct grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government cannot be
thwarted by rules of procedure to the contrary or for the sake of the convenience of one side.
This is because the Court has the bounden constitutional duty to strike down grave abuse of
discretion whenever and wherever it is committed. [Macapagal Arroyo v. People of the Philippines,
G.R. No. 220598, 18 April 2017]

The RTC issued a writ of preliminary injunction and enjoined the execution
of the judgment by default.

Rodrigo moved to dissolve the writ of preliminary injunction on the ground

that it is already fait accompli, considering that the motor vehicle of Lourdes had
already been levied. Moreover, Rodrigo pointed out that the judgment by default
has already become immutable and may no longer be altered.

Q.5. Rule on Rodrigo's motion to dissolve writ.

Suggested Answer:
Rodrigo’s motion to dissolve the writ of preliminary injunction should be granted.
It was improper for the Regional Trial Court to issue the writ of preliminary injunction
since the act sought to be enjoined had already been accomplished. Case law instructs that
injunction would not lie where the acts sought to be enjoined had already become fait accompli
(meaning, an accomplished or consummated act) [Sps. Marquez v. Sps. Alindog, G.R. No. 184045,
22 January 2014].

However, Rodrigo’s argument that the judgment of default is immutable and may no
longer be altered is incorrect. If found void, said judgment can never become final or
immutable. [Imperial v. Armes, G.R. No. 178842, 30 January 2017]

The RTC denied Rodrigo's motion to dissolve the writ of preliminary

injunction. The Sheriff thus proceeded with execution. He set the auction sale of
Lourdes' motor vehicle. Preparatory to the auction, the Sheriff required Lourdes to
turn over the owner's copies of the OR and CR of the vehicle, as well as its
duplicate keys. But Lourdes refused to comply. Rodrigo thus filed a motion with
the MeTC to order Lourdes to comply and it was granted. Despite personal service
of the order on Lourdes, she still refused to comply.

Rodrigo filed a motion to cite Lourdes in indirect contempt of court with the
MeTC. The MeTC granted the motion and cited Lourdes for indirect contempt. It
issued a warrant for the arrest of Lourdes.

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Lourdes moved for reconsideration of the order citing her in indirect

contempt, and prayed for the warrant of arrest to be quashed.

Q.6. Rule on Lourdes' motion.

Suggested Answer:
Lourdes’ motion for reconsideration of the order citing her in contempt must be granted.
A charge for indirect contempt, if not done motu proprio by the court, should be in the form of a
verified petition.

A citation for indirect contempt may only be done by the court motu proprio, or
otherwise, be commenced by a verified petition with supporting particulars and certified true
copies of documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court concerned. [Rule 71,
Section 4]

Assume that the case had gone to trial. Rodrigo moved for the issuance of
subpoena ad testificandum against Lourdes to be his adverse witness. Lourdes
opposed the motion. Rodrigo did not resort to any of the modes of discovery prior
to trial.

Q.7. Rule on Rodrigo's motion.

Suggested Answer:
Rodrigo’s motion for the issuance of a subpoena ad testificandum against Lourdes must
be denied, for failure of Rodrigo to resort to the modes of discoveries.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal. [Rule 25, Section 6]

Unless otherwise allowed by the court for good cause shown and to prevent a failure of
justice a party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal knowledge of
the latter, shall not be permitted to present evidence on such facts. [Rule 26, Section 5]

Problem III

I. Mario and Luigi entered into a business venture, with Mario as the capitalist
and Luigi as the industrial partner. Since Luigi was the designated Manager, he
demanded that he be paid a monthly salary over and above his monthly share in the
profits. Mario refused on the ground that Luigi's contribution to the business venture
was precisely his work, hence he is not entitled to be paid for it. Because of the impasse,
Luigi stopped reporting for work. Mario had to hire a replacement Manager to take over.

Mario sued Luigi for breach of contract and damages. He prayed for the rescission
of their joint venture agreement. Luigi counterclaimed asking for specific performance,
claiming his entitlement to the payment of salaries for the entire period he worked as
Manager.

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Q.1(a). What is the nature of Mario's action and where is the proper venue for it?
Suggested Answer:
Mario’s action for breach of contract is in the nature of a civil action in which the subject
of the litigation is incapable of pecuniary estimation. [B.P. Blg. 129, Section 19] In the specific
performance and rescission of contract cases, the subject matter is incapable of pecuniary
estimation, hence jurisdiction belongs to the Regional Trial Court.  [Sps. Pajares v. Remarkable
Laundry and Dry Cleaning, G.R. No. 212690, 20 February 2017]

The venue is either Mario’s or Luigi’s place of residence. Personal actions may be
commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff. [Rule 4, Section 2]

Q.1(b). Assume that in Mario's and Luigi's agreement, they stipulated thus: "Any
dispute arising from this agreement shall be filed in the courts of Quezon City." Is
Mario's choice of venue restricted to Quezon City?

Suggested Answer:
Mario’s choice of venue is not restricted to Quezon City, seeing as the words
“exclusive,” “shall only,” “to the exclusion of other courts,” were not included in the venue
stipulation. Hence, the venue stipulation cannot be seen as exclusively limiting the parties’
choices to Quezon City.

Written stipulations as to venue may be restrictive in the sense that the suit may be filed
only in the place agreed upon, or merely permissive in that the parties may file their suit not
only in the place agreed upon but also in the places fixed by law. As in any other agreement,
what is essential is the ascertainment of the intention of the parties respecting the matter. [Ley
Construction and Development Corporation, et al. v. Sedano, G.R. No. 222711, 23 August 2017]

As regards restrictive stipulations on venue, jurisprudence instructs that it must be

shown that such stipulation is exclusive. In the absence of qualifying or restrictive words, such
as "exclusively," "waiving for this purpose any other venue," "shall only" preceding the
designation of venue, "to the exclusion of the other courts," or words of similar import, the
stipulation should be deemed as merely an agreement on an additional forum, not as limiting
venue to the specified place. [Ley Construction and Development Corporation, et al. v. Sedano, G.R.
No. 222711, 23 August 2017]

Mario failed to file a reply to the Answer with Counterclaim of Luigi. Luigi filed a
Motion to Declare in Default against Mario praying for judgment on the pleadings.
Mario opposed the motion alleging that he did not have to file a reply since all the new
matters alleged in the Answer are deemed Controverted.

Q.1(c). Should Mario be declared in default?

Suggested Answer:
Yes, Mario should be declared in default for failure to answer Luigi’s Counterclaim .

Following Rule 9, Section 3 of the 1997 Rules of Civil Procedure, if a defendant fails to
answer the counterclaim, then upon motion of plaintiff, the defendant may be declared in
default. [Francisco Motors Corporation v. Court of Appeals, G.R. No. 100812, 25 June 1999]

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Q.1(d). If Mario is declared in default, should judgment on the pleadings be granted?

Suggested Answer:
No, If Mario is declared in default, judgment on the pleadings should NOT be granted.
This is because Mario’s failure to file an answer to Luigi’s counterclaim does not constitute a
failure to tender an issue, nor an admission of the material allegations of the adverse party's
pleading [Rule 34, Section 1].

Rather, the effect of a declaration of default is that the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. [Rule 9, Section 3]

II. Batman sued Robin for the collection of a sum of money. Summons was issued
and the Process Server filed a Return stating that summons was attempted to be served
on Robin but he could not be found at his home address so summons was served on the
security guard of the subdivision.

Q.2(a). Was there a valid substituted service of summons on Robin?

Suggested Answer:
No, there was no valid substituted service of summons on Robin when summons were
attempted to be served on him by serving the security guard with served summons. This is not
proper substituted service under Rule 14, Section 7.

If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons
at the defendant's residence with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant's office or regular place of business with some
competent person in charge thereof [Rule 14, Section 7]. The security guard of the subdivision
was not competent to receive the summons on behalf of Robin.

Q.2(b). If Robin cannot be located, how may the court acquire jurisdiction over Robin?

Suggested Answer:
If Robin cannot be located, the court may acquire jurisdiction over him through service
of summons, after leave of court is granted, by publication in a newspaper of general circulation
and in such places and for such time as the court may order, as provided under Rule 14, Section
14 of the Rules of Court. Rule14, Section 14 provides that:

Service upon defendant whose identity or whereabouts are unknown. — In any action
where the defendant is designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order. 

Judgment by default was rendered against Robin after he was declared in default.

