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2021 MOCK BAR EXAMINATION

SUBJECT : REMEDIAL LAW
EXAMINERS : PART 1 | DEAN FERDINAND A. TAN
PART 2 | ATTY. MATTHEW RYAN MINA

PART 1.1

A is an employee of Asia Brewery Corporation for almost for forty (40)

years, and a member of ABC Cooperative. A obtained a loan from ABC
Cooperative in the amount of 2M payable upon his retirement. A filed his
retirement with Asia Brewery Corporation, and as such he is entitled to receive
a retirement separation package of 5M, less the amount of 2M he loaned from
ABC Cooperative which was requested and claimed by the Cooperative, but A
objected since it is a personal loan. A received the amount of 3M from Asia
Brewery Corporation since he cannot force the company to release the whole
amount of 5 M as his benefits without resolving his loan with ABC Cooperative.
Subsequently, after retirement A filed a labor case with the National Labor
Relations Commission against Asia Brewery Corporation for the payment of the
amount of 2M Pesos on his withheld retirement pay.

a) If you were the counsel for Asia Brewery Corporation, what would be
your best possible remedy? Why? Basis.

Suggested answer:

The employer may file a complaint for interpleader under Rule 62 in case
of conflicting claims between the employee on his separation package and the
claim of a cooperative for unpaid loan of the employee to determine who has a
better right over the said separation package.

Here, since both petitioner and the Cooperative claimed entitlement to

the withheld amount of P1,400,000.00, respondent appropriately filed a
Complaint for Interpleader with Consignation before Branch 55 of the RTC of
Mandaue City. Under Section 1, Rule 62 of the Rules of Court, a person may file
a special civil action for interpleader if conflicting claims are made against
him/her/it over a subject matter in which he/she/it has no interest. The action
is brought against the claimants to compel them to litigate their claims among
themselves.
(Trifon B. Tumaodos vs. San Miguel Yamamura Packaging Corporation, G.R. No.
241865, February 19, 2020)

PART 1.2

Mayor Tigas Ulo and the members of the Sangguniang Panglungsod of the
City of Pasaway passed an Ordinance approving the re-opening of its dumpsite
since they do not have sufficient open space to accommodate the garbage

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collected in the City. After proper clearance from the different government
offices, they reopened the dumpsite. After three (3) years of operation,
homeowners and business owners of their neighboring cities, namely Malugod
and Malumanay complained of the foul odor affecting the air their breathe and
they noted the appearance of flies in the area.

a) If you were the counsel of the complaining barangay, what would be

your legal remedy? Where will you file?

Suggested answer:
The remedy available to the complainants is a petition for issuance of writ
of kalikasan to be filed with either the Supreme Court or Court of Appeals
considering the health hazard of problem posed by the reopening of the
dumpsite and the environmental impact on the environment specially the Cities
of Malugod and Malumanay which is of such magnitude covering two or more
cities in violation of the right of its residents to a healthful and balanced ecology.
(Mayor Tomas R. Osmeña, in his capacity as City Mayor of Cebu vs. Joel Capili
Garganera, for an on his behalf, and in representation of the People of the Cities
of Cebu and Talisay, and future generations, including the unborn, G.R. No.
231164, March 20, 2018)

PART 1.3

A was charged with the crime of Alarm and Scandal before the MTC. After
trial he was convicted of the crime as charged, and he filed a Notice of Appeal,
but he failed to file the Memorandum of Appeal, hence the case was dismissed
by the RTC with prejudice. B a new counsel for A and filed a Motion for
Reconsideration stating that the failure to file the memorandum was due to her
problem with her sick wife which resulted to her death, as well as his problem
with his counsel who was also very ill during such time which make him unable
to file the same.

a) Is the dismissal valid? Why? Basis.

Suggested answer:

No. The failure to file the memorandum of appeal is a ground for the RTC
to dismiss the appeal ONLY in civil cases. The same rule does not apply in
criminal cases, because Section 9(c) Rule 122, imposes on the RTC the duty to
decide the appeal “on the basis of the entire record of the case and of such
memoranda or briefs as may have been filed” upon the submission of the
appellate memoranda or briefs, or upon the expiration of the period to file the
same. (Jose Sanico vs. People of the Philippines, G.R. No. 198753, March 25, 2015,
BERSAMIN)

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PART 1.4

A resident of Manila filed a case against B who is a resident of Batangas

City for Collection of Sum of Money in the amount of 10M Pesos for a loan he
obtained from the former in the RTC of Manila. A through counsel C filed a
Motion for Leave of Court to allow the plaintiff to serve the summons to B which
was granted by the court. A went to Batangas City but cannot locate the place
of B, so he went back to Manila and submitted to the court an Affidavit of Service
stating that he was able to serve the summons to B. For failure of B to file his
answer Judge D declared him in default and an ex-parte presentation of
evidence was made by A through counsel C. During the said ex-parte
presentation of evidence, Judge D asked A as to how and to whom the summons
was served, and the manner of service, A through counsel C cannot answer the
questions. Doubtful, Judge D conducted an investigation and found out that A is
not telling the truth.

a) What would be the possible actions of the court under the Rules? Why?
Basis.