Q.2(c). Enumerate all the remedies, cumulative and alternative, available to Robin to
question the judgment. Discuss each remedy stating the grounds on which each may be
granted, the period for availment, and the proper court where it may be filed.
Suggested Answer:

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To question the judgment of default rendered against Robin, he may resort to either of
the following remedies:

File a Motion to Lift Order of Default - A party declared in default may at any time
after notice thereof and before judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense. In such case, the order of default
may be set aside on such terms and conditions as the judge may impose in the interest of justice.
[Rule 9, Section 3(b)]

Apart from a motion to lift order of default, other remedies are available to a defaulted
defendant even after judgment has been rendered. Thus, if judgment had already been
rendered but has not yet become final and executory, an appeal asserting that the judgment was
contrary to the law or to the evidence,  or a motion for new trial under Rule 37, may be filed. In
the case of the latter, the same affidavits as are required in a motion to lift order of default must
be attached.  If judgment has become final and executory, a defaulted defendant may file a
petition for relief from judgment under Rule 38. Still, should the defaulted defendant fail to
file a petition for relief, a petition for annulment of judgment [under Rule 47] on the ground of
lack of jurisdiction or extrinsic fraud remains available. [Sps. Benedit v. Ong, G.R. No. 205249, 15
October 2014]

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CRIMINAL PROCEDURE

Multiple Choice:

1. Jay was arrested without a warrant for theft of a mobile phone which he insisted was
his. Before he was subjected to inquest proceeding, he asked for a preliminary
investigation but refused to sign a waiver of the provisions of Article 125 of the Revised
Penal Code in the presence of his counsel. The inquest prosecutor must then –

a. proceed with the inquest even over objection of Jay’s counsel.

b. grant the request for preliminary investigation conditioned upon Jay’s being able
to post bail.
c. forego with inquest and submit all records with the inquest to the handling
prosecutor for filing of information.
d. grant the request for preliminary investigation conditioned on Jay’s being made
to sign the Article 125 waiver by his counsel.

2. A valid information includes all of the following except –

a. allegations that the offense was committed or some elements occurred at a place
within the jurisdiction of the court.
b. actual date of the crime was committed.
c. particular allegations on where the crime was committed.
d. the description of a single offense for which a single penalty is imposed.

3. An accused convicted of a crime which carries the penalty of imprisonment of more than
six (6) years may be denied bail or his bail may be cancelled for any of the following
reasons except –

a. he is a habitual delinquent.
b. the court social worker’s report indicates that he is a pedophile.
c. he refused to surrender his passport to the court before arraignment even when
required to do so.
d. he was previously convicted for a lighter offense but did not complete his
probation and as a result had to serve the remainder of his sentence in jail.

4. When the accused fails to appear at trial despite notice, the court must immediately

a. render judgment convicting the accused based on the prosecution’s evidence.

b. consider the bond forfeited in favor of the government and direct the bondsman
to produce the accused within thirty (30) days.
c. cause the bond to be forfeited in favor of the government and issue a warrant
for the arrest of the accused.
d. issue a warrant of arrest and archive the case in the meantime.

5. The right against self-incrimination may be invoked when the law enforcement
authorities –

a. ask for a sample of your handwriting.

b. request to run a comb through your hair.
c. ask you to breathe into a breathalyzer.

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d. takes your picture.

True or False
(If false, please underline the wrong word or phrase and supply the correct word or phrase to make the
sentence correct)

1. Except where the accused is charged with a capital offense , he may apply for bail after
his arraignment.

Suggested answer: False. An accused charged with a capital offense may still apply for
bail. In fact, under Rule 114, Section 7, bail shall be denied to said accused only upon
showing by plaintiff during the bail hearings that evidence of guilt is strong.

2. After the criminal action has been commenced, the separate civil action arising therefore
may be instituted but the court in its discretion may suspend the same if a prejudicial
question exists.

Suggested answer: False. Rule 111, Section 1 states that when a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted therein. Rule 111, Section 2 further states that after
the criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action. Hence,
no separate civil action arising from the crime may be instituted. Moreover, a prejudicial
question presupposes that the civil action was filed before the criminal action.

3. No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority of the provincial or city prosecutor or the
Ombudsman or his deputy.

Suggested answer: True. This is stated under Rule 112, Section 4.

4. When a person is lawfully arrested without a warrant involving an offense which

requires a preliminary investigation, the complaint or information may be filed by a
prosecutor who will inquire from the person if he is willing to be subjected to a
preliminary investigation.

Suggested answer: False. Under Rule 112, Section 7, the prosecutor should inquire from
the person arrested of his preference to undergo preliminary investigation before the
filing of the complaint or information.

5. The reservation of the right to institute separately the civil action shall be made during
the pre-trial conference under circumstances affording the offended party a reasonable
opportunity to make such reservation.

Suggested answer: True. This is provided under Rule 111, Section 1 which states that
“the reservation of the right to institute separately the civil action shall be made before
the prosecution starts presenting its evidence and under circumstances affording the
offended party a reasonable opportunity to make such reservation.”

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6. Where the civil action has been filed separately and trial in the criminal case has not yet
commenced, the court may, motu proprio consolidate the case so that they may be heard
together.

Suggested answer: False. Under Rule 111, Section 1, the consolidation of the criminal and
civil cases should be upon application with the court trying the criminal case. Hence, the
court cannot motu proprio order the consolidation of these two cases.

7. In the event the Secretary of Justice rules to reverse the resolution finding probable cause
filed by the provincial or city prosecutor, he will require the conduct of reinvestigation.

Suggested answer: False. Under Rule 112, Section 5, if the Secretary of Justice reverses or
modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties.

8. The failure of the accused to appear at trial without justification and despite due notice
shall be deemed a waiver of the right of the accused to present evidence.

Suggested answer: False. Under Rule 114, Section 2 (c), an accused who fails to appear at
the trial without justification and despite due notice shall be deemed a waiver of his
right to be present thereat. In such case, trial may proceed in absentia. The same rule is
stated under Rule 115, Section 1 (c).

9. The accused may waive his presence at trial except that he must appear at the
promulgation of judgment unless his presence is specifically ordered by the judge.

Suggested answer: True. This is stated under Rule 115, Section 1 (c).

10. An accused may be prosecuted again even if a motion to quash has been granted unless
his criminal liability has been extinguished or he is placed in double jeopardy.

Suggested answer: True. This is stated under Rule 117, Section 6.

Objective Questions:

A. As a general rule, the civil liability arising from a crime is impliedly instituted along
with the filing of the criminal action. What are the exceptions to this rule?

Suggested Answer:

Under Rule 111, Section 1, the exceptions to this rule are when the offended party: (a)
waives the civil action; (b) reserves the right to institute it separately; or (c) institutes the civil
action prior to the criminal action. In addition to the civil liability arising from crime, the
offended party may also file an independent civil action under Articles 32, 33, 34 and 2716 of the
Civil Code, provided that the offended party cannot twice recover damages for the same act.

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B. What is a prejudicial question? Give an example of a case that gives rise to a

prejudicial question and explain what is the consequence when such an issue arises.

Suggested Answer:

Rule 111, Section 7 states that there is a prejudicial question when: (a) the previously
instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.

An example of a case involving a prejudicial question is a civil case instituted to

question the election of a corporation’s directors and officers, and a subsequent criminal case
filed on behalf of the corporation by the directors and officers whose election is subject of the
prior civil case.

The resolution of the prior civil case is intimately related to the subsequent criminal action
because said civil case will determine whether the directors who filed the complaint on behalf of
the corporation were authorized to perform this corporate actions. Should it be determined in
the prior civil case that the election of the corporate officers was invalid, said directors had no
personality to file the subsequent criminal complaint on behalf of the corporation.

C. Differentiate the following:

1. The right of an accused to testify as a witness in his own behalf and the
accused’s right to be exempt from being compelled to be a witness against
himself.

Suggested answer: Under Rule 115, Section 1 (d), an accused has the right to testify as a
witness on his own behalf but subject to cross-examination on matters covered by direct
examination. However, while testifying in his own behalf, an accused’s constitutional
right against self-incrimination allows him to refuse to answer a specific question which
has a tendency to incriminate him for a crime. The right against self-incrimination may
be claimed only when the specific question is asked of the accused.

2. Preliminary investigation conducted by the prosecutor and the judicial

determination of probable cause issued by the judge.

Suggested answer: The preliminary investigation conducted by the prosecutor pertains

to a determination of whether there is probable cause to charge a person for a crime by
assessing whether there is enough evidence to support an Information being filed.

On the other hand, the judicial determination of probable cause by a judge

pertains to a determination of whether there is probable cause to issue a warrant of
arrest against a person charged with a crime.  The judge must satisfy himself that based
on the evidence submitted, there is necessity for placing the accused under custody in
order not to frustrate the ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.

3. Filing of a separate civil action arising from the commission of an offense and
filing an independent civil action under Articles 32, 33, 34 and 2716 of the Civil
Code.

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Suggested answer: These two kinds of civil actions differ on the consequences of the
filing thereof vis-à-vis the criminal action.

A separate civil action arising from the commission of an offense which was filed
before the criminal action shall be suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until final judgment is rendered in the
criminal action. Meanwhile, after the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until final judgment has been entered
in the criminal action.
 
On the other hand, an independent civil action filed pursuant to Articles 32, 33,
34 and 2716 of the Civil Code may be filed before or after the commencement of the
criminal action. This independent civil action will proceed regardless of the status of the
criminal action, and shall be proved only by a preponderance of evidence.

4. Inquest and preliminary investigation.

Suggested answer: An inquest is conducted when a person is lawfully arrested without

a warrant. It is an informal and summary investigation conducted by a public
prosecutor for the purpose of determining whether said person should remain under
custody and correspondingly be charged in court. If said person was arrested for an
offense where the penalty prescribed by law is at least four years, two months and one
day, he may express his preference to conduct a preliminary investigation provided that
he waives the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel.

A preliminary investigation is conducted after a complaint for an offense where

the penalty prescribed by law is at least 4 years, 2 months and 1 day is filed with the
prosecutor. After the complaint is filed, the respondent is furnished a copy of the
complaint, and is given a period of time to file his counter-affidavit. Thereafter, the
public prosecutor may require the complainant to file his reply-affidavit, and the
respondent to file his rejoinder-affidavit. Hence, unlike an inquest proceeding, a
preliminary investigation is neither informal nor summary in nature. Moreover, unlike
an inquest proceeding, the respondent is neither arrested nor detained at any time
during the preliminary investigation.

Essay Questions:

Problem I

Nico Roberto dela Rama Martin went to the police station. He informed
the Duty Desk Officer that he has just arrived from Strasbourg and was informed
by his household help that the police had been to his home to serve a warrant for
the arrest of "Nico Rodolfo dela Rama Martin" who was his brother. Nico
Roberto showed his Passport and his and his brother's birth certificates to the
Duty Desk Officer to prove that he was not the "Nico Rodolfo dela Rama
Martin" subject of the warrant of arrest. The police told Nico Roberto to wait.
After 2 hours, Nico Roberto was booked and placed behind bars.

Q. What remedy/ies will you resort to as counsel for Nico Roberto?

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Suggested Answer:
As counsel for Nico Roberto, I will file an application for the issuance of a writ of habeas
corpus under Rule 102 of the Rules of Court. Except as otherwise expressly provided by law,
the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which
any person is deprived of his liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto. [Rule 102, Section 1]

In case of imprisonment or restraint by an officer, the writ shall be directed to him, and
shall command him to have the body of the person restrained of his liberty before the court or
judge designated in the writ at the time and place therein specified. In case of imprisonment or
restraint by a person not an officer, the writ shall be directed to an officer, and shall command
him to take and have the body of the person restrained of his liberty before the court or judge
designated in the writ at the time and place therein specified, and to summon the person by
whom he is restrained then and there to appear before said court or judge to show the cause of
the imprisonment or restraint. [Rule 102, Section 2]

Problem II

Karl was charged with Malicious Mischief for etching his initials on the hood of
his best friend Carlo's brand new car with a knifetip. Because Karl apologized
and promised to pay for the damage to Carlo's car in installments. Carlo and
Karl executed an amicable settlement of the civil aspect of the case before the
Philippine Mediation Center Unit as part of pre-trial proceedings in the case. For
this reason, Carlo agreed not to testify against Karl anymore. Upon Karl's
counsel's motion, the trial court dismissed the case on June 25, 2017, but only
provisionally subject to Karl's full compliance with the settlement terms. On
October 8, 2018, Carlo's counsel, with the conformity of the Public Prosecutor,
filed a Motion to Revive the case due to the non-payment by Karl of the balance
of the installments for the damaged car.

Q. Rule on the Motion to Revive, considering that the case has both a criminal
and civil aspect.

Suggested Answer:
The case against Karl for Malicious Mischief can no longer be revived on 8 October 2018
considering that more than one (1) year has passed since the provisional dismissal of the case on
25 June 2017.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the
order without the case having been revived.  [Rule 117, Section 8] The penalty for the charge of
Malicious Mischief, if the value of the damage caused exceeds Php1,000, is arresto mayor in its
minimum and medium periods. Hence, the case could have only been revived if it was done
one (1) year from 8 October 2018.

However, this dismissal is without prejudice to civil remedies for the violation of the
Compromise Agreement between Karl and Carlo. Carlo can file a case for against Karl for
violation of the Compromise Agreement, and to recover the balance of the installments for the
damaged car, seeing as though a compromise agreement is a contract between the parties,

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which if not contrary to law, morals or public policy, is valid and enforceable between them.
[Sps. Abinujar and Lana v. Court of Appeals, G.R. No. 104133, 18 April 1995]

Problem III

Candice, Beth, Juls, Idel, and Grace were fed up with their officemate,
Marivic. Marivic has had separate altercations with each of them and they were
unanimous in their sentiment that Marivic should not last any longer in their
office. In their social media posts, the 5 gjrls, without naming Marivic, and
referring to her only as "the she devil," recounted every little story depicting
Marivic as "evil," "despicable," "corrupt," "walanghiya" "social climber," and
"doble cara" They also posted a photograph of a woman digitally altered to cloak
her in all black and with her face in shadow, with the caption "Who is the she
devil?" under. They then invited readers to guess the identity of the woman in the photograph.
Many commented on the posts of the 5 girls, some guessed at
the identity of the woman in the photograph, others recounted similar stories,
hut the majority expressed sympathy for the 5 girls and outrage at the conduct of
Marivic. There were many who angrily threatened Marivic and called for her
resignation.

Marivic brought cases against the 5 girls for violations of the Cybercrime
Law, specifically for Cyber Bullying and Cyber Libel, Conspiracy was alleged
against the 5 girls.

The prosecution filed a Motion to Discharge Idel as State Witness, alleging

that Idel was the least guilty since she never posted anything but was merely
tagged by the 4 other girls in the subject posts. Marivic opposed the motion on
the ground that there was no necessity for the discharge as the commission of
both offenses were directly evidenced by the social media posts which were
available publicly. Moreover, Idel has already been previously convicted for
Violation of BP Big. 22.

Q.1. Rule on the motion.

Suggested Answer:
The prosecution’s Motion to Discharge Idel as state witness should be denied.

An accused can only be discharged as state witness, among others, if the following
elements are satisfied:
1) There is absolute necessity for the testimony of the accused whose discharge is
requested;
2) The is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
3) The testimony of said accused can be substantially corroborated in its material
points;
4) Said accused does not appear to be the most guilty; and
5) Said accused has not at any time been convicted of any offense involving moral
turpitude.

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Idel was previously convicted for violation of B.P. 22, which is considered as a crime
involving moral turpitude. [Wilkie v. Atty. Limos, A.C. No. 7505, 24 October 2008] Hence, Idel is
not qualified to be discharged as a state witness.

Q.2. Assume that the trial court granted the motion and discharged Idel as a
state witness, what is the prosecution's remedy to question the trial court's
action, and on what ground/ s?

Suggested Answer:
If Idel is discharged as a state witness by the court, the remedy to question the trial
court’s action is by filing a petition for certiorari under Rule 65 with the Court of Appeals,
following the hierarchy of courts, based on the trial court’s grave abuse of discretion.

When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. [Rule 65, Section 1]

Q.3. Assume that the reviewing court found that the trial court did err in
granting the Motion to Discharge Idel as State Witness. May Idel still be
prosecuted as a co-conspirator of the 4 other girls?

Suggested Answer:
Yes, Idel can still be prosecuted as a co-conspirator of the 4 other accused if it is found
that the court erred in granting the Motion to Discharge her as state witness.

Since the order discharging Idel as a state witness is void, she shall not be allowed to
testify as a state witness. Her failure to testify against the other accused will not render her as
acquitted.

The order indicated in the preceding section (Rule 119, Section 17) shall amount to an
acquittal of the discharged accused and shall be a bar to future prosecution for the same offense,
unless the accused fails or refuses to testify against his co-accused in accordance with his sworn
statement constituting the basis for the discharge. [Rule 119, Section and 18]

In any case, the order declaring Idel’s acquittal is likewise void.

Problem IV

Ding, Zaldy and Jeff got into a Fistfight over the Ateneo-UP basketball
championship game. Because Ding and Zaldy ganged up on Jeff, Jeff sustained a
blackeye and a bruised jaw. Jeff charged Ding and Zaldy with Slight Physical
Injuries and the 2 were convicted.

Q.1. What are the options available to Ding and Zaldy at this point?