Suggested answer:

Sec. 2, Rule 14 states that “If the plaintiff misrepresents that the
defendant was served with summons, and it is later proved that no summons
was served, the case shall be:

1) Dismissed with prejudice;

2) The proceedings shall be nullified; and
3) The plaintiff shall be meted appropriate sanctions.

PART 1.5

A filed an Unlawful Detainer case before the MTC of Manila against B, C &
D by mere tolerance. After hearing judgment was rendered by the judge
ordering the defendants to vacate and pay A the amount of P300,000.00
representing reasonable fees for the use of the lot. B C & D filed an appeal but
failed to post a bond. A filed a motion for execution which was granted by the
court. Despite notice to vacate, defendants refused to vacate hence, the filing of
a writ of demolition. Before the demolition, BCD filed a petition for writ of
amparo due to the threatened violation of their right to life and security.

a) If you were the Judge, how would you rule on the petition?

Suggested answer:

I will deny the petition

The threatened demolition of a dwelling by virtue of a final judgment of

the court, which in this case was affirmed with finality, is not included among

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the enumeration of rights as stated in the above-quoted Section 1 for which the
remedy of a writ of amparo is made available. (Canlas vs. Napico, G.R. No.
182795, June 5, 2008)

The remedy available to the defendants is to perfect an appeal from the

decision of the Regional Trial Court and not through petition for writ of amparo,
and amparo is not a substitute for a lost appeal, neither of certiorari.

Also, the instant case involves forcible entry and does not involve extra-
legal killings or enforced disappearance.

PART 1.6

A filed for an unlawful detainer case before the MTC alleging that he is
the owner of a condominium unit leased by B by verbal agreement with a
monthly rental of P20,000.00. A sent a demand letter to B demanding the
payment of P220,000.00 representing rental arrears and to vacate the premises
within fifteen (15) days from receipt the same, but despite receipt B refused to
vacate. B failed to file an answer, hence A filed a Motion to Render Judgment
and the MTC considered the case submitted for decision. The judge dismissed
the case for lack of merit due to A’s failure to prove his ownership by
preponderance of evidence since there is no evidence attached to the complaint
in support of his cause of action against B.

a) Is the court correct in dismissing the case? Why? Basis.

Suggested answer:

No. Section 6 [of the Rules on Summary Procedure] is clear that in case
the defendant failed to file his answer, the court shall render judgment, either
motu proprio or upon plaintiff’s motion, based solely on the facts alleged in the
complaint and limited to what is prayed for. The failure of the defendant to
timely file his answer and to controvert the claim against him constitutes his
acquiescence to every allegation stated in the complaint. Logically, there is
nothing to be done in this situation except to render judgment as may be
warranted by the facts alleged in the complaint.

PART 1.7

A filed a complaint for Annulment of sale and damages before the RTC of
Manila against B. During trial, C counsel for A moved that they will be
presenting B as hostile witness which was objected to by D counsel for B on the
ground that he has not submitted his Judicial Affidavit, and therefore should not
be allowed to testify under the Judicial Affidavit Rule.

a) Is the contention of D correct? Why? Basis. (5 pts.)

Suggested answer:
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Section 5 of the JAR expressly excludes from its application adverse party
and hostile witnesses. For the presentation of these types of witnesses, the
provisions on the Rules of Court under the Revised Rules of Evidence and all
other correlative rules including the modes of deposition and discovery rules
shall apply. (Ng Meng Tam Vs. China Banking Corporation, G.R. No. 214054,
August 5, 2015)

PART 1.8

A filed a petition for habeas corpus against B for him to produce her
biological daughter and to return to her the custody over the child. Despite
efforts, the sheriff was unsuccessful in personally serving B copies of the writ.
B then filed a petition for guardianship over the child and A opposed the same
on the ground of litis pendentia then later on filed a criminal case for
kidnapping. Then A moved for the ex-parte issuance of writ of habeas corpus
before the RTC Caloocan which was granted by the court. The Court even
directed the sheriff to serve the alias writ upon B at the Office of the City
Prosecutor of Quezon City. In compliance, the sheriff served to B the Order as
well as the alias writ during the preliminary investigation for the kidnapping
case filed by A against him.