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Suggested Answer:
Ding and Zaldy may file an appeal [Rule 122, Section 1], or a motion for new trial or a
motion for reconsideration [Rule 121, Section 1] with the Regional Trial Court. The court shall
grant a new trial on any of the following grounds:
a) The errors of law or irregularities prejudicial to the substantial rights of the accused have
been committed during the trial;
b) The new and material evidence has been discovered which the accused could not with
reasonable diligence have discovered and produced at the trial and which if introduced
and admitted would probably change the judgment. [Rule 121, Section 2]

On the other hand, the court shall grant reconsideration on the ground of errors of law
or fact in the judgment, which requires no further proceedings. [Rule 121, Section 3]

Q.2. Assume that only Ding opted to appeal his conviction, but the
reviewing court affirmed his conviction. What are the remedies of Ding to seek a
reversal of his conviction?

Suggested Answer:
The remedy of Ding to seek a reversal of his conviction by the reviewing court would be
to file a petition for review under Rule 42 with the Court of Appeals.

The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42. [Rule 122,
Section 3] Considering that the Municipal Trial Courts and the Municipal Circuit Trial Courts
have exclusive original jurisdiction over a case for Slight Physical Injuries [B.P. Blg. 192, Section
31], the reviewing court is the Regional Trial Court, a conviction of which must be reviewed by
the Court of Appeals.

Q.3. Assume further that Ding was acquitted on further review. What would
be the effect of such acquittal on Zaldy?

Suggested Answer:
The acquittal of Ding on appeal would also have the effect of acquitting Zaldy.

An appeal taken by one or more of several accused shall not affect those who did not appeal,
except insofar as the judgment of the appellate court is favorable and applicable to the latter.
[Rule 122, Section 11]

Problem V

Georgie Porgie was charged with Plunder before the Office of the Ombudsman by Miss
Muffet. The Ombudsman furnished Georgie Porgie with a copy of Miss Muffet’s Complaint-
Affidavit and its annexes, as well as the Affidavits of her two witnesses, Georgie’s own twin
sister Georgia and their mother Georgina.

Georgie Pogies’s counsel Atty. Aesop filed an Omnibus Motion with the Ombudsman
requesting for first, copies of the counter-affidavits of Georgie Pogie’s co-respondents in the
Plunder compliant, Tweedledee and Tweedledum; second, for the examination and
photocopying of the two volume of the Stock and Transfer book of the Mother Goose Company
Inc.; and, third, for the setting of a clarificatory hearing. The
Ombudsman denied all prayers in the Omnibus Motion.

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Q. Was the Ombudsman's denial of the Omnibus Motion correct:

(a) On the first prayer for copies of Tweedledee's and Tweedledum's counter-affidavits?

Suggested Answer:
The Ombudsman’s denial of the request for copies of Tweedledee’s and Tweedledum’s
counter-affidavits is correct. In Reyes v. Office of the Ombudsman (G.R. No. 208243, 5 June 2017),
and Estrada v. Ombudsman (G.R. Nos. 212140-41, 21 January 2015), the Supreme Court ruled
that during preliminary investigation, the Ombudsman is not required to furnish a respondent
with the counter-affidavits of his co-respondents. The Section 4(b) of the Rules of Procedure of
the Ombudsman (Ombudsman A.O. No. 7) refers to are affidavits of the complainant and his
witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-
respondents are not part of the supporting affidavits of the complainant.

(b) On the second prayer for the examination and photocopying of the Stock and
Transfer Book?

Suggested Answer:
The Ombudsman’s denial of the request for examination and photocopying of the Stock
and Transfer Book is correct. The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been furnished and to copy them at his
expense (Rule 112, Section 3 of the Revised Rules of Criminal Procedure). Mother Goose Company
Inc.’s stock and transfer books are not indicated as evidence submitted by the complainant, thus
Georgie Porgie was not right to examine said books.

(c) On the third prayer to set a clarificatory hearing?

Suggested Answer:
The Ombudsman’s denial of the request for a clarificatory hearing is correct. Under the
Section 4(f) of the Ombudsman’s A.O. No. 7, it is the investigating prosecutor’s discretion to set
and conduct a clarificatory hearing, if upon his assessment there are facts material to the case
which the investigating officer may need to be clarified on. George Porgie cannot compel the
investigating officer to conduct a clarificatory hearing, during which the parties shall be
afforded the opportunity to be present but without the right to examine or cross-examine the
witness being questioned, especially in this case where he failed to show any material fact/s that
need/s clarification.

The, Ombudsman denied the motion for reconsideration of its Order of denial. Georgie
Porgie filed a Notice of Appeal from the Order denying his motion for reconsideration.

Q. Was the remedy availed of by Georgie Porgie correct?

Suggested Answer:
The remedy availed of is wrong. The Ombudsman’s order denying George Porgie’s the
motion for reconsideration is not subject to appeal. The proper remedy is for him to file a
petition for certiorari under Rule 65 of the Rules of Court, alleging grave abuse of discretion
amounting to lack or excess of jurisdiction in denying George Porgies Omnibus Motion.

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Problem VI

Peter Piper was standing at a street corner. Along came Little Boy Blue on a motorcycle
who stopped where Peter Piper stood and started talking to the latter. When Little Boy Blue
drew something from his right front pants' pocket and extended his hand in the act of giving
what he had taken from his pocket to Peter Piper, police officers suddenly swarmed around
the two. The police officers introduced themselves and asked the two if they would agree to
join the police in going to the police station for a conversation. Peter Piper and Little Boy Blue
agreed to go. Col. Mustard, the lead police officer, also asked Little Boy Blue and Peter Piper to
empty their pockets. The police confiscated from Little Boy Blue two small sachets of white
crystalline, substance (later tested and confirmed to be shabu), while the pockets of Peter Piper
yielded a tooter and 200 pesos. The police then advised the two of their Miranda rights.

On the same day, Little Boy Blue and Peter Piper were brought to the Office of the City
Prosecutor for inquest proceedings. The following morning, Little Boy Blue was charged with
Illegal Sale of shabu, while Peter Piper was charged with Illegal Possession of drug
paraphernalia, both under Republic Act No. 9166.

Little Boy Blue's counsel filed a Motion .to Quash the Information against him on
ground of illegality of his arrest and the subsequent seizure of his personal possessions. The
public prosecutor opposed the motion on the following grounds: (a) illegality of arrest was not
one of the grounds for a motion to quash; (b) the arrest of Little Boy Blue was a valid
warrantless arrest because he was caught in flagrante delicto in the act of selling shabu; and, (c)
the arrest was done in "hot pursuit".

Q. Rule on each argument of the prosecution.

Suggested Answer:
The alleged illegality of the arrest assails the court’s jurisdiction over the person of the
accused. Thus, contrary to the prosecution’s claim, the supposed illegality of the arrest Little
Boy Blue and Peter Piper is a valid ground for a motion to quash under Rule 117, Section 1(c),
which provides that the complaint or information may be quashed on the ground that “the
court trying the case has no jurisdiction over the person of the accused.

The arrest of the accused is not a case of a valid case of a warrantless arrest in flagrante
delicto. Under Rule 113, Section 5(a) of the Rules of Criminal Procedure, a warrantless arrest
may be effected by a police officer or a private person when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an offense. [F]or a
warrantless arrest of in flagrante delicto to be affected, "two elements must concur: (1) the person
to be arrested must execute an overt act indicating that he [or she] has just committed, is
actually committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer." [People v. Cogaed, 740 Phil. 212, 238 (2014)]

In this case, however, the police officers did not have any evidence, much less, reason to
believe that an offense is being committed in their presence just because Little Boy Blue “drew
something” from his pocket and extended his hand as if to hand over something to Peter Piper.

The arrest of the accused is also not a case of a valid “hot pursuit” warrantless arrest.
Under Rule 113, Section 5(b) of the Rules of Criminal Procedure, a warrantless arrest may be
effected by a police officer or a private person “when an offense has just been committed, and
he has probable cause to believe based on personal knowledge of facts or circumstances that the

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person to be arrested has committed it.”

Here, again, there is no showing that (i) an offense has just been committed; and (ii) the
police officers had probable cause to believe based on personal knowledge of facts or
circumstances that Little Boy Blue and Peter Piper have just committed an offense. Necessarily,
the seizure of the items against them are illegal and inadmissible.

For his part. Peter Piper filed a Motion for Preliminary Investigation with Motion to Defer
Arraignment. The judge denied Peter Piper's motions for being baseless.

Q.(a) Was the judge correct in denying Peter Piper's motion for a preliminary
investigation?

Suggested Answer:
No, the judge was mistaken in denying the motion for preliminary investigation. Under
the A.M. No. 15-06-10-SC, or the Revised Guidelines for Continuous Trial of Criminal Cases, such
motion is a meritorious motion. There is no showing that accused filed the motion beyond the
reglementary period of 5 days from notice. Further, the court should have at least considered
the fact that the warrantless arrest was based on the police officers’ claim that Little Boy Blue
“drew something” from his pocket and extended his hand as if to hand over something to Peter
Piper. In this regard, due process dictates that Little Boy Blue and Peter Pipers side should be
heard through the filing of their counter-affidavits and supporting evidence.