B filed a motion to quash the writ of habeas corpus and prayed for the
dismissal of the case on the ground that she was not served with summons,
hence the court did not acquire jurisdiction over his person, and the writ cannot
be enforced in Quezon City.

a) Is the contention of B correct? Why? Basis.

Suggested answer:

The contentions are not correct, on the following reasons, to wit:

a) First, service of summons is not required in a habeas corpus petition

either under Rule 102 or A.M. No. 03-04-04, the service of the writ of habeas
corpus is somehow equivalent to the service of summons and therefore, there
is valid acquisition of jurisdiction over the person of B.

b) Second, the writ can be enforced in a judicial region, and since Quezon
City and Caloocan City belongs to the same judicial region, the writ of habeas
corpus is enforceable in Quezon City.

PART 1.9

A was riding his motorcycle along EDSA when he was stopped by Col.
Bosita, a member of the Highway Patrol Group (HPG) since his motorcycle has
no plate number. Asked for his registration, he admitted that his LTO
registration is expired. Suspicious of the character and behavior of A during
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such confrontation, Col. Bosita arrested A for LTO violation and searched him
and found a plastic sachet containing shabu.

a) Is the search valid? Is the confiscated shabu admissible in evidence?

b) Is the confiscated shabu admissible in evidence?

Suggested answer:

a) No. In the very recent case of People v. Cristobal, the Court similarly
held that the search was unlawful because it was not preceded by a valid arrest.
As the traffic violations of A therein were only punishable by fine, the Court
ruled that there was no reason to arrest the accused. Here what Col. Bosita
should have done is to issue a traffic violation ticket, and, as a consequence, no
valid arrest preceded the search thereafter conducted. Accordingly, the Court
held that the accused therein must be acquitted as the evidence against him was
rendered inadmissible by the exclusionary rule provided under the
Constitution.

b) The case of Cristobal squarely applies to this case. There was likewise
no valid arrest to speak of in this case — as A’s traffic violations for are only
punishable by fine only — and there could thus be no valid "search incidental
to lawful arrest." Ultimately, A must be similarly acquitted, as the corpus delicti
of the crime, i.e., the seized drug, is excluded evidence, inadmissible in any
proceeding, including this one, against him. (Paulo Jackson Polangcos vs. The
People of The Philippines, G.R. No. 239866, 11 September 2019)

PART 1.10

A contracted B for the repair of his house in Manila in the amount of 400
Thousand Pesos and executed a Contract of Services. After the repair, A did not
pay the contract price due to financial difficulties due to Covid-19 pandemic. B
filed a case before the MTC of Manila for the recovery of the amount of the
contract and attached the evidence and his affidavit. A filed his verified
Response and interpose the defense that B did not attach his judicial affidavit.

a) Is the contention of A correct? Why?

Suggested answer:

No. It is clearly stated under Sec. 1 of the Judicial Affidavit Rule, the rule
shall not apply in Small Claims Cases. It states that:

“Sec. 1. Scope. –– (a) This Rule shall apply to all actions, proceedings,
and incidents requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari’a
Circuit Courts but shall not apply to small claims cases under A.M. No. 08-8-7-
SC.
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Here, the claim of B based on payment of money arising from the Contract
of Services, and therefore falls under Small Claims Cases, hence not covered by
Judicial Affidavit Rule.

PART 2.1

In 2019, Court of Appeals Justice (CA Justice) Doug Catalido (J. Catalido)
was appointed to the Supreme Court (Court) as Associate Justice. Immediately
after the appointment was announced, several groups questioned his
qualification to the position on the ground that he was not a natural born
Filipino citizen. In the same year, the Court issued an Order enjoining him from
accepting the appointment or assuming the position and discharging the
functions of his office until he is able to successfully complete all the necessary
steps to show that he is a natural born citizen of the Philippines. However, he
continued to exercise his functions as CA Justice.

Since the qualification of a natural born citizen applies as well to CA

Justices, Atty. Catolidafog, a practicing lawyer, asked the Office of the Solicitor
General (OSG), through a verified request, to initiate a quo warranto proceeding
against J. Catalido in the latter's capacity as incumbent CA Justice. The OSG
refused to initiate the action on the ground that the issue of J. Catalido 's
citizenship was still being litigated in another case.

When the OSG refused to initiate a quo warranto proceeding, Atty.

Catolidafog filed a petition for certiorari against the OSG and certiorari and
prohibition against J. Catalido. The petition for certiorari against the OSG
alleged that the OSG committed grave abuse of discretion when it deferred the
filing of a quo warranto proceeding against J. Catalido, while the petition for
certiorari and prohibition against J. Catalido asked the Court to order him to
cease and desist from further exercising his powers, duties and responsibilities
as CA Justice.

In both instances, Atty. Catolidafog relied on the fact that, at the lime of J.
Catalido's appointment as CA Justice, his birth certificate indicated that he was
a Chinese citizen and his bar records showed that he was a naturalized Filipino
citizen.

May the OSG be compelled, in an action for certiorari, to initiate a quo

warranto proceeding against J. Catalido?

Suggested answer:

No, the OSG cannot be compelled to initiate a quo warranto

proceeding.

A quo warranto proceeding is generally defined as an action against a

person who usurps, intrudes into or unlawfully holds or exercises a public
office. The Solicitor General must have good reason to believe that any case
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specified in Section 1, Rule 66 of the Rules of Court can be established by proof

before he files such action.

The OSG did not unlawfully neglect the performance of its duty, and/or
act without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction, when it refused to initiate the action
on the ground that the issue of J. Catalido 's citizenship was still being litigated
in another case.

Moreover, it is to be stressed that in every special civil action under Rule

65, a party seeking the writ whether for certiorari, prohibition or mandamus,
must be able to show that his or her resort to such extraordinary remedy is
justified. (Spouses Dacudao vs. Secretary of Justice, G.R. No. 188056; January 8,
2013)

Part 2.2

Atty. Dalmo, the Director of the National Bureau of Investigation, applied

for a search warrant before the Executive Judge of RTC Manila. He alleged in his
application that a certain alias Jiango was keeping about 10 kilos of shabu in a
wooden cabinet located at Xillian's Store in Paseo de Sta. Rosa, Laguna. The
Executive Judge of Manila personally examined Atty. Dalmo and his witnesses
and thereafter issued the search warrant particularly describing the place to be
searched and the items to be seized.

Can the search warrant issued by the Executive Judge of Manila be

enforced in Laguna?

Suggested answer:

The search warrant cannot be enforced in Laguna.

The Supreme Court has scrapped the contentious power of executive

judges of Manila and Quezon City courts to issue search warrants outside their
judicial regions.

This is stated in the promulgated rules of the Supreme Court requiring

the use of body cameras in the implementation of arrest and search warrants.
(Rules on the Use of Body-Worn Cameras in the Execution of Warrants A.M.
No. 21-06-08-SC).

Chapter V, Section 12 of A.M No. 03-8-02-SC, as amended, is repealed by

Rule 3, Section 2 of these Rules.

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Part 2.3

Decision of the Regional Trial Court (RTC) rendered in the exercise of its
appellate jurisdiction may be appealed directly to the Supreme Court (SC)? Why
or why not? (Assume that the issues to be raised on appeal involve purely
questions of law).

Suggested answer:

In an appeal from RTC judgment in the exercise of its appellate

jurisdiction, the appeal should be to the Court of Appeals even if the
questions are only legal. (Section 2 [c] Rule 42, Rules of Court).

Part 2.4

Arnulfo lent P1 Million to his friend Roberto on the condition that

Roberto execute a promissory note for the loan and a real estate mortgage over
his property located in Masbate City. Roberto complied. In his promissory note
dated September 20, 2016, Roberto undertook to pay the loan within a year
from its date at twelve percent (12%) per annum interest. In June 2017, Arnulfo
requested Roberto to pay ahead of time but the latter refused and insisted on
the agreement. Arnulfo issued a demand letter and when Roberto did not
comply, Arnulfo filed an action to foreclose the mortgage. Roberto moved to
dismiss the complaint for lack of cause of action as the debt was not yet due.
The resolution of the motion to dismiss was delayed because of the retirement
of the judge.

a) On 01 October 2017, pending resolution of the motion to dismiss,

Arnulfo filed an amended complaint alleging that Roberto's debt had in the
meantime become due but that Roberto still refused to pay. Should the
amended complaint be allowed considering that no answer has been filed?

b) Would your answer be different had Arnulfo filed instead a

supplemental complaint stating that the debt became due after the filing of the
original complaint?