Q.(b) Was the judge correct in denying Peter Piper's motion to defer arraignment?

Suggested Answer:
Yes, as long as the motion for preliminary investigation has no basis. Under Rule 116,
Section 11, arraignment may be deferred only on the following grounds: (a) unsound mental
condition of the accused; (b) the existence of a prejudicial questions; and (c) the pendency of a
petition for review before the DOJ or the Office of the President.

It may be argued, however, that should the court grant accused’s motion for preliminary
investigation as above explained, considering that it is a meritorious motion under the Revised
Guidelines, necessarily the arraignment may be deferred pending the resolution of the
preliminary investigation ordered by the court itself.

Problem VII

On motion for reconsideration, the judge granted Peter Piper's motion for preliminary
investigation. The judge also suspended the proceedings in both the cases against Peter Piper
and Little Boy Blue. It was only 10 months later that the Office of the City Prosecutor came out
with a Resolution affirming the finding of probable cause against Peter Piper. The public
prosecutor thus filed a Motion to Set the Cases for Arraignment. Little Boy Blue opposed the
motion and moved instead for the dismissal of the case against him on ground of violation of
his right to speedy trial.

Should the judge grant or deny Little Boy Blue's motion to dismiss?

Suggested Answer:
No. The judge should deny the motion to dismiss on the ground of violation of
accused’s right to speedy trial because there is no undue delay in the proceedings.

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Delays per se are understandably attendant to all prosecutions and are constitutionally
permissible, with the monition that the attendant delay must not be oppressive. Withal, it must
not be lost sight of that the concept of speedy disposition of cases is a relative term and must
necessarily be a flexible concept.

Hence, the doctrinal rule is that in the determination of whether or not that right has
been violated, the factors that may be considered and balanced are the length of delay, the
reasons for such delay, the assertion or failure to asse1i such right by the accused, and the
prejudice caused by the delay (Cagang v. Sandiganbayan, G.R. No. 206438, 31 July 2018). In this
case, the resolution of the Office of the City Prosecutor, which was issued 10 months after the
judge granted accused’s motion for preliminary investigation, does not constitute undue delay,
and the such delay was not attributable to the fault of plaintiff.

Problem VIII

Nico was charged with Homicide. His counsel, Atty. Dirty Harry, filed a Motion for
Judicial Determination of Probable Cause with the Regional Trial Court of Makati City, where
the Information was filed. To avoid arrest, Nico went to the Regional Trial Court of Bulacan, his
place of residence, and postal bail.

As the Makati Court, act on the Motion for Judicial Determination of probable Cause.

Suggested Answer:
The Motion for Judicial Determination of Probable Cause is denied. Under A.M. No. 15-
06-10-SC, or the Revised Guidelines for Continuous Trial of Criminal Cases, a Motion for Judicial
determination of probable cause is a prohibited motion that shall be denied outright.
Furthermore, considering that Nico already posted bail, which is tantamount to voluntary
surrender, it is futile for the court to even consider his Motion as it already acquired jurisdiction
over his person (Inocentes v. People, G.R. No. 205963-64, 7 July 2016, citing Cojuangco, Jr. v.
Sandiganbayan, G.R. No. 134307, 21 December 1998, 300 SCRA 367).

As the Bulacan Court, should you approve the bail of Nico?

Suggested Answer:
The bail should be approved by the RTC Bulacan. The general rule is that bail should be
posted in the court where the case is pending. Rule 114, Section 17 of the Rules of Criminal
Procedure also provides that if the accused is arrested in the province, city, or municipality
other than where the case is pending, accused may apply for or post or bail in the RTC or MTC
of said place as the case may be.

While the provision pertains to cases where accused is arrested, it should also cover
cases of voluntary surrender, where the State is relieved of the expense and trouble for
accused’s search and capture. Besides, the accused has the right to bail since the crime of
homicide is a bailable offense.

Assume that the Bulacan Court did not approve the bail of Nico, as Atty. Dirty Harry,
was should your next step be towards securing the temporary liberty of Nico during the
pendency of the case?

Suggested Answer:

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As counsel for Nico, I would have him post bail with the Makati Regional Trial Court
(RTC) because the case is pending before the Makati RTC. Upon filing posting the appropriate
bailbond and a written undertaking, among others, showing compliance with the requirements
of section 2 of this Rule 114, then Nico shall be discharged from custody (Rule 114, Section 17 and
Section 14 of the Rules of Criminal Procedure).

Problem IX

Arraignment was set by the Makati Court. Atty. Dirty Harry files an Omnibus Motion
(for Suspension of Arraignment and to Quash Information) on the grounds of the pendency of
Nico’s Petition for Review with the Department of Justice and double jeopardy. Atty. Dirty
Harry argues that since the DOJ has yet to resolve the petition for Review, the arraignment
should be deferred in order not to render the review moot. Additionally, he claims that Nico
has been previously charged for the very same offense before the Bulacan Court, but the case
was dismissed because the situs criminis is in Makati City
Should suspension of arraignment be granted due to the pendency of the Petition for
Review with the DOJ?

Suggested Answer:
Yes. The suspension of arraignment should be granted. Under Rule 116, Section 11 of the
Revised Rules of Criminal Procedure, the arraignment shall be suspended when a petition for
review of the resolution of the prosecutor is pending at either the Department of Justice (DOJ)
or the Office of the President, provided, that the period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the reviewing office. Nico’s pending Petition
for Review before the DOJ warrant the suspension of his arraignment for a period not exceeding
60 days.

Should the Information be quashed on ground of double jeopardy?

Suggested Answer:
No. The Information may not be quashed on ground of double jeopardy. Double
jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise
terminated without the express consent of the accused (Dimayacyac v Court of Appeals, G.R. No.
136264, 28 May 2004).

Double jeopardy does not lie on the basis of the Bulacan Court’s dismissal on the
basis. The dismissal by the Bulacan Court, on the ground of situs criminis, does not create a first
jeopardy because (i) it is not a court of competent jurisdiction since the homicide occurred in
Makati, not in Bulacan; and (ii) there was no showing that the dismissal was after arraignment
and after a valid plea was entered.

If the ground invoked in a motion to quash is that the facts charged do not constitute
and offense, what is the proper court action?

Suggested Answer:
If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment. The
motion shall be granted if the prosecution fails to make the amendment, or the complaint or
information still suffers from the same defect despite the amendment (Rule 117, Section 4 of the
Revised Rules of Criminal Procedure).

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Will the quashal of an Information act as a bar to another prosecution for the same
offense?

Suggested Answer:
An order sustaining the motion to quash is not a bar to another prosecution for the same
offense unless the motion was based on the grounds that (a) the criminal action or liability has
been extinguished; and (b) the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his express
consent (Rule 117, Section 6, in relation to Section 3, of the Revised Rules of Criminal Procedure).

Problem X

Before the scheduled date of arraignment, Prosecutor Gadoink filed a Motion to Amend
Information to change the charge to Murder, having received additional evidence pointing to a
premeditated plan to kill the victim, Serena, and to implead 2 additional accused, Pico and Jico.
Atty. Dirty Harry vehemently opposed the motion, citing the substantive change which will
result in exposing his client to the possibility of being meted a higher penalty.

Rule on the motion to amend.

Suggested Answer:
The motion to amend is granted. A complaint or information may be amended, in form
or in substance, without leave of court, at any time before the accused enters his plea (Rule 110,
Section 14 of the Revised Rules of Criminal Procedure). The prosecutor file the motion to amend
information before the arraignment or before the accused entered his plea. Therefore, the
prosecution, without leave of court, may file a motion to amend the information in form or in
substance.

The Prosecutor accompanied the motion to amend with a Motion to Discharge Jico as a
State Witness.

What conditions should be satisfied in order to justify the grant of the motion to
discharge Jico as State witness?

Suggested Answer:
The following conditions should be satisfied in order to justify the grant of the motion to
discharge Jico as a State witness:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
(Rule 119, Section 17 of the Revised Rules of Criminal Procedure)

Problem XI

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Assume that Jico was discharged as a State witness. He executed an Affidavit narrating
in detail the plan to commit the killing of Serena and its actual execution. Unfortunately, Jico
was unable to testify in court because he received numerous death threats which caused him to
fear for his life and go into hiding. The Prosecutor was forced to rest the State’s case without
Jico’s open court testimony.

What will be the legal effect of Jico’s failure to testify in court?