Suggested answer:

a) No. Even though an amendment of the complaint before answer is a

matter of right, lack of a cause of action at the commencement of a suit is not
cured by the accrual of a cause of action subsequent thereto, such that an
amendment setting up the after-accrued cause of action is not allowed.

b) No, because a complaint whose cause of action has not yet accrued yet
when filed, does not gain any standing in court such that no amendment,
whether by amended or supplemental pleading, can cure the deficiency. The
subsequent cause of action that arose may only be subject of a different suit but

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cannot be pleaded as a supplement to the complaint where no cause of action

exists. Simply put, no amended or supplemental complaint is allowed.

PART 2.5

On 20 August 2021, Ricky Goma filed a Complaint with the RTC of

Bacolod City for a sum of money, damages and payment of attorney’s fees
against Tsong Joey Montesba. The Complaint alleged, among other things, that:
on or about 26 August 2018, Tsong Joey Montesba obtained a loan from Goma
in the sum of P400,000.00 with a voluntary proposal on his part to pay 15%
interest per month; upon receipt of the proceeds of the loan, Tsong Joey
Montesba issued in favor of Ricky Goma, as security, PNB Check No. 1234321,
postdated 26 October 2018, in the sum of P460,000.00, covering
the P400,000.00 principal loan amount and P60,000.00 interest charges for
one (1) month; when the check became due, Montesba failed to pay the loan
despite several demands; thus, Ricky Goma filed the Complaint praying for the
payment of P2,380,000.00, representing the principal loan and interest
charges, plus 25% of the amount to be awarded as attorney’s fees, as well as the
cost of suit.

Summons was served, but despite his receipt thereof, Tsong Joey
Montesba failed to file his Answer. Consequently, he was declared in default
and upon motion, Ricky Goma was allowed to present evidence ex parte.

After considering the evidence presented by Goma, the RTC rendered a

Decision on 24 September 2021 in his favor, ordering Mon Montesba to pay
Gomez the following amounts: 1) P400,000.00 representing the principal
amount of the loan; 2) P570,600.00 representing interest at the rate of 24%
per annum reckoned from August 26, 2018 until the present; and 3)
P150,000.00 representing attorney’s fees.

On 28 September 2021, Montesba filed a Petition for Relief from

Judgment alleging that there was no effective service of summons upon him
since there was no personal service of the same. The summons was received by
one Mrs. Alicia Silverwares, who was not authorized to receive summons or
other legal pleadings or documents on Montesba’s behalf. He attributes his
failure to file an Answer to fraud, accident, mistake or excusable negligence. He
claimed that he had good and valid defenses against petitioner and that the RTC
had no jurisdiction as the principal amount being claimed by petitioner was
only P400,000.00, an amount falling within the jurisdiction of the Municipal
Trial Court (MTC).

Montesba filed a Motion for Reconsideration of the dismissal of his

Petition for Relief, stating that his counsel’s failure to appear was not
intentional, but due to human shortcomings or frailties, constituting honest
mistake or excusable negligence.

On 21 October 2021, the RTC granted Montesba’s Petition for Relief from
Judgment and set aside its Decision dated 24 September 2021 on the ground of
lack of jurisdiction.
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Goma raises whether or not the Regional Trial Court has jurisdiction over this
case for sum of money, damages and attorney’s fees where the principal
amount of the obligation is P400,000.00 but the amount of the demand per
allegation of the complaint is P2,380,000.00. Decide.

Suggested answer:

Basic as a hornbook principle is that jurisdiction over the subject matter

of a case is conferred by law and determined by the allegations in the complaint
which comprise a concise statement of the ultimate facts constituting the
plaintiffs cause of action. The nature of an action, as well as which court or body
has jurisdiction over it, is determined based on the allegations contained in the
complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled
to recover upon all or some of the claims asserted therein. The averments in
the complaint and the character of the relief sought are the ones to be consulted.
Once vested by the allegations in the complaint, jurisdiction also remains
vested irrespective of whether or not the plaintiff is entitled to recover upon all
or some of the claims asserted therein.

In that loan agreement, respondent expressly agreed to pay the principal

amount of the loan, plus 15% monthly interest. Consequently, petitioner is
claiming and praying for in his Complaint the total amount of P2,380,000.00,
already inclusive of the interest on the loan which had accrued from 2018. Since
the interest on the loan is a primary and inseparable component of the cause of
action, not merely incidental thereto, and already determinable at the time of
filing of the Complaint, it must be included in the determination of which court
has the jurisdiction over petitioner’s case. Using as basis the P2,380,000.00
amount being claimed by petitioner from respondent for payment of the
principal loan and interest, this Court finds that it is well within the
jurisdictional amount fixed by law for RTCs.