Suggested Answer:
The legal effect of Jico’s failure to testify is that his discharge as a state witness shall not
be a bar for future prosecution for the same offense. The order indicated under Rule 119, Section
17 shall amount to an acquittal of the discharged accused and shall be a bar to future
prosecution for the same offense, unless the accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting the basis for his discharge (Rule
119, Section 18 of the Revised Rules of Criminal Procedure).

Problem XII

When a representative of the COA and the Provincial Governor’s Office paid a visit
upon Dimacabilang because he failed to respond to several letters asking him to explain the
discrepancy, he immediately submitted to them a written response denying any knowledge
about the loss of Php20,000.00, claiming the shortage existed even during the time of his
predecessor but he also proposed a plan to pay for the Php30,000.00 he admitted to have
appropriated for himself so that he would pay the entire shortage within two years on a salary
deduction scheme.

The Provincial Governor’s Office and COA submitted the written response to the Office
of the Ombudsman-Mindanao and Dimacabilang was subjected to custodial investigation. He
was questioned for two straight days and no one was allowed to see him.

After two days, tired and exhausted, Dimacabilang admitted to the entire shortage.
Before he signed his extrajudicial confession, his rights were read to him and a lawyer from the
Public Attorney’s Office was present when he actually signed the same.

All the evidence obtained was submitted to the Office of the Ombudsman, where a
probable cause finding was made charging Dimacabilang with Malversation of Public Funds.

While the information was filed in court, the court chose to suspend Dimacabilang’s
arraignment indefinitely, upon motion of the accused, because at that time, he had filed a
Petition for Review with the Department of Justice.
Unfortunately, before the DOJ resolved to affirm the probable cause finding against the
accused, four years had passed. By that time, the accused had fully paid the claimed shortage of
Php30,000.00 through the salary deductions scheme he had earlier proposed. The case was set
for arraignment but the accused, along with applying for bail, filed a motion to dismiss the case
on grounds that his rights to a speedy trial and custodial investigation have been violated. He
also contended that since his custodial investigation was invalid, the extrajudicial confession he
was forced to sign was inadmissible in evidence, and therefore, he could not be convicted. He
further argued that no crime had been committed because he had paid off the shortage he was
held accountable for.

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Q.1. Based on all the grounds cited, will the Motion filed by accused be granted? Discuss
each ground raised and explain your answer.

Suggested Answer:

Dimacabilang’s motion to dismiss the case on the ground that his right to speedy trial
was violated should be granted. The court erred in suspending the proceedings indefinitely,
despite the express mandate under Rule 116, Section 11 that the period for suspension on the
ground of the pendency of a Petition for Review with the DOJ shall not exceed sixty (60) days.
Notably, it was plaintiff’s duty to move for the continuation of the criminal proceedings after
the 60-day period. Hence, the failure to proceed with the prosecution of Dimacabilang for four
years violated his right to speedy trial.

The violation of Dimacabilang’s rights under custodial investigation, on its own, will not
result in the dismissal of the case. Nevertheless, under Section 12(1) and (3), Article III of the
Constitution and R.A. No. 7438, the uncounseled extrajudicial admission he made during
custodial investigation shall be inadmissible in evidence. The presence of the PAO lawyer
during the signing of the written confession does not cure the violation of Dimacabilang’s
rights. In People v. Daniego (G.R. No. 103499, 29 December 1995) the Supreme Court ruled that the
lawyer assisting a person under custodial investigation should be present “from the beginning
to the end.”

Q.2. Do you agree with the position of the accused that he cannot be convicted? Why or
why not?

Suggested Answer:

While Dimacabilang may not be convicted based on his confession during custodial
investigation, the following admissions may be used against him: (a) in his written response to
the Provincial Governor’s Office and the COA, he admitted to have appropriated for himself the
amount of Php30,000.00; and (b) he proposed and thereafter paid the full amount of
Php30,000.00 which he appropriated for himself. Rule 130, Section 27 states that in criminal
cases, except those involving quasi-offenses or those allowed by law to be compromised, an
offer of compromised by the accused may be received in evidence as an implied admission of
guilt. In this case, the crime of malversation is neither a quasi-offense nor an offense allowed by
law to be compromised. Hence, these admissions may be used against Dimacabilang.

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SPECIAL PROCEEDINGS

Objective Questions:

A. When is the privilege of the writ of habeas corpus available?

Suggested Answer:
The writ of habeas corpus shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto. (Rule 102, Section 1 of the Rules of Court)

B. When is the privilege of the writ of amparo available?

Suggested Answer:
The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Section
1, the Rule on the Writ of Amparo, A.M. no. 07-9-12-SC, 25 September 2007)

C. When is the privilege of the writ of habeas data available?

Suggested Answer:
The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of the
aggrieved party (Section 1, the Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, 22 January
2008).

D. Discuss the individual’s right to informational privacy in the use of online social
networking sites.

Suggested Answer:
The concept of privacy has, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in former
Chief Justice Reynato S. Puno's speech, The Common Right to Privacy, where he explained the
three strands of the right to privacy, viz.: (1) locational or situational privacy; (2) informational
privacy; and (3) decisional privacy. Of the three, what is relevant to the case at bar is the right to
informational privacy — usually defined as the right of individuals to control information
about themselves.

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system's inherent vulnerability to attacks and intrusions, there is
more reason that every individual's right to control said flow of information should be
protected and that each individual should have at least a reasonable expectation of privacy in
cyberspace. Several commentators regarding privacy and social networking sites, however, all
agree that given the millions of OSN users, "[i]n this [Social Networking] environment, privacy

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is no longer grounded in reasonable expectations, but rather in some theoretical protocol better
known as wishful thinking." (Vivares v. St. Theresa's College, G.R. No. 202666, 29 September 2014)

Essay Questions:

Problem I

Juan and Juana are American citizens, but have been residing in the Philippines for more
than 30 years. Juan passed away and left a will where he bequeathed his entire estate to Juana,
save for a condominium unit in Rockwell, which he devised to their adopted son, Juanito.

Atty. Cruz and Atty. Santos were appointed joint executors. During Juan’s lifetime, the
two lawyers were his legal counsel. Juan’s will was admitted to probate and Atty. Cruz and
Atty. Santos took their oath and commenced with the administration of Juan’s estate
preparatory to distribution, accordance with Juan’s testamentary dispositions. Atty. Cruz,
however, passed away. Atty. Reyes, Atty. Cruz’s law partner, continued discharging Atty. Cruz’
duties as joint executors’ fee. Juanito objected. He argued that Atty. Santos alone was entitled, as
the death of Atty. Cruz ended the commission. In his reply to the opposition, Atty. Reyes
countered that since he performed acts which redounded to the benefit of the estate, and
benefitted both Juana and Juanito, they cannot deny him the fees. Moreso, as he was a law
partner of Atty. Cruz, it is their law partnership that should be deemed to have been appointed
as joint executor of Juan’s estate.

Rule on the claim of Atty. Reyes.

Suggested Answer:
Atty. Reyes’ claim is incorrect. Section 2, Rule 82 of the Rules of Court provides one of
the modes for replacing an administrator of an estate upon the death of an administrator is
when an executor or administrator dies, resigns, or is removed the remaining executor or
administrator may administer the trust alone, unless the court grants letters to someone to act with
him. If there is no remaining executor or administrator, administration may be granted to any
suitable person. Only Atty. Cruz was appointed as an executor and not his law office. Thus,
Atty. Juanito will become the sole executor. (Quasha Ancheta Peña and Nolasco Law Office v. LCN
Construction Corp., G.R. No. 174873, 26 August, 2008)

Problem II

Pedro and Petra owned a convenience store. Because they needed additional capital,
they borrowed P1M from ABC Bank and constituted a mortgage on their family home.

Pedro and Petra defaulted on their loan and ABC resorted to the extrajudicial
foreclosure of the mortgage.

A. Pedro and Petra sought to enjoin the auction sale of their family home, arguing
that it is exempt from execution. ABC Bank maintained that since the family home’s value
exceeded P5M because of the recent renovations introduced by Pedro and Petra using the loan,
the exemption cannot apply.

Is Pedro and Petra’s family home exempt from a forced sale?

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Suggested Answer:
No. Pedro and Petra’s family home is not exempt from a forced sale. Article 155 of the
Family Code explicitly provides that the family home shall be exempt from execution, forced
sale or attachment except for debts secured by mortgages on the premises before or after such
constitution (Vitug v. Abuda, G.R. No. 201264, 11 January 2016). In this case, since Pedro and Petra
mortgaged their family home, it is not exempt from forced sale.

B. No injunction was issued. Hence, the auction proceeded and the family home
was sold to ABC Bank as the highest bidder for the amount of P5M. Considering that the loan is
for P1M, ABC Bank brought a case for collection of Sum of Money against Pedro and Petra to
recover the deficiency of P5M.

Petra moved to dismiss the case on the ground that Pedro has, in the meantime, already
passed away. Invoking Section 6 Rule 86, which directs the filing of a claim for sum of money
based on a solidary obligation as a claim against the estate in the proceedings for the intestate
settlement of the estate of the deceased co-debtor.

Is Petra correct?

Suggested Answer:
No. Petra is mistaken because ABC Bank may proceed against either Pedro or Petra. The
Supreme Court ruled that in case of the death of one of the solidary debtors, he (the creditor)
may, if he so chooses, proceed against the surviving solidary debtors without necessity of filing
a claim in the estate of the deceased debtors. It is not mandatory for him to have the case
dismissed as against the surviving debtors and file its claim against the estate of the deceased
solidary debtor. For to require the creditor to proceed against the estate, making it a condition
precedent for any collection action against the surviving debtors to prosper, would deprive him
of his substantive rights provided by Article 1216 of the New Civil Code (Philippine National
Bank v. Asuncion, G.R. No. L-46095, 23 November 1977).

Problem III

Mario and Maria are childless. Their kasambahay Lolita confessed to them that she was
pregnant, but the father had run away and refused to acknowledge his responsibility. Mario
and Maria offered to adopt the child of Lolita in exchange for which, Lolita asked to be given
money to return to her home province and start her own business, to start anew. Upon the irth
of the child, they named him Marianito and declared him the legitimate child of Mario and
Maria in the Certificate of Live Birth.

Mario passed away when Marianito was 3 years old. Maria, after a year of mourning,
married Renato. Thereafter, Maria and Renato had 3 children in succession.

Because she loved Marianito and wished to ensure Marianito’s status as her legitimate
heir, Maria filed a petition for adoption. At that time, Marianito was 15 years old, and her
children with Renato were 7, 9 and 10 years old.

In support of the adoption, Maria submitted the written consent of Renato and their 10
year old daughter.

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Lolita opposed the petition for adoption. She claimed that Marianito was forcibly taken
away from her because Maria had found out that Marianito was really her lovechild with
Mario. Maria thus caused her to leave by threatening her with physical harm.

Maria countered that even assuming that it was true, Lolita has abandoned Marianito.

Should the petition be granted? Is it sufficient in form and substance?

Suggested Answer:
The petition for adoption should be denied.
 
First, under R.A. No. 8552, or the Domestic Adoption Act of 1998, as a general rule, husband
and wife shall adopt jointly. Here only Maria seeks to adopt Marianito.
 
Second, the separate consent of Marianito, the adoptee, and Lolita, the biological parent,
were not obtained, as mandated under Section 9(a) and (b) of R.A. No. 8552.

Third, since Lolita’s alleged abandonment of Marianito is put in issue, the adoption court
must first confront and resolve the same. In Cang v. Court of Appeals (G.R. No. 105308, 25
September 1998), the Supreme Court ruled that the issue of abandonment by the oppositor
natural parent is a preliminary issue that an adoption court must first confront. Only upon
failure of the Lolita to prove to the satisfaction of the court that she did not abandon her child
may the petition for adoption be considered on its merits.

Problem IV

Praxedes filed a petition for correction of entries in her Certificate of Live Birth under
Rule 108 of the Rules of Court, impleading her parents and the Civil Registrar. She prayed for
the correction of the following entries.

Address each of the followings prayers and rule on whether the petition should be
granted on each ground.

1. Her first name for “Praxedes” to “Filomena” because that is the name she has
used since birth and in all her school and other public records. Besides, Praxedes is a name that
she associates with a bad memory from her childhood.

Suggested Answer:
The prayer for the correction of her name from “Praxedes” to “Filomena” should be
denied. Change of first name is not covered under Rule 108. In Silverio v. Republic (G.R. No.
174689, 19 October 2007), the Supreme Court ruled that jurisdiction over applications for change
of first name is now primarily lodged with the aforementioned administrative officers, thus:

RA 9048 now governs the change of first name.  It vests the power and authority
to entertain petitions for change of first name to the city or municipal civil registrar or
consul general concerned. Under the law, therefore, jurisdiction over applications for
change of first name is now primarily lodged with the aforementioned administrative
officers. The intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in
the Civil Registry) of the Rules of Court, until and unless an administrative petition for
change of name is first filed and subsequently denied. It likewise lays down the

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corresponding venue, form and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not judicial.

2. Her date of birth from “July 25, 1969” to “June 25, 1969” this being merely a
clerical error.

Suggested Answer:
The prayer for the correction of changing date of birth from “25 July 1969” to “25 June
1969” should be denied. The correct remedy for correction of clerical or typographical error
regarding mistake in the entry of day and month in the date of birth is the administrative
remedy under R.A. No. 9048, as amended by R.A. No. 10172.

3. Her gender from “male” to “female” because she was born and is anatomically
female.

Suggested Answer:
The prayer for the correction of changing her gender from “Male” to “Female” should be
denied. The correct remedy for correction of clerical or typographical error regarding mistake in
the sex of the person is the administrative remedy under R.A. No. 9048, as amended by R.A.
No. 10172. In this case, Praxedes was born and is anatomically female, thus there was clearly a
clerical error as to the sex of Praxedes when her certificate of live birth states her gender to be
“Male.” Therefore, the action should be denied since the correct remedy is the administrative
remedy under R.A. No. 9048, as amended.

4. Her surname from “delos Santos,” the surname of her father, to “dela Rosa,” the
surname of her mother, because her parents were never married and her father has refused to
support her.

Suggested Answer:
The prayer for the change of surname from “delos Santos” to “dela Rosa” should be
granted. Correction of entry under Rule 108 is the proper remedy to change the family name. In
fine, when a petition for cancellation or correction of an entry in the civil register
involves substantial and controversial alterations including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of
Rule 108 of the Rules of Court is mandated (Republic v. Coseteng-Magpayo, G.R. No. 189476, 2
February 2011). Here, Praxedes strictly complied with Rule 108 as her parents and the local civil
registrar were impleaded in the action.

5. The Date and Place of Marriage of her parents from “April 1, 1966” to “Not
Married,” because her parents were never married.

Suggested Answer:
The prayer for the correction of marriage date from “1 April 1966” to “not married”
should be granted. Corrections of entries in the civil register including those on
citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, involve substantial
alterations. Substantial errors in a civil registry may be corrected and the true facts established
provided the parties aggrieved by the error avail themselves of the
appropriate adversary proceedings. (Onde v. Office of the Local Civil Registrar of Las Piñas City,
G.R. No. 197174, 10 September 2014). Here, the parents were impleaded by Praxedes, thus the
appropriate adversary proceedings were availed, and the court may correct the erroneous entry.

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Problem V

Maximo is obsessed with Candida. He follows Candida everywhere, both physically

and virtually. Candida is scared. She knows that Maximo is a very powerful warlord in their
town and is very well connected to both police and military men. She is also aware that Maximo
is facing a kidnapping case filed by the parents of his former mistress, who has gone missing.

Candida received a text message from Maximo stating: “I can no longer wait.
Tomorrow, you will be mine.”

May Candida file a petition for the issuance of a writ of Amparo against Maximo?

Suggested Answer:
No. Candida may not file a petition for the issuance of a writ of Amparo against Maximo
because her right to life, liberty and security is not threatened due to enforced disappearance or
extrajudicial killings. The petition for a writ of amparo covers extralegal killings and enforced
disappearances or threats thereof (Section 1, Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, 25
September 2007), which circumstances are not availing in this case.

Problem VI

Assume that Candida also filed a criminal case against Maximo for Grave Threats and
by virtue of a warrant issued by the court, Maximo was arrested.

Maximo filed a petition for a writ of habeas corpus addressed to the Jail Warden
directing him to bring Maximo to court and explain the cause of his detention. On the date set
for hearing, the Jail Warden appeared and submitted his return of the writ. The trial court
expunged the return and ordered the Jail Warden to file an answer, under pain of contempt.
Despite lapse of the period given, the Jail Warden did not file as answer. The trial court
rendered a judgment granting the petition and directing the release of Maximo.

1. Did the trial court err in issuing the writ to the Jail Warden, directing him to
appear and explain the cause of Maximo’s detention?

Suggested Answer:
No. The court is correct in issuing the writ to the jail warden. In case of imprisonment or
restraint by an officer, the writ shall be directed to him, and shall command him to have the
body of the person restrained of his liberty before the court or judge designated in the writ at
the time and place therein specified (Rule 102, Section 6 of the Rules of Court). The jail warden is
the officer restraining Maximo, and thus, he is the correct officer to whom the writ is issued.

2. Did the trial court err in requiring an answer and expunging the return?

Suggested Answer:
Yes. The trial court erred in requiring an answer and expunging the return. A court or
judge authorized to grant the writ must, when a petition therefor is presented and it appears
that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of
the court shall issue the writ under the seal of the court; or in case of emergency, the judge may
issue the writ under his own hand, and may deputize any officer or person to serve it (Rule 102,
Section 5 of the Rules of Court). Further, the Rule 102 requires a return to be filed, not an answer.