PART 2.6

The Ombudsman found probable cause to charge with plunder the

provincial governor, vice governor, treasurer, budget officer, and accountant.
An Information for plunder was filed with the Sandiganbayan against the
provincial officials except for the treasurer who was granted immunity when
he agreed to cooperate with the Ombudsman in the prosecution of the case.
Immediately, the governor filed with the Sandiganbayan a petition for
certiorari against the Ombudsman claiming there was grave abuse of discretion
in excluding the treasurer from the Information.

a.) Was the remedy taken by the governor correct?

b.) Will the writ of mandamus lie to compel the Ombudsman to include
the treasurer in the Information?

Suggested answer:

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a) No, the remedy taken by the governor is not correct.

It is to be stressed that in every special civil action under Rule 65, a party
seeking the writ whether for certiorari, prohibition or mandamus, must be able
to show that his or her resort to such extraordinary remedy is justified by the
absence of an appeal or any plain, speedy and adequate remedy in the ordinary
course of law. He must allege in his petition and establish facts to show that any
other existing remedy is not speedy or adequate. The Governor should have
filed a Motion for Reconsideration with the Ombudsman.

b) No, the Writ of Mandamus will not lie to compel the Ombudsman.

The said writ cannot be used to direct the manner or the particular way
discretion is to be exercised, or to compel the retraction or reversal of an action
already taken in the exercise of judgement or discretion. (Ampatuan vs. De
Lima, GR No, 197291; 03 April 2013)

PART 2.7

A special law was passed declaring Mt. Arayatofuji as a protected area

since it was a major watershed. The protected area covered a portion located
in Municipality Amalgam of the Province Ilo and a portion located in the City of
Zonri of Province Ylo. Manganto is the leader of Samahan ng Tagapag-ingat ng
Arayatofuji (STA), a people's organization. He learned that a portion of the
mountain located in the City of Zonti of Province YIo was extremely damaged
when it was bulldozed and leveled to the ground, and several trees and plants
were cut down and burned by workers of World Pleasure Resorts, Inc. (WPRI)
for the construction of a hotel and golf course.
Upon inquiry with the project site engineer if they had a permit for the project,
Manganto was shown a copy of the Environmental Compliance Certificate
(ECC) issued by the DENR-EMB, Regional Director (RD-DENR-EMB).
Immediately, Mangato and STA filed a petition for the issuance of a writ of
continuing mandamus against RD-DENR-EMB and WPRI with the RTC of
Province Ilo, a designated environmental court, as the RD-DENR-EMB
negligently issued the ECC to WPRI.
Was the court correct in motu proprio dismissing the petition? Why or why not?
Explain.

Suggested answer:

No, the RTC of Province Ilo was not correct in motu proprio dismissing
the petition.

Venue is not jurisdictional and it can be waived in a special civil action

for Continuing Mandamus. (Dolot vs. Paje, G.R. No. 199199; August 27, 2013).

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2021 MOCK BAR EXAMINATIONS IN REMEDIAL LAW
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PART 2.8

Bernardo sold a parcel of land to Bambu with right to repurchase within

one (1) year. Bernardo remained in possession of the property. When Bernardo
failed to repurchase the same, title was consolidated in favor of Bambu. Despite
demand, Bernardo refused to vacate the land, constraining Bambu to file a
complaint for unlawful detainer. In his defense, Bernardo averred that the case
should be dismissed because Bambu had never been in possession of the
property. Is Bernardo correct? Why or why not? Explain.

Suggested answer:

The contention of Bernardo is not meritorious.

In Cabrera, et al. v. Getaruela, the Court held that a complaint

sufficiently alleges a cause of action for unlawful detainer if it recites the
following:

1. initially, possession of the property by the

defendant was by contract with or by
tolerance of the plaintiff;
2. eventually, such possession became illegal
upon notice by plaintiff to defendant of the
termination of the latter's right of possession;
3. thereafter, the defendant remained in
possession of the property and deprived the
plaintiff of the enjoyment thereof; and
4. within one year from the last demand on
defendant to vacate the property, the plaintiff
instituted the complaint for ejectment.

In view of the foregoing, the complaint sufficiently alleges a cause of

action for unlawful detainer, and therefore, should not be dismissed.

---N O T H I N G F O L L O W S---

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2021 MOCK BAR EXAMINATIONS IN REMEDIAL LAW