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3. Did the trial court err in rendering the judgment upon non-filing of the answer?

Suggested Answer:
Yes. The court or judge grants the writ and requires the officer or person having custody
of the person allegedly restrained of liberty to file a return of the writ. A hearing on the return
of the writ is then conducted. The return of the writ may be heard by a court apart from that
which issued the writ. Should the court issuing the writ designate a lower court to which the
writ is made returnable, the lower court shall proceed to decide the petition of habeas corpus (In
re Salibo v. Warden (G.R. No. 197597, 8 April 2015). Here, the court did not conduct the hearing
and proceeded to render judgment for non-filing of the answer, which is not allowed under
Rule 102. Thus, the court erred in rendering its judgment.

4. Did the trial court err in granting the privilege of the writ of habeas corpus?

Suggested Answer:
Yes. If it appears that the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge and that the court or judge had
jurisdiction to issue the process, the writ shall not be allowed (Rule 102, Section 4 of the Rules of
Court). Here, Maximo was arrested by virtue of a valid warrant of arrest, and thus, granting the
petition for the issuance of a writ of habeas corpus is erroneous.

Problem VII

Pedro Penduko filed a petition for correction of entries in his Certificate of Live Birth
before the Regional Trial Court (RTC) of Quezon City. Named as sole respondent was the Local
Civil Registrar of Quezon City. Pedro alleged that he is an illegitimate son of Jose Penduko and
Maria Makiling. However, his birth certificate states that his parents were married in Laguna on
December 23, 1989. His birth certificate also shows that his mother’s first name is Mariana and
that his date of birth is Aprill 11, 1991 when his true date of birth is April 10, 1992. Pedro thus
made the following prayer in his petition: (a) for the cancellation of the entry as to the date and
place of marriage of his parents, to be replaced by “NA”; (b) for the correction of his mother’s
first name from “Mariana” to “Maria”; and (c) for the correction of his date of birth from “April
11, 1991” to “April 10, 1992.”

The RTC dismissed the petition for insufficiency in form and substance.

Did Pedro avail of the correct remedy seeking the cancellation of the entry as to the
dated and place of marriage?

Suggested Answer:
Although Pedro correctly availed of the remedy of a Petition for Cancellation of the
Entry under Rule 108 of the Rules of Court, the court was correct in dismissing the petition for
his failure to notify interested parties because change as to the date and place of his parents’
marriage involves substantial and controversial alterations.

Jurisprudence provides that changes in the birth certificate which had the effect of
changing the civil status from legitimate to illegitimate must only be effected through an
appropriate adversary proceeding. Thus, a strict compliance with the requirements of Rule 108
of the Rules of Court is mandated. (Republic v. Lugsanay Uy, G.R. No. 198010, 12 August 2013)

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Did Pedro avail of the correct remedy seeking the correction of his mother’s first name?

Suggested Answer:
No. Pedro availed of the wrong remedy in seeking the correction of his mother’s first
name. Change of first name is not covered by Rule 108. In Silverio v. Republic (G.R. No. 174689, 19
October 2007), the Supreme Court ruled that jurisdiction over applications for change of first
name is now primarily lodged with the aforementioned administrative officers, thus:

Republic Act No. 9408 now governs the change of first name.  It vests the power
and authority to entertain petitions for change of first name to the city or municipal civil
registrar or consul general concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently denied. It
likewise lays down the corresponding venue, form and procedure. In sum, the remedy
and the proceedings regulating change of first name are primarily administrative in
nature, not judicial.

Did Pedro avail of the correct remedy seeking the correction of his date of birth?

Suggested Answer:
Yes. Pedro availed of the correct remedy in seeking the correction of his date of birth.
Correction of entry under Rule 108 is the correct remedy because the correction being sought is
substantial. R.A. No. 9048, as amended by R.A. No. 10172, excludes change of age of the
petitioner. Since changing the date of birth from “11 April 1991” to “10 April 1992,” Pedro’s age
will be changed. Hence, the appropriate remedy is a correction of entry action under Rule 108.

Problem VIII

Lam-ang and Urduja were husband and wife. They obtained a loan from Banco Adarna
in the amount of 3million pesos. They secured this loan with a real estate mortgage on their
farm and a chattel mortgage on their tractor. Due to La Niña, the crops in the spouses’ farm were
destroyed and they failed to meet their loan amortizations. Worse, their farmhand Juan Tamad
recklessly drove their tractor while intoxicated and run over the carabao of their neighbor
Bantugan, resulting in the carabao’s untimely demise. Due to stress over these developments,
Lam-and succumbed to a heart attack and was survived by Urduja and their minor twins,
Florante and Laura.

Urduja filed a petition for the settlement of the estate of Lam-ang with the Regional Trial
Court (RTC) of Quezon City Branch 1. She prayed for the issuance of Letters of Administration
in her favor. The estate court appointed Urduja as the Administration in her favor. The estate
court appointed Urduja as the administratrix of Lam-ang’s estate.

Prior to Lam-ang’s death but before summons could be served, Banco Adarna sued
Lam-ang and Urduja for Sum of Money and Replevin with the RTC Branch 2 Quezon City. It
prayed for (1) the payment of the loan obligation plus interest; and (2) the recovery of
possession of the tractor which was purchased using part of the loan of the spouses. The RTC

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Branch 2 dismissed the complaint on ground of the death of Lam-ang. It directed Banco Adarna
to file the case before the estate court.

On or about the same time, Bantugan sued Lam-ang, as owner of the tractor, and Juan
Tamad, as Lam-ang’s driver employee, for damages, in the sum of 1Million pesos, arising from
negligence that resulted in the death of Bantugan’s carabao. The RTC of Quezon City Branch 3
also dismissed the complaint and directed Bantugan to file his claim before the estate court.

Was RTC Branch 2 correct in dismissing the complaint for sum of money and replevin? If your
answer is YES, what is Banco Adarna’s remedy?

Suggested Answer:
RTC Branch 2 was correct in dismissing the complaint for sum of money and the
ancillary remedy of replevin against Lam-ang and Urduja.

The complaint for sum of money in this case is an action which does not survive the
death of the decedent as it is based on contract. Rule 86, Section 5 of the Rules of Court provides
that all claims for money against the decedent, arising from contract, express or implied,
whether the same be due, not due, or contingent must be filed within the time limited in the
notice; otherwise they are barred forever. Thus, the complaint for sum of money must be filed
against the estate of Lam-ang, otherwise it will be barred forever. Since the main action for sum
of money is dismissed, the ancillary remedy of replevin will likewise be dismissed.

Alternative Answer:
RTC Branch 3 was not correct in dismissing the the complaint for sum of money Banco
Adarna may proceed against Urduja, the surviving co-debtor. The Supreme Court ruled that in
case of the death of one of the solidary debtors, he (the creditor) may, if he so chooses, proceed
against the surviving solidary debtors without necessity of filing a claim in the estate of the
deceased debtors. It is not mandatory for him to have the case dismissed as against the
surviving debtors and file its claim against the estate of the deceased solidary debtor. For to
require the creditor to proceed against the estate, making it a condition precedent for any
collection action against the surviving debtors to prosper, would deprive him of his substantive
rights provided by Article 1216 of the New Civil Code (Philippine National Bank v. Asuncion, G.R.
No. L-46095, 23 November 1977).

Was RTC Branch 3 correct in dismissing the complaint for damages? If your answer is
YES, what is Bantugan’s remedy?

Suggested Answer:
RTC Branch 3 erroneously dismissed the action for damages. Rule 87, Section 1 of the
Rules of Court provides that no action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or administrator; but actions to
recover damages for an injury to person or property, real or personal, may be commenced
against him. The complaint for damages is based on quasi-delict and should be filed against
Urduja, the administrator Urduja, and not against the estate.

Assuming that Banco Adarna instead filed a claim against the estate of Lam-ang before
Branch 1 for the outstanding balance of the loan, what are its remedies in case it is unable to
collect the full value of its claim?

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Suggested Answer:
Banco Adarna will no longer have any remedy in case it is unable to collect the full value
of its claim. Rule 86, Section 7 of the Rules of Court provides that a creditor holding a claim
against the deceased secured by mortgage or other collateral security, may abandon the security
and prosecute his claim in the manner provided in Rule 86, and share in the general distribution
of the assets of the estate. Should the mortgagee choose to abandon the security, then it will lose
its right to foreclose the mortgaged property. In filing a claim against the estate, Banco Adarna
decided to abandon its security, thus it will no longer have any remedy if it is unable to collect
the full value of its claim.

